text:
    ANDERSON v. INTERNATIONAL CREOSOTING & CONSTRUCTION CO. et al.
    No. 7326.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.
    John P. Godfrey, Many, for appellant.
    Fraser & Fraser, Many, for appellees.
   TALIAFERRO, Judge.

Plaintiff, an illiterate colored man, age fifty-six, seeks judgment against International Creosoting and Construction Company, and the Travelers Insurance Company, alleged carrier of its workmen’s compensation insurance, for $20 per week for four hundred weeks and for medical and hospital expenses, on the theory that he is -permanently totally disabled to do work of a reasonable character, the result of an accident to him while in the immediate employment of or while working under one C. J. Davis, “an employee, agent or contractor of said International Creosoting and Construction Company”. He alleged that he was injured by a cross tie, at the time being loaded by him into a box car, falling against his right leg, fracturing the fibula, and severly injuring the tissues, ligaments, tendons, etc. about the locale of the fracture; that said cross tie and others, then being loaded into the box car by said Davis were the property of said International Creosoting and Construction Company who had employed plaintiff to load them; that the business of said International Creosoting and Construction Company is hazardous within the meaning of the Workmen’s Compensation Law.

The defendants deny that the business of the International Creosoting and Construction Company — that of purchasing cross ties — is hazardous under the Workmen’s Compensation Law. Act No. 20 of 1914. They also deny that plaintiff was directly or indirectly in the employ of the International Creosoting and Construction Company and deny that said Davis was an agent, employee or contractor of said International Creosoting and Construction Company. They aver that the relationship of the International Creosoting and Construction Company and said Davis was that of seller and purchaser “under written purchase order or agreement to purchase from C. J. Davis, cross ties when loaded upon freight cars by the said C. J. Davis”; that under said written purchase order the International Creosoting and Construction Company proposed to purchase and become the owner of only such cross ties as should be loaded free on board of freight cars, which ties were to be accepted and paid for on receipt of proper bills of lading.

Plaintiff’s demand was rejected and his suit dismissed at his cost. The court gave written reasons to support its judgment. Plaintiff appealed.

It is plaintiff’s primary contention that the relationship between Davis and the International Creosoting and Construction Company, involving the purchasing, checking and loading of cross ties into railroad cars was that of employer and employee, and that plaintiff was also an employee of the said International Creosoting and Construction Company; that the modus oper-andi between them, alleged and testified to, was nothing more than a subterfuge to conceal the true relationship between the parties and to escape liability to injured workmen under the Workmen’s Compensation Law.

Davis was employed by the International Creosoting and Construction Company at a salary of $85 per month.' His duties were to spot and paint ties and hammer brand each with the initials “ICC”. He was carried on the pay roll as an outside buyer and notwithstanding he was paid a salary he purchased and had manufactured ties that he intended to and did sell to the International Creosoting and Construction Company on written orders from it, which orders will be discussed fully hereinafter.

On February 1, 1947, thirteen days prior to plaintiff being hurt, the business relationship between Davis and the International Creosoting and Construction Company in part was changed. He was taken off of salary and for compensation for his services to the International Creosoting and Construction Company under written orders and otherwise, he was allowed ten cents per tie, which amount was retained until after the ties were shipped by rail to the International Creosoting and Construction Company. Under orders prior to February 1, 1947, an amount less than ten cents per tie was retained from the price, after inspection, to insure loading into cars.

The referred to written order of February 1, 1947, like prior orders, is in the form of a letter, signed by the manager of the tie and timber department of the International Creosoting and Construction Company, directed to Davis, which began as follows,1 to wit: “You may' enter our order for ties in car lots f. o. b. cars KCS Railway at Noble to Many station, at the following prices * * * ”. Then follows the sort of timber from which ties are to be made, the several grades of ties acceptable, and the price to be paid for each grade, f. o. b. cars.

It is also stated in said order that the ties were to be inspected at said stations immediately after which they were painted in such manner as to reflect the grade of eách, hammered, and loaded into' cars. The price of each, less ten cents, was then paid to Davis. It was his duty, immediately after the inspection, etc. to load the ties into a car provided by the railroad, bill same to the International Creosoting and Construction Company at Texarkana, Texas, via KCS Railway. When all of this had been done and Davis had delivered by mail to the International Creosoting and Construction Company the original bill of lading with statement of the ties loaded, showing grade and kinds of ties, a check for the retained ten cents for each tie was mailed by the company to him:'

To fill orders Davis had ties manufactured and purchased others from whom he pleased, hired, fixed the wages of and paid the expense of loading. The plaintiff did the loading for him over a period of several years, and, no doubt, was his employee.

The change in the business relationship with Davis on February 1, 1947, it is explained, was due to the return of normal conditions after the war. It is said that during the period of the war and for some time thereafter it was found, due to the scarcity of competent men, necessary to salary those employees who performed the character of service that Davis rendered.

The established facts warrant the conclusion that, the ties remained the property of Davis until they were inspected, graded, hammered, etc. and Davis paid the price thereof, less ten cents per tie. When all these acts had been performed the ownership of the ties henceforth vested in the International Creosoting and Construction Company.

The purchase orders, supplemented by testimony reflecting the modus operandi thereunder, in our opinion, establish the relation of seller and purchaser between Davís-and the International Creosoting and ■Construction Company. Of course, the business of buying cross ties is-non-hazardous. The business of manufacturing them, it is well established by the jurisprudence of this state, is hazardous. Such business comes within “logging and lumbering” which is declared by the Workmen’s Compensation Law to be hazardous.

It is clear, therefore, that plaintiff had a cause of action against Davis, his employer, to recover compensation for his injuries.

The question arises: Can this cause of action be legally extended' to include the company ?

In the case of Hinton v. Louisiana Central Lumber Co., La.App., 139 So. 554— 557, the term “logging” is defined to be “The business-of felling trees,-cutting them into logs, and transporting the logs to . sawmills or. .market” The Supreme Court in Hogan v. T. J. Moss Tie Company et al., 210 La. 362-369, 27 So.2d 131, 134, said: “Undoubtedly, one engaged in an occupation that requires the felling of trees, sawing them into crossties, hewing them into cross-ties, and - transporting them, comes with this provision.”

In this decision the Court adopted the definition of logging as defined in the Hinton case, supra.

It is apropos to ask, and upon the answer thereto depends plaintiff’s right to compensation, — -what acts are embraced within the term “transportation” ? We know that moving the ties from the woods, where manufactured, to a railroad right-of-way or yard, is clearly included therein, and we also know that after being loaded on cars or trucks that carry them to their ultimate destination, also comes within the term. Is it not reasonable and logical to also include, as an element of transportation, the act of carrying the ties from the railway right-of-way or yard into and depositing them in cars- for shipment? 'We think so. As said before, the ties belonged to the company and it was Davis’ duty as contractor, to .deliver them into cars, and, to perform the manual labor necessary to accomplish this, plaintiff was employed. This act in the chain of events was being done for the company and it was as important to1 its interest, and possibly more so, than any other act that played a part in the delivery and transportation of the ties. To that extent the .company’s business, as 'respects these ties, was hazardous.

The facts of this case and our findings bring it within the operative effect of Section 6 of Act 20 of 1914, as amended, which reads, in part, as follows: “That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his- trade, business or occupation of which he had contracted to perform, and contracts with any person (in this section referred to as. contractor), for the execution by ;or under the contractor of the .whole’ or any part of the work, undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution .of the work or his dependent- any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him”.

We are of the opinion that this case falls without the rule laid down in the several cases cited in the opinion of the lower court, to wit: Hatch v. Industrial Lumber Company, et al., La.App., 199 So. 587; Perkins v. Hillyer Deutsch Edwards, Inc., et al., La. App., 199 So. 590; Vincent v. Industrial Lumber Company, et al., La.App., 199 So. 593; Reed v. J. W. Jeffries Lumber Company, et al., La.App., 9 So.2d 87; Williams v. George, et al., La.App., 15 So.2d 823.

Immediately after the accident plaintiff was carried to the office of Dr. Lloyd H. Murdock, who reduced the fracture and applied a cast. Different kinds of casts were used over a period of four months. He continued to visit the doctor every two or three days. Later, swelling about the wound developed which required diathermy treatments to bring it under control. The last of such treatments was on November .18,1947, some ten months after the accident.

Prior to the date of the accident, plaintiff’s knee joints were affected with arthritis, in an advanced stage, but this condition did not prevent him from efficiently loading heavy crossties into box cars. His ability to do this sort of labor attracted the attention of many persons, including Dr. Mur-dock.

At the date of trial, it was Dr. Mur-dock’s opinion that there existed no total disability because of the fracture. X-ray pictures disclosed satisfactory union. The alignment was splendid. But it is certain that because of the wearing of the cast, with consequent physical inactivity, the bruising of the flesh and tissues, and the disturbance of blood circulation, the pre-exist-ing dormant arthritis in both knees was aroused. It has been activated to the degree that plaintiff is no longer able to handle cross ties, a line of work he followed exclusively for twenty years; and the record clearly discloses him to have been a skillful master at that job.

Citation of authorities to sustain the right to compensation because disability to work has resulted from trauma that arouses to a state of activity a pre-existing dormant disease, is unnecessary.

Plaintiff testified that although the wound had. healed there was continuous pain in and about the locale of the fracture. He and Dr. Murdock testified that at the time of trial the leg would swell and become more painful and sensitive in the evening, when stood upon during the day.

Dr. Murdock was not asked to give his opinion as to the duration of plaintiff’s disability; and we doubt, in view of the apparent care he evinced in answering the questions propounded to him, that he would have ventured one. Arthritis ranks among those maladies deemed to be incurable although its disabling effects may at times be reduced. In view of this situation and of the law which provides that payments of compensation may be terminated upon cessation of the disability, we believe the judgment we shall render herein appropriate, especially in view of the fact that we have found that at the date of trial plaintiff’s disability was total.

Plaintiff is due Dr. Murdock for treatment of the wound, $139. •

It was not proven that the Travelers Insurance Company carried workmen’s compensation insurance oh its co-defendant’s employees. In paragraph one of the petition it is affirmatively alleged that such was the case, but the allegation is‘denied. No evidence was introduced to prove plaintiff’s allegation on this score.

For the reasons herein given, the judgment from which appealed is annulled, avoided and reversed; and for said reasons it is now ordered, adjudged and decreed that plaintiff, Isaiah Anderson do have and recover judgment' against the defendant, International Creosoting and Construction Company, for workmen’s.- compensation at the rate of $20 per week; for the period of his- disability, not exceeding, however, four hundred weeks, the first payment having been due on February 20, 1947; with legal interest on each payment from due date thereof.

It is further ordered, .adjudged and. decreed that plaintiff also have judgment against said defendant in.the sum of $139 for physician’s, services. The right to claim and sue for additional -amounts on this phase of the case, if necessarily incurred, not exceeding in all $500, is reserved to plaintiff.

■ The fee of plaintiff’s counsel herein is fixed at twenty per cent of all amounts collected under this judgment, not exceeding, however, a total of $1,000. Defendant is cast for all costs of court.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    LYNCH v. FISHER et al.
    No. 7350.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.
    . • Browne, Browne & Bodenheimer, Shreveport, R. S. Williams, Mansfield, for appellants. ■ ,
    Smith, Hunter, Risinger & Shuey, Shreveport, for appellee.
   HARDY, Judge.

This is a suit for damages by plaintiff, William I. Lynch, against Harry Fisher, Roger E. Wheless, their insurer, Lumbermen's Mutual Casualty Company, and one Robert Joe Gunter. There was judgment in favor of plaintiff in the sum of $1,185.00, from which judgment all defendants have appealed. Plaintiff has answered the appeal, praying that the judgment be amended by increasing the amount allowed him to the sum of $3,685.00.

With certain exceptions, which are hereinafter particularly noted, the material facts in the unusual train of circumstances involved in this, suit are undisputed.

On July 3, 1945, at or near the hour of 9:00 P.M., one Ira Adkins, who was a Negro employee of defendants, Wheless and Fisher, was driving a pulpwood truck of said defendants north on highway 71 at a point some 26 miles south of Shreveport. Encountering some mechanical difficulty in the operation of the motor, Adkins brought the truck to a stop on the right-hand side of the paved portion of the said highway. While Adkins and a companion, who was a fellow employee, were attempting to start the truck or to push the same off of the highway, but while it was still occupying the greater portion of the right-hand lane, a car driven by the defendant, Robert Joe Gunter, who was accompanied by his wife, collided violently with the rear of the truck. The force of the impact knocked the truck some 30 feet more or less to the right and caused the Gunter car to carom off of the heavier truck to the left of the highway. The violence of the collision, which practically demolished the front portion of the Gunter car, jammed the doors in such manner that Gunter and his wife were imprisoned in the car. The plaintiff, Lynch, whose home was located adjacent to the highway very near the point of the collision, accompanied by two of his friends who were visiting at his home, rushed to the scene of the accident. The Gunter car had caught fire and Lynch immediately attempted, by raising the hood and tearing loose the ignition, wiring to avert the burning of the car and its occupants. He next proceeded, after the left-hand car door of Gunter’s automobile had been pried open by another party, to aid one of his companions in removing Mrs. Gunter from the car. They laid Mrs. Gun-ter on the roadside and proceeded to aid Mr. Gunter to extricate himself from the burning car. Observing that Mrs. Gunter was seriously injured, plaintiff, Lynch, turned back to the car with the avowed intention of removing the cushion therefrom in order that the injured woman might be made more comfortable. In the course of beginning this operation plaintiff noticed a revolver on the floor of the Gunter car, which he removed and handed to the defendant, Gunter, after which he turned back to complete the purpose in mind. Gunter, unquestionably shocked and temporarily deranged as the result of the terrible collision and the obvious serious injury to his wife, who subsequently died, pointed the pistol toward Lynch and fired. The bullet passed through plaintiff’s left ankle, inflicting serious injuries, for which he seeks recovery in this suit.

This case has been before this Court on exceptions urged by defendants, Lynch v. Fisher, et al., La.App., 34 So.2d 513. The principal issues, which primarily involve questions of law, have again been presented to this Court on behalf of defendants by way of defense. They were thoroughly considered on original hearing and again on rehearing by this Court, and our findings were set forth in detail in the opinion in the case cited supra. We will not burden this opinion by again reviewing the reasons which we have heretofore advanced in support of our conclusion, and which are equally as appropriate to the merits as to' the exceptions, there being no change in the effect of the facts adduced on trial.

The points covered in the several defenses urged deal with:

(1). The denial of negligence of the driver of the logging truck as the proximate cause of the accident;
(2). Insistence upon the negligence of defendant, Gunter, as the proximate cause;
(3). The contention that the negligence of defendant, Gunter, was an independent intervening cause;
(4). ' The claim that the incidents which resulted in injury to plaintiff were unforeseeable.

On the basis of the above contentions defendants, Wheless, Fisher and their insurer, urge reversible error. The defendant,. Gunter, bases his appeal on the ground that he was not guilty of contributory negligence.

As to the initial negligence of the driver of the logging truck, the established 'facts admit of no dispute. It is not seriously contended that the-truck driver was not negligent, but rather, it is urged that his negligence was not the proximate cause of the accident.

The facts adduced on trial conclusively show that the truck was largely parked on the paved portion of the highway in such fashion that it obstructed the major part of the right-hand lane on which the car driven by defendant, Gunter, was proceeding; that the truck remained so parked for a period of 15 minutes, more or less, prior to the collision; that the truck had no tail-light nor any other warning signal on the rear end thereof; that no flares had been set, nor was any attempt made to flag approaching or following traffic. Under these facts there is no question as to' the gross’ negligence of the truck driver.

Bearing upon the question of the contributory negligence of defendant, Gun-ter, we find the following facts to be established: That Gunter was driving at a reasonably fast rate of speed which, however, was not excessive under the circumstances; that, noting the approach of an automobile from the opposite direction, he dimmed his lights; that he was on a slight downgrade; that he did not see the truck until, he was within a few feet thereof; that he attempted, in vain, to avert the accident by turning to the left; that his car crashed into the truck, the point of impact being slightly to the left of the center of the rear end.

Under these facts, in conformity with the well established general rule, it follows that Gunter was guilty of contributory negligence unless the circumstances indicate that he comes within one of the exceptions which have been established by our jurisprudence.

Under the line of exceptions which has been developed rather recently by the appellate courts of this State, and which are particular^ exemplified in Gaiennie v. Cooperative Produce Co., Inc., La.App., 199 So. 377, and Rea v. Dow Motor Co., La. App., 36 So.2d 750, our courts have inclined to take into consideration a number of factors, among which may be par-tricularized the locality of the accident, the-position of the parked vehicle, the nature: of the vehicle, and the operation and effect of lighting equipment.

Thus it is to be observed that no' longer can we be entirely influenced to a conclusion by the simple considerations of speed, location, or even the duty of seeing what should be seen. If, under particular conditions and circumstances, the duty of seeing what should be seen is rendered difficult of observation by reason of the fact that little could be seen, the doctrine of contributory negligence is thereby minimized and softened in its application.

Under the facts of the instant case we are inclined to the conclusion that they more nearly comport with those observed in the Gaiennie case, cited supra, than any other authority. The logging truck, which was in use and which caused the hazard,, was a skeletal body at best, not easy to be perceived by the driver of a vehicle approaching from the rear. Parked as it was at somewhat of an angle without that bulk or outline which customarily serves, as a warning by very virtue of its mass, the silhouette presented to a following driver was not of such nature as to impel and focus his attention. Further, considering the proper dimming of lights on the Gunter car and bearing in .mind the fact that the location was not such as would have indicated an obstacle of the nature which was. presented, we readily perceive that the facts in this case aptly lend themselves to-a conclusion which exonerates the defendant, Gunter, of the charge of contributory-negligence.

Flaving determined the gross negligence of the truck driver and, on the basis, of the reasons above expressed, having-vindicated Gunter of any contributory negligence there can no longer be any merit in the contentions óf the other defendants as to this intervening and superseding cause which led to plaintiff's injury.

As to the arguments with respect to the doctrine of foreseeability, etc., we confess that we have heretofore exhausted our limited abilities and capacities and. find nothing new which we might add to the opinion expressed in the case above cited. Lynch v. Fisher, La.App., 34 So.2d 513.

However, we call attention to the fact that a rescuer is favored in the eyes of the law. Certainly it would be difficult to imagine a clearer case of devotion and service to one’s fellowman than that which is evidenced in plaintiff’s actions in the instant case.. Unquestionably, the prompt and efficient action of plaintiff resulted in the removal of two unfortunately trapped and imprisoned fellow-beings from a burning automobile which might well have proved their funeral pyre. The facts show that the automobile completely burned after the rescue had been effected. It is beside the point that the actions of plaintiff and his companion did not serve to prevent • the death of Mrs. Gunter, for the fault was not theirs.

On behalf of defendants, Fisher, Wheless and the insurance' company, counsel urgently argües that the defendant, Gun-ter, was neither . shocked nor temporarily deranged by the effect of the accident.

Careful and repeated examination of the record has served to confirm us in an opposite conclusion. In our minds there is no question as to the fact that Gunter was so shocked,- so deranged, as to have been temporarily insane to such degree as to be unanswerable for his acts. The instances of apparent lucid questions and answers at sporadic intervals following the accident, which are urg.ed by counsel in support of his contention, are not of such import as to support a conclusion of sanity.

The fact and the manner of the shooting are conclusive. In this connection we have particularly observed counsel’s somewhat ingenuous argument which is epitomized in the following extract from his brief before this Court.

“We suggest to the Court that what actually happened was that Mr. Gunter knowing that his wife was hurt pretty badly and thinking that Mr. Lynch, the man who helped him out of his car was the person who had either blinded him or was the driver of the truck, and that in anger at the injury caused to his wife, he intentionally shot Mr. Lynch to repay him' for what he thought was an injury inflicted upon his wife by Mr. Lynch.”

The flight of fancy in which counsel has indulged does credit to his imagination but violence to his sense of logic.

Additionally,' counsel urged a claim of contributory negligence on the part -of plaintiff, predicated upon the claim that Lynch, in conversation with Gunter some months after' the incident, made the observation that at the time he handed the .■weapon to Gunter he debated whether he was to be trusted with its possession and control. .The only support of this claim is found in testimony of Gunter, which,, however, was not -definite and convincing, but to the contrary. The point was stoutly and positively denied by plaintiff, Lynch. We think that Gunter’s testimony in this respect was vague and uncertain and, certainly, it failed of any substantiation or corroboration to an extent which would have made it acceptable as proof.

As to the quantum we note that' our brother of the District Court appeared' to have been influenced to some degree by the fact that plaintiff failed to introduce medical: testimony in support of his claims as to the nature and effect of his injuries. In this connection it is apparent that plaintiff does riot ‘claim'any-perma'nent injury- and certainly the nature' and effect of his injury, 'the pain, suffering, inconvenience and loss'of earnings as a' result thereof,’are overwhelmingly substantiated ’ by uncon-tradicted evidence.

Plaintiff’s leg was placed in a cast for a period of some ten days; he was on crutches for at least thirty days after removal of the cast; was unable to work for three months; suffered considerable pain and discomfort during this entire period in which he was compelled to take sedatives for the relief of pain and to induce sleep, and, according to his uncon-troverted testimony, was still suffering pain at the time of the trial of. the case more than three years subsequent to the injury. The judgment of the District Court allowed the sum of $1,000.00 for “pain, suffering and loss of time from .work”, with the additional amount of $185.-00 representing expenditures for doctors and hospital services.

The answer to the appeal prays for an increase in the amount of the judgment to $3,685.00.

Plaintiff’s testimony as to loss of earnings is absolutely uncontradicted. It is too well established to necessitate citation that a plaintiff is entitled to recover .loss of earnings so long as they are not of a speculative nature.

Plaintiff, a real estate salesman, testified with respect to his earnings by months from January through June, the six months immediately preceding his injury. These earnings were itemized as follows:.

January $512.52
February 1,417.00
March 1,185.00
April 690.00
May . 505.00
June 1;010.00

Recapitulation of these amounts shows that plaintiff averaged slightly .less than 900.00 per month for a considerable period of time immediately preceding the injury. In July, August and September he earned nothing, being incapacitated by reas,on of the' injury. It is zealously contended by counsel for defendants that he could have earned something during this period; that he could have impressed his wife into his service as chauffeur to drive him and his prospects in the inspection of real estate. This argument is somewhat far-fetched and completely speculative. No evidence of any practical effect or probative value was introduced by defendants in this.connection. Counsel may urge that a real estate salesman is not necessarily dependent upon the full use of both legs, but this again is purely argumentative.

The same scale of earnings for a considerable period following his return to work, that is between $800.00 and $900.00 per month, were established by the uncon-tradicted testimony of plaintiff.

On the basis of the facts adduced we' are of the opinion that the amount of the judgment awarded plaintiff should be increased. ' Clearly, plaintiff is entitled to the $185.00 representing medical and hospital expenses. In addition, we think an award of $750.00 covering pain and suffering would be reasonable, and an additional amount of $1,800.00 for loss of earnings over a period of some three months, more or less, would be commensuraté with the loss suffered.

For the reasons assigned, the judgment appealed from is amended and recast as follows :■ ■

It is ordered, adjudged and decreed that there be -judgment in favor of- plaintiff, William I. Lynch, and against the defendants, Harr.y Fisher, Roger E. Wheless, Lumbermen’s Mutual Casualty Company of Chicago, Illinois, in solido, in the full sum of $2,735.00, with legal interest thereon from date of judicial demand until paid. It is further ordered, adjudged and decreed that there be judgment in favor of the defendant, Robert Joe Gunter, rejecting plaintiff’s demands.

All costs of both courts are assessed against the defendants-appellants Harry Fisher, Roger E.' Wheless, and Lumbermen’s Mutual Casualty Company of Chicago, Illinois.

TALIAFERRO, KENNON and HARDY, JJ., sitting.’


text:
    SCHROETER v. NEWSON.
    No. 7320.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.
    Robert J. Newson, Shreveport, for appellant.
    Eugene J; Coen, Shreveport, for appellee.
   HARDY, Judge.

This is a suit on a contract in: which plaintiff claims the sum of $675.00 as the contractual price for plumbing ■ services rendered for the benefit of defendant. After trial there was judgment in favor of plaintiff for the amount claimed in the sum of $675.00 with 5% per annum interest from June 5, 1948, from which judgment defendant appeals.

Defendant filed exceptions of no .cause or right of action in which he embodied a so-called motion to elect and an exception of non-joinder, all of, which pleas were overruled. Defendant, somewhat superficially, urges again these exceptions before this Court, • and his insistence, though slightly pressed, requires some notice h* this Court.

The exception of no cause or right of action is predicated upon the proposition that the contract sued on, which was attached to plaintiff’s petition, required the-work to be completed in a satisfactory-manner, and that plaintiff had failed to allege such satisfactory completion. This point is clearly untenable in view of the fact that - plaintiff’s petition properly alleged that the work had been- performed, and- had been certified • as satisfactory by the' plumbing inspector of the City of Shreveport. Secondarily, defendant urged that plaintiff’s petition attempted to cumu-late two separate and distinct demands and that, accordingly; he should -be compelled-to elect between a suit on contract or upon. quantum meruit. We find nothing in the petition which indicates any inconsistency in plaintiff’s prayer for relief. The claim is based upon- the contract and upon his right to recovery thereon plaintiff exclusively relies.

The plea of non-joinder was based upon consideration of facts and circumstances which transpired long prior to the execution of the contract which is the basis of this suit, and which, perforce, could have no bearing upon this action.

The exceptions were properly overruled.

On the merits a number of defenses were urged. First, that the work of the contract was- never completed; second, that the work was not satisfactory; and third, that plaintiff’s demands were premature; and, finally, that defendant was forced into the execution of the contract sued on through conspiracy and coercion, to which plaintiff was a party.

The first two points may be readily disposed of by the observation that the facts adduced on trial of this case utterly and completely fail to substantiate defendant’s contentions that the work was not completed and that the same was not satisfactory. This conclusion is so overwhelmingly established that we deem it unnecessary to enter into a detailed discussion of these points.

The defense of prematurity is predicated T?,f>on the proposition that plaintiff was cog'hizant of the fact that the contract had not been complied with at the time of filing suit. The only support for this claim is that plaintiff knew that defendant disclaimed the satisfactory completion of the work. Therefore the conclusion upon which this particular defense is based is solely a matter of opinion within the mind of defendant himself. To sustain this defense ■ would be in effect to pronounce the amazing doctrine that a suit is premature so long as a defendant denies the correctness of -a plaintiff’s claim. Though, perhaps, this would have what might be regarded as some salutary effect by way of terminating all litigation, it would, indeed, be such a severe and, final blow to our legal system and the orderly processes of law heretofore recognized that we cannot assume the responsibility for such a pronouncement.

Finally, we come to a consideration of defendant’s claims of conspiracy and coercion in the -execution of the contract. At this point, though we dislike to burden the record further, we find it desirable to quote the body of the contract between plaintiff and defendant, which contains a recapitula-, tion of material facts:

“This agreement entered into between Robert J. Newson, hereinafter referred to as the first party and W. F. Schroeter, hereinafter referred to as the second party, Witnesseth:

“That whereas, the first party hereto has heretofore purchased at public sale in foreclosure of a mortgage, the property described as Lots 188 and 189 of the Cedar Grove Addition to Shreveport, Caddo Parish, Louisiana, with all buildings and improvements thereon and,
“Whereas, the second party hereto did do and perform certain plumbing, this plumbing consisting of a contract to do the necessary plumbing on the building on said Lot 188, and
“Whereas, the second party hereto did file a lien, and this lien appears of record in Mortgage Book 343, page 416 ' of the Records of Caddo Parish, Louisiana, against both the above described lots and the amount of said alleged lien being Six Hundred Thirty Nine and 6%>o ($639.67) Dollars, and,
“Whereas, there is a dispute that exists between the first party and the second party hereto in that the first party does deny that the second party has a lien that would come ahead of his mortgage and also that the plumbing that has been done is of any -value whatsoever to the property unless-it is finished, since party of the first part has a letter from the Plumbing Inspector saying that he will not allow anyone but party-of the second part to finish this plumbing, and also denies that the work that has been done is of anywhere near the amount of Six Hundred Thirty Nine and 6%oo ($639.67) Dollars, and on the other hand, second party hereto does contend that insofar as the amount of Six Hundred Thirty Nine and 6%oo ($639.67) Dollars, being correct is the true and correct amount due him, and that his lien is a prior lien and claim superior to the mortgage hereto foreclosed by the first party as against O. A. Young, the former owner of the property, and now,
“The parties hereto, in the hope of gain, as balanced against the possibility of loss, do enter into the following compromise agreement:
“That the second party does now agree to do all that is necessary to complete the plumbing in a satisfactory manner in and about the premises and especially the building located on Lot 188 and to the end that the Plumbing Inspector of the- City of Shreveport does approve the plumbing and give his written assent thereto; that the first party does agree upon the satisfactory completion of said work to pay the second party Six Hundred Seventy Five no/100 ($675.00) cash, in full satisfaction of all claims and liens due second party.
“That this agreement is the sole and only agreement between the parties hereto and that only what is shown in this agreement and no other understanding has any effect other than what is shown herein.”

The quoted instrument is so clearly a compromise agreement falling directly under the provisions of Article 3071 of the Civil Code that its recitals would be absolutely conclusive and binding upon the parties were it not for defendant’s assertions of coercion and conspiracy, which are equivalent to fraud and which would vitiate the agreement if established.

•. Briefly, defendant contends that plaintiff was issued a permit to do certain plumbing work on the property involved in this lawsuit, described as Lots 188 and 189 of the Cedar Grove Addition to the City of Shreveport; that defendant later became the owner of the property by purchase at foreclosure sale; that the. plumbing work was incomplete and that its completion was necessary to defendant’s use and occupancy-of the property; that plaintiff-claimed an unpaid lien for work performed in the sum of $639.67; that plaintiff refused to coim-píete the plumbing job on the property until defendant entered into the agreement, which is the basis of this suit, for a, stated consideration of $675.00; that by reason of a conspiracy between plaintiff and all the master plumbers of the City of Shreveport defendant could not procure the services of another plumber for the completion of the job; that by reason of a further conspiracy between plaintiff and the plumbing inspector of the City of Shreveport the said inspector refused to permit the completion of the job by any other plumber other than plaintiff; that as a result of these conspiracies defendant was in effect coerced by necessity into executing the compromise agreement and contract for the stipulated amount of $675.00.

All of the above facts dow.n to the first claim of conspiracy are established and they are comprehended in the compromise agreement and contract above set forth. It cannot be successfully denied that plaintiff had performed work on the property prior to defendant’s acquisition thereof and that he claimed a lien in the amount of $639.67. It further appears to be exceedingly clear that plaintiff, quite justly,' was insistent upon effecting an agreement which would assure him the recovery of the amount of his claim, together with such additional sum as might be necessary for the completion of the work, which apparently was comparatively slight in extent'.' All of these facts are implicit in the record and they were all known to both parties and were the subject of considerable disagreement, dispute and contention', which was defitiitely terminated and settled by the compromise agreement.

Under these facts we seriously doubt if even defendant’s claims of conspiracy and coercion could properly be heard in support of his attempt to set aside the effect of the agreement. Be this as it may, defendant again has signally failed to support his charges except through deductions and conclusions based upon untenable speculations. The clear-cut, convincing and uncontradicted testimony of the plumbing inspector of the City of Shreveport establishes the fact that'under existing municipal ordinances, and regulations pursuant thereto, having once issued a permit for a specific job to a particular contractor, he is prohibited from issuing another permit until a release of the original certificate has been effected. The practical reasons for such procedure are obvious. .

Similarly there is no support in the record of the charges of conspiracy between the plumbers of Shreveport and the plaintiff and the plumbing inspector.

There appears to be no ground for criticism, and, certainly, it is no defense, that plaintiff insisted upon an agreement which would assure his recovery of the amount represented by his services to the property involved. If the compromise agreement had not been concluded, unquestionably plaintiff would have been relegated to the necessity of instituting suit for the establishment of his claimed lien, the recognition thereof and the recovery of the amount covered thereby. It was for the plain purpose of avoiding this necessity, which unquestionably was in the mind of defendant as well as plaintiff at the time, that the compromise agreement was worked out. If plaintiff failed to avoid litigation by the pursuit of this means, the fault is chargeable only to the defendant.

One other point has been raised by defendant, who claims error in the allowance of interest of 5% per annum from June S, 1948. Reference to the contract shows that the amount became due on completion of the work. Plaintiff alleged that the work was satisfactorily completed, as evidenced by certificate of completion from the city plumbing inspector, on May 20, 1948, from which date he prayed for the allowance of interest. The judgment of the District Court allowed interest from date of June 5, which was the date of plaintiff’s formal demand upon defendant for payment.

Under the plain provisions of Article 1938 of the Civil Code, legal interest began to run at the time the amount became due, which in -this instance was May 20, 1948. Due to the fact that plaintiff has not chosen ,to answer the appeal, defendant, in reality, has gained the advantage of the accrued interest between the dates of May 20th and June 5th.

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


text:
    YOUNG v. CENTRAL SURETY & INSURANCE CORPORATION.
    No. 7331.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.

      Gahagan & Pierson, Natchitoches, Beard & Blue, New Orleans, for appellant.
    John Makar, Natchitoches, for appellee.
   HARDY, Judge.

This is a claim for compensation in which plaintiff alleged permanent and total disability resulting from an accident suffered in the course of his employment. After trial there was judgment in favor of plaintiff in the sum of $19.66 per week for a period not to exceed 100 weeks, less credit of amounts paid. From this judgment defendant has appealed, and plaintiff has1 answered the appeal, praying for the allowance of the award for a period not exceeding '400 weeks.

Defendant-appellant has filed in this Court a motion to dismiss the answer to the appeal on the ground that the same was filed too late. Admittedly the answer was filed in this Court prior to argument. Counsel for defendant-appellant takes the position that filing should have been made not less than three days prior to argument, under the provisions of Article 890 of the Code of Practice. The applicable portion of the article referred to provides: “ * * * in the courts of appeal for the several circuits of the State such answers to appeal shall be allowed filed before argument within the first three days of the actual sittings of any regular session of said courts of appeal.”

Rule 10 of the Rules and Orders of the Court of Appeal,. Second Circuit, of the State of Louisiana, .contains the provision, inter alia, that answers to appeals must be filed with the Clerk of Court “within the delay, fixed by law”.

This Court began its June term on June 6th and, admittedly, plaintiff’s answer to the appeal was properly filed before the hearing of argument in the case on the said date. Such filing constituted a timely compliance with the provisions of the article of the Code of Practice and the rules of this Court, and, accordingly, defendant’s motion to dismiss the answer to appeal is without merit and is disallowed.

The only question before us bears upon the extent of disability suffered by plaintiff.

The undisputed facts show that on or about May 27, 1947, plaintiff, employed as a bull wheel operator in a sawmill of defendant’s assured, in Natchitoches Parish at a weekly wage of $30.25, was injured when he became entangled in the steel cable of the bull wheel. Plaintiff lost by amputation one and one-half phalanges of the little finger and the distal phalanx of the middle finger and ring finger, respectively, of his right hand. Compensation was paid at the rate of $19.66 per week for a total of 13.weeks, at which time such payment was discontinued.

Plaintiff also alleged injuries to his shoulder in the accident complained of, but the record fails to satisfactorily establish such injury. It is true that plaintiff testified as to this injury and the continuing effects thereof, but it is significant that this testimony was not corroborated and that the injury was not brought to the attention of any of the three examining physicians, whose testimony appears in the record, by plaintiff at the time of his several physical examinations. We are therefore of the opinion that plaintiff has failed to sustain the requisite burden of proof with respect to this particular injury.

As we have stated, there is no question as to the nature of the injury to plaintiff’s right hand, which was particularly described by a statement dictated into the record on trial of the case by the District Judge as follows:

“The Court: The description of the right hand of the plaintiff discloses apparently no injury to the ’thumb or index finger. The middle finger seems to have one phalange off, and the ring finger has one phalange off, and the little finger has two * * * one and a half. When the hand is closed, the only finger touching the palm is the index finger. The middle finger and the ring finger lack a quarter of an inch, - as to the first, and a half inch as to the second, of touching the palm, and the little finger sticks straight up.
“Mr. Malear: I would like to have you press down on that, please.
“The Court: (Pressing down on'plaintiff’s hand) There seems to be a stiffness in the joints of the fingers when force is applied to compel them to close, and they did not close.”

Defendant contends that the only loss suffered by plaintiff was the specific injury to the tips of the three fingers of his right hand, and that as a result he is entitled to compensation only for the specific loss provided-in subdivision 1, Paragraph (d) 11, of ’Section 8 of Act No-. 20 of 1914, as amended, Act. No. 242 of 1928, p. 358. Alternatively, it is argued on the basis of Spillers v. Jonesboro Gin Co., La.App., 193 So. 509, on which authority the District Judge predicated his award, that the judgment should be reduced to accord with-the percentage, of impairment in the use of plaintiff’s hand.

Counsel for plaintiff advances the proposition that plaintiff’s injuries are of such nature as to prevent him from performing the duties to which he was accustomed as efficiently as was his wont before the accident, as the result of which he is barred from competing with able-bodied men in the same type of employment and is unable to perform'work of the “same or similar character as that which he was accustomed to perform”. In support of this premise counsel cites the recent Supreme Court case of Hughes v. Enloe et al., 214 La. 538, 38 So.2d 225.

Reverting to the written opinion of our distinguished colleague of the District ■Court, we find the following observations:

“There was a considerable injury to the hand and some of it is permanent. Nevertheless, I do not think the injury sufficient to prevent his performing the duties of bull wheel operator, perhaps to some degree less efficiently, but still do it, and, therefore, I do not believe he is totally and permanently disabled. I do not think a decree for four hundred weeks would be fair to the’ defendant. I likewise do not think a few weeks would be fair to the plaintiff. Rather I think a decree of one hundred weeks, the number designated for the impairment of a physical function would come nearer doing justice to both than any other decision I could make. His fingers have a good deal of stiffness there, and his ability to use the hand is considerably impaired. When you consider the manner in which the plaintiff was injured — that his hand was caught in the cable of a bull wheel and his arm was pulled thru until his shoulder stopped him, you can’t be satisfied with an allowance of 60 weeks for the loss of three fingers. It may be, under the law, that I am supposed to allow four hundred weeks for total permanent disability, or in the event I hold that he is not so disabled that I must fix the time based on loss or partial loss of -fingers. Suppose, on the other hand, a Judge’s sense of justice is violated by either holding. Under such a circumstance, I rather think the holding in the case of Spillers v. Jonesboro Gin Co., Inc., [La.App.], 193 So. 509, would apply, in which it was held:
‘“Loss of one joint from each of three fingers, which did not disable employee to do work of any reasonable character, but which did produce disfigurement and inter-, fered with manual dexterity, is compensa-ble as for impairment of a physical function.’ ”

We cannot refrain from expressing our thorough understanding and sympathy with the position taken by our brother of the District Court. Much the same attitude has been frequently expressed in the pronouncements of this Court. However, we are unable to distinguish the facts in the instant case and the facts of the Hughes case, cited supra, in which the Supreme Court reversed the judgment of this Court to such extent as we had denied plaintiff’s claim for permanent and total disability.

The facts in the Hughes case showed that plaintiff, employed as a swamper in a sawmill, received an injury of the right forearm, causing a fibrosis of the tendons and muscles thereof, which resulted in a 25 to 35% limitation of flexion in the four fingers of his right hand. By reason of the injury plaintiff was unable to close his hand completely; had lost the power of gripping with the hand and could not firmly grasp the tools and instruments formerly used in the course of his employment, such as an axe, a rope, a cant hook, etc. The Supreme Court held that the evidence showed that the employee could not continue to perform the work required of a swamper, was not re-employed, and that his ability to perform work of the same or similar character as was performed prior to the injury entitled him to compensation for permanent and total disability.

In the instant case almost the same identical facts are established by the record. Plaintiff suffered the loss of portions of the three named fingers of the right hand, as the result of which he is unable to close his hand; he suffered the loss, to some degree at least, of the power to grip, and limitation in the use of the hand of not less than 25%, which, insofar as the record discloses, must be considered permanent. Additionally, it is shown that plaintiff could not continue to handle and use with full effectiveness a cant hook, which instrument is manipulated by a bull wheel operator at irregular intervals for the purpose of disengaging logs of varying sizes from the carriage. According to plaintiff’s uncon-tradicted testimony his only effort to use a cant hook, which effort he had made a short time prior to trial of the case, disclosed his inability to grip and operate the instrument and caused severe pain in the stumps of the amputated fingers. The record also establishes the fact that plaintiff had not sought, nor had he been offered, re-employment in the same work which he had been performing at the time of the accident.

Prior to his employment as a bull wheel operator, which was of very brief duration, plaintiff had been variously employed in the pulpwood and-logging industry, particularly as a .pulpwood loader. In connection with this employment the testimony shows that plaintiff had some skill as a mechanic, which unquestionably was of considerable value and benefit to his employers. Subsequent to the accident the only employment in which plaintiff had engaged was that of a driver of a pulpwood truck, which work he had followed for some period of time until his services were no longer needed. Nevertheless, there remained some question as to his efficiency as' a truck driver and, unquestionably; plaintiff will be considerably handicapped in competing for jobs with able-bodied men.

On behalf of defendant considerable emphasis is placed on the fact that the operation of a bull wheel has been performed iri instances by handicapped persons, and, specifically,' the testimony of one witness showed that despite the fact that he had suffered a severe burn to his right hand, which disabled him as far as the use of the fingers were concerned and left several of the fingers of his right hand grown to the palm thereof, he had been employed as a bull wheel operator. Nevertheless, an obvious distinction may be made in the case of an individual who suffered a handicap in. infancy and has been forced to overcome the results thereof and one who has been similarly handicapped as the result of an injury sustained in the period of his adult manhood. Further, the testimony of the witness in question discloses the fact that he could not handle a cant hook efficiently under all circumstances and that on occas-sions he required help. This fact clearly would militate against competition for employment with able-bodied individuals. This factor has been recognized as a material consideration by the Supreme Court. Washington v. Independent Ice & Cold Storage Co., 211 La. 690, 30 So.2d 758, citing Henry v. Higgins Industries, La.App., 24 So.2d 402.

The testimony of Mr. James F. Lawney, a man of long experience. in the lumber business, for whom plaintiff had worked for some 7% years as a pulpwood loader, is particularly convincing. This witness testified that in his opinion plaintiff could not use a pulpwood hook nor a cant hook with' proper efficiency, and that his ability to secure employment as "a pulpwood loader was questionable since it would take him too long to load a car, which was the basis of paymént.

In view of these facts, and with proper .consideration and respect for the holdings of the Supreme Court in the cases cited, we are of the opinion that plaintiff is, entitled.to an award of compensation for permanent total disability.

For the reasons assigned the judgment appealed from is reversed insofar as it denied plaintiff his claim for compensation for permanent and total disability, and it is now ordered that plaintiff be, and he is hereby, awarded compensation to the extent of $19.66, being 65% of his established weekly wages, for a period not to exceed 400 weeks, less amounts previously paid. In all other, respects, the judgment appealed from is affirmed at defendant’s cost.


author: TALIAFERRO, Judge.

text:
    BREWSTER et ux. v. PAYNE et al.
    No. 7347.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.
    Love & Bailey, Shreveport, for appellants.
    G. Randell Whitmeyer, Shreveport, E. W. Goetz, Jr., Shreveport, James R. Alexander, Shreveport, for appellees.
   TALIAFERRO, Judge.

Plaintiffs sue to recover $300 deposited with Mrs. A. A. McKelvy, doing business as McKelvy Realty Company, a licensed realtor, by Mr. and Mrs. T. D. Payne as earnest money under a contract wherein the Paynes, on certain conditions, agreed to purchase plaintiffs’ residence at 410 Prospect Street in the City of Shreveport, Louisiana. .The alleged contract is attached to and made a part of the petition. Mrs. McKelvy and the Paynes are impleaded as defendants.

It is alleged that the Paynes refused to comply with said contract, without valid cause, by accepting title to the property and paying the price of the same, and that the realtor not having- succeeded in consummating the sale, earned no commission and has no legal right to longer withhold from petitioners the said earnest money. .They pray that she be ordered to deliver said amount to them and, in the alternative, for judgment in solido against all defendants.

Exceptions of no cause and no right of action were filed by the Paynes, which were referred to the merits. They are not here urged.

The Paynes assert, for reasons assigned in their answer, that the deposit should be returned to them; that plaintiffs have no interest in same and are without right to demand delivery thereof to them. They attack the instrument sued upon and attached to the petition as being a nudum pactum, null and void, for the following named reasons:

1. That plaintiffs did not sign same;
2. That the instrument is too vague and indefinite to admit of judicial enforcement;
3. That same contains potestative conditions and lacks mutuality of obligations.

In the alternative, should said instrument not be held to be a nudum pactum, these defendants plead, because of error on their part as to the quality and condition of the residence of plaintiffs, that the contract is unenforceable. This alleged error has reference mainly to the existence of old termite infestation that had practically destroyed many of the foundation timbers of the building. As we do not believe the outcome of the suit to any extent turns upon this defense, further discussion of the same will not be made.

Other matters, secondary in importance to a decision, and which mainly have to do with Mrs. McKelvy’s status in and connection with the case, have ceased to play any part herein because of her action, subsequent to judgment, hereinafter stated. She did answer the petition but for the above named reason its substance need not be here given.

In reconvention, T. D. Payne, as head and master of the community between him and his wife, prays for judgment against plaintiffs for $600, being double the amount of earnest money.

The lower court gave judgments as follows, to wit:

The suit as to Mr. and Mrs. Payne was dismissed. There was judgment in recon-vention in favor of T. D. Payne and against Carl L. Brewster in the sum of $300 with five per cent (5%) per annum interest from June 6, 1948, and decreeing the nullity of the instrument sued on and attached to the petition.

There was also judgment in favor of Carl L. Brewster and against Mrs. Mc-Kelvy for $300, with like interest from June 10, 1948.

In all respects the demands of Mrs. Brewster and Mrs. Payne were dismissed. Brewster and Mrs. McKelvy in equal proportions were cast for all costs.

Only Carl L. Brewster appealed.

Mrs. McKelvy has acquiesced in the judgment so far as it involves her. She has in this court filed a motion wherein she states that with the permission of the lower court she has deposited with the clerk thereof, the $300 received by her from the Paynes, plus interest and one-half of the cost of court, to the time of said deposit, or a total of $386.09; that she does not desire further to contest the case or challenge the correctness of said judgment. She prayed: “Wherefore, mover prays that her tender of $386.09 be accepted and that the same be deposited in the register of the Court subject to the further orders of this Honorable Court and the appellate court, and that mover, Mrs. A. A. McKelvy, be released of any further liability herein whatsoever.”

The instrument in question is a printed form plus written additions. It begins as a receipt. It says: “Received from T. D. Payne $300.00 earnest money, to be applied as part payment of the purchase price of the property hereinafter described, this day sold” etc.

The property is thereafter described. Then follows: “Consideration: $10,000.00 Terms: FHA Loan, Bali Cash.”

This writing is followed by: “Special Agreements: Possession to be arranged. Will give possession in 20 days upon signing of deed at 639 Robinson for T. D. Payne”.

This instrument is signed as follows:

“McKelvy, Realtor
By: Mrs. A. A. McKelvy
Accepted by: Carl L. and
Neva McD. Brewster — Owner
Accepted by: T. D. Payne—
Purchaser
Mrs. T. D. Payne.”

The quoted written portions of the contract on their face are almost entirely meaningless. It required considerable testimony to explain their true meaning and intent. As the same relates to the Brewster property, the price was $10,000 cash to him but it was understood that part of this price would 'be gotten through a loan on the property, underwritten by the FHA. That agency had made a conditional commitment of $5,200.

As to the special agreement which related to Payne’s property, it meant that Payne would give possession of his property at 639 Robinson Place 20 days after deed thereto had been signed by him; in other words, if and when he sold the same. Mrs. McKelvy was trying to find a purchaser for the Paynes’ property for a price of $10,500, but failed. She and the Paynes did not really reach an agreement with respect to the sale of their property.

For Payne to acquire the Brewster property two important things had to happen: (1) Consummation of a loan of $5,200, underwritten by the FHA on the property, and (2) The Paynes had to make sale of their own property in order to pay Brewster the $4,800 due him in addition to the proceeds of the guaranteed FHA loan.

It is obvious that the agreements were not enforceable by either contractant as against the other. No one had the power to force the effecting of the loan of $5,200 on the Brewster property. The Paynes did not bind themselves to sell their own property and all parties in interest knew that unless this was done the whole proposition would collapse, as did happen. It is manifest that the success of both of the proposed sales was entirely dependent upon the wills of the Paynes.

The foregoing conclusions bring the agreement within that class of contracts denounced by the Civil Code as being null because of their potestative character. Article No. 2034 of the Civil Code reads as follows: “Potestative condition on part of promisor voidable. — -Every obligation is null, that has been contracted, on a potesta-tive condition, on the part of him who binds himself.”

Article No. 2035, in part, reads as follows: “The last preceding article is limited to potestative conditions, which make the obligation depend solely on the exercise of the obligor’s will.”

The effect of declaring null and void the instrument sued upon has the effect of restoring the status quo ante. All persons parties thereto-, perforce, are relieved of the obligations therein attempted to be assumed by them, and to fully attain this status the $300 paid thereunder should be returned to T. D. Payne; and since this amount has been deposited in the registry of the lower court by one of the defendants after rendition of judgment below, the case will have to be remanded to the lower court for such action and judgment as are legal and proper under the changed conditions. To effectuate this and the judgment appealed from will have to be set aside.

For the reasons herein assigned, the judgment from which appealed, is set aside and this case is now remanded to the lower court for the purposes above stated. Costs of appeal are assessed against the appellant.


author: KENNON, Judge.

text:
    CHAIN BATTERY & AUTOMOTIVE SUPPLY, Inc. v. SWAN.
    No. 7351.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.

      Love & Bailey, Shreveport, for appellant.
    Irion & Switzer, Shreveport, Harry A. Johnson, Jr., Shreveport, for appellee.
   KENNON, Judge.

On November 26, 1948, plaintiff filed this suit against defendant for a balance of $452.39, allegedly due on a note for $546.49, signed by defendant, dated May 10, 1943 and payable June 9, 1943. The defendant filed a plea of vagueness in answer to which plaintiff filed a supplemental petition setting forth in detail eight credits given on the note between May 21, 1943 and July 29, 1943 and a final credit of $10 dated November 29, 1943.

Defendant then filed a plea of prescription of five years under Article 3540 of the Civil Code of Louisiana, denying that any payments had been made by him on the note or that any credits had been authorized.

After a trial on the issues thus tendered, the District Court rendered judgment sustaining the plea of prescription and the case is before us on plaintiff’s appeal from that judgment.

On the trial of the plea, defendant admitted signing the note, stating that it was for equipment he bought from plaintiff, which plaintiff company had later moved out of his shop and resold.

An officer of plaintiff company testified that the note was credited on May 21, 1943 for $4, being a cash payment made by an employee of the plaintiff company for work done by defendant and paid to plaintiff as a convenience to both parties; that a credit on May 31, 1943 of $19.67 represented a credit balance on the operating account of defendant, which account was, at his direction, liquidated by entering this amount as a credit on the note. He further testified that cash payments were made by defendant as follows: June 3, 1943, $6.50; June 21, 1943, $10; June 24, 1943, $5.33; July 8, 1943, $27.45; July 17, 1943, $6.15; July 29, 1943, $5.00 and November 29, 1943, $10.

In support of this testimony plaintiff offered in evidence original receipts issued by it on printed forms and covering all of the above items except the May 31st one representing the closing out of defendant’s account; and also a photostatic copy of a check for $10 payable to plaintiff, signed by defendant and dated November 29, 1943 (the date of the last of the above listed credits).

The defendant testified that no payments were .made by him on the note at any •time and that the $10 check and the other amounts set up as credits on the note represented cash paid for parts purchased by him or money received by him for checks cashed by him at the office of the plaintiff company.

There is a complete variance and a direct conflict in the testimony of defendant and the principal witness for plaintiff. Since the note was prescribed upon its face and the defendant denied making the payments shown on the back of the note and described in plaintiff’s supplemental petition, the burden rested upon plaintiff to establish these credits by a preponderance of the evidence. The District Court after hearing the testimony, sustained defendant’s plea of prescripttion. Our careful study of the record shows that, while the case is a close one, the District Court had ample foundation for its ruling. Under these circumstances, it is our duty to sustain his decision.

The judgment is affirmed, with costs.


text:
    SOUTHERLAND v. STREETER.
    No. 7341.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.
    Louis Lyons, Bossier City, for appellant.
    J. Bennett Johnston, Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

On September 17, 1946, F. R. Chandler, then owner of Lots 5 and 6 (adjoining) of the Hunter Subdivision in Bossier City, Bossier Parish, Louisiana, sold and conveyed by notarial act Lot 6 to C. B. South-erland, plaintiff herein. In the act of sale was embodied the following stipulation, to-wit:

“It is understood and agreed that the garage apartment which is in the rear of lots five and six is located several feet over the line of lot five on lot six. With this conveyance goes a servitude on this lot for this garage apartment building and is to continue for the duration of the present structure, however at any time the said structure is removed or destroyed this servitude comes to an end.”

Thereafter Chandler sold and conveyed to Mrs. Catherine Turner Streeter said Lot 5.

In his petition herein, plaintiff alleged:

“That Catherine Turner Streeter, a resident of Bossier City, Bossier Parish, Louisiana, is in possession of Lot 5, Block 1 of the Hunter Subdivision and that through her contractors, employees, servants or hired hands she is now beginning to change the garage apartment as mentioned in article two of this petition, into an apartment house, in spite of objections made orally by your petitioner.
“Your petitioner shows that the servitude granted in the deed under which your petitioner claims title was only for the life of the garage apartment that existed at the time the deed was drawn and clearly set out that the servitude was to come to an end.
“That the building of an apartment house and the changing the character of the structure of the building that lies partly on the property of your petitioner is a strict violation of the covenant under which the property was sold and would cause an irreparable injury to your petitioner if the construction as above outlined would be allowed to proceed.
“That in order to protect your petitioner’s ■rights and property in this cause, it is necessary that this court permanently restrain and enjoin defendant from enlarging, altering, or rebuilding garage apartment as above described, or from building anything whatsoever on lot Six of Block One of the Hunter Subdivision of Bossier City, Bossier Parish, Louisiana.”

He prayed for and procured issuance of a rule upon defendant to show cause why a preliminary injunction should not issue herein “prohibiting and enjoining defendant from enlarging, remodeling, making into an apartment house or doing any thing to make the servitude on Lot 6, Block One of the Hunter Subdivision of Bossier Parish, Louisiana, more burdensome to the owner of said lot.”

He prayed for judgment in the following language, to-wit: “restraining and prohibiting her from proceeding with the building and alterations of the garage apartment located partly on Lots Five and Six, Block One of the Hunter Subdivision of Bossier City * * *.”

Defendant excepted to the petition and rule as disclosing neither a cause nor a right of action. These exceptions were sustained and the suit dismissed. Plaintiff appealed devolutively from judgment in keeping with the court’s ruling.

When Chandler sold Lot 6 it was to his obvious interest, as owner of Lot 5, on which was located the greater portion of the garage apartment building, to protect himself and those who should hold under him, his ownership and possession of that portion of the building that rested upon said Lot 6, hence the stipulation in the deed which we have above quoted. This stipulation plainly provides that the servitude therein created should be in effect “for the duration of the * * * structure,” but should cease should same be “removed or destroyed.”

Defendant’s position is that even conceding all of the allegations of the petition-to be true, it is manifest that the building ■will not be “removed o'r destroyed” as a result thereof; and, so long as this is true, plaintiff is without right to complain.

The stipulation whereby the servitude was established does not expressly nor by implication restrict the use of the building to that of garage apartment, which, as we understand, means living and sleeping quarters in the second story and space for parking cars on the ground floor.

It seems clear to us that without incurring forfeiture of the rights that devolved under said stipulation the owner of Lot 5 was invested with the right to make such reasonable interior changes in the building as will promote convenience and insure rental returns. Of course, the building cannot be enlarged or extended so as to encroach upon any part of Lot 6 not covered thereby when the deed . to plaintiff was executed. The petition does not clearly reveal that defendant contemplates such an enlargement. In brief, ‘her counsel states that the only change in the' building she contemplates is, since she has no automobile, to convert the ground floor into living quarters. Such alteration does not destroy the “present structure” within the meaning and intendment of the contract, nor will it make more burdensome the servitude.

It is true that in one part of the petition it is charged that defendant intends to enlarge the structure, but, if true, it is not alleged that the enlargement will fall upon defendant’s own lot. Ambiguities or lack of definiteness in pleadings are construed against the pleader.

Taken as a whole, we agree with the lower court that the petition does not disclose a cause or a right of action against the defendant. Sustaining of the exceptions will not bar plaintiff from renewing his suit, if because of faulty or inartful pleadings the true facts of his complaint have not been herein fully and adequately presented.

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


text:
    GLADNEY v. ZAPPA.
    No. 7343.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.
    Goff & Caskey, Arcadia, for appellant
    Campbell & Campbell, Minden, Meadors, Shaw & Meadors, Homer, for appellee.
   TALIAFERRO, Judge.

This is a jactitation suit wherein the plaintiff asserts ownership and actual physical possession for more than one year of the SWJ4 of NE% and the Sy2 of NW%, of NE}4, Section 35, Township 20 North, Range 7 West, in the Parish of Claiborne, Louisiana, containing sixty acres. He charges that the defendant, John W. Zappa, is slandering his title to the land by claiming ownership thereof and by having prepared, signed by him and registered in the conveyance records of said parish, an affidavit, dated August 30, 1946, wherein he deposed and said that he was the owner of the land under and by virtue of a lease contract and promise to sell, dated January I, 1931, between him and F. A. Gladney, the then owner thereof, which contract is annexed to and recorded with said affidavit.

Plaintiff prays that defendant be ordered to either disclaim title to said property or to assert herein such right or interest as he may claim to have therein; that after due proceedings had, the inscription of said affidavit and contract be canceled; that defendant be condemned to pay plaintiff $250.00 as damages, and for general relief, etc.

By the mentioned contract, F. A. Glad-ney, who died intestate on April 4, 1937, leased the land to Zappa, for the years 1931, 1932 and 1933, for a fixed annual rental and to evidence same the lessee gave his three promissory notes, payable on October 15th, respectively, of said years; and following the lease agreement is incorporated in the contract the following stipulation, to-wit:

“F. A. Gladney agrees that when said notes are paid by J. W. Zappa, and in addition taxes for the three years, to sell to J. W. Zappa the said land for the sum of $600.00, to be paid by three vendor’s lien notes of $200.00 each, to be due October 15th of 1934, 1935 and 1936 respectively, and to bear interest from date at the rate of 8% per annum.”

Defendant excepted to the petition as not disclosing either a cause or a right of action. It is not now urged. He admits having caused to be registered the referred to affidavit and contract, but denies that he is slandering plaintiff’s title to the land, because, as he asserts, plaintiff has none; that he, the defendant, is the owner of the land and is now, and for many years prior, has been in the actual physical possession of the same. He prays that plaintiff’s suit be dismissed and his demand be rejected at his cost. Therefore, it is readily observed that the sole issue tendered by the pleadings has to do with the possession of the land, that is — in what capacity defendant possesses the same. Act No. 241 of 1946.

The case was tried on June 15, 1948, and resulted in a judgment for defendant. Thereafter, upon plaintiff’s application, a new trial was granted, at which additional evidence was introduced and there was then judgment for the plaintiff as by him prayed. The court assigned written reasons for each of the judgments. Defendant appealed to this court.

On August 24, 1937, Mrs. Emma Gladney, surviving widow of F. A. Gladney, was by judgment of the District Court of Claiborne Parish, recognized as such widow and was decreed to own one-half interest in all of the community property of the deceased, her husband, of which there was a large amount of real estate, and to have the usufruct over the other one-half of said property. This one-half interest, in equal proportions, was decreed to belong to the four heirs of the deceased, of whom plaintiff, James K. Gladney, is one. Thereafter, in July, 1945, said widow and heirs effected a partition of said real estate wherein and whereby plaintiff herein was allotted and accepted the lands described in his petition in this suit, and other lands.

In an effort to escape the rigid effect of the law with respect to a lessee being estopped from asserting ownership or possession of property leased to him, to the prejudice of the lessor, so long as that relation subsists between them, defendant, as developed from the testimony, contends that he fully complied with the lease agreement in the fall of 1934 or the early part of 1935, by paying the three rent notes, and that at that time F. A. Gladney told him he would deed him the property if he would in the fall of 1935 deliver to him two bales of cotton; that he delivered the cotton as proposed but that Gladney neglected to execute to him the promised deed. He, therefore, takes the position that after said oral agreement with Gladney and the delivery to him of the two bales of cotton, he, defendant, no longer possessed the land as lessee, but as owner. Testimony in large quantity, not admissible to prove title, was admitted in support of this issue.

While defendant, in the beginning, testified that Gladney agreed to deed him the property if he would deliver to him two bales of cotton in the fall of 1935, thereafter he said that the proposition was for him to deliver to Gladney twelve bales of cotton, two in each year, beginning in 1935.

Defendant owned land adjoining or close to that involved herein. Since, and including the year 1931, when he went into possession of the land under the lease agreement, he has had the possession thereof but has not lived upon it.

Following the death of her husband, Mrs. Emma Gladney took charge of and administered the large estate left by him, with assistance from the plaintiff. She testified positively that defendant made no payment whatever on the third rent note, but did pay the first one which was delivered to him and did reduce the second one to around $32.00. The second and third of said notes were in the possession of Mrs. Gladney when the case was tried, notwithstanding defendant is positive he paid them. They had long since prescribed. He does not satisfactorily explain why he did not get said notes if he paid them, as was done with the one he did pay. It is shown and testified to by him that F. A. Gladney was not only a successful business man, but, in addition, possessed integrity of the highest order and uniformly observed correct methods in his business dealings with others. In view of all of this, it is reasonable to conclude that had the other two notes been paid they would have been delivered to the defendant at the time of payment. On this issue of payment, defendant carried the burden of proof. He failed to discharge it. This is an im-portan! factor in the case, as defendant was entitled to a deed to the property only after paying in full all the notes and the taxes on the property for the years 1931, 1932 and 1933. He admits that he did not pay these taxes. It is also important because a finding contrary to defendant’s testimony, on this question will unfavorably affect his credibility throughout the case.

Defendant testified that in pursuance of the alleged oral proposition made to him by F. A. Gladney, he did that fall and annually thereafter, for six years in all, deliver to him or to Mrs. Gladney, two bales of cotton as credit against the price of the land. In his effort to substantiate this contention he produced and filed twelve gin receipts showing the ginning of that many bales of cotton during the years from 1936 to 1942, inclusive, which covers seven years. Testifying at the first trial, he positively stated that he left these bales of cotton at the compress for the account of F. A. Gladney (who, as said before, died several years before most of the cotton was ginned), together with warehouse receipts and samples of the cotton. However, on the second trial he receded from this positive position and stated that he instructed the ginner to transport the cotton or have it transported to the compress for Mr. Gladney’s account. He offered no testimony whatever to support his own concerning the disposition of the cotton after he instructed that it be put in the warehouse to Mr. Gladney’s account.

Testifying in behalf of plaintiff, Mrs. Gladney is positive that not one bale of the twelve bales of cotton referred to, was delivered to her husband or to her after his death. She, at all times, had intimate knowledge of her husband’.s business affairs and assisted him materially in the conduct thereof.

As to the delivery of the twelve bales of cotton to Mr. Gladney and/or Mrs. Gladney, defendant signally failed to adduce proof adequate to sustain his position. In this instance, also, the burden was clearly upon him and he did not meet it.

It is of material significance that each of the twelve gin receipts remained in defendant’s possession from the time of issuance and each bore the signature “F. A. Gladney” on its reverse side. These receipts were introduced in evidence at the first trial with no explanation concerning the endorsements thereon. Each signature resembled the genuine signature of F. A. Gladney so much that the trial judge, in summarizing the testimony after the first trial, commented thereon. It should be recalled that when eight of these receipts issued Mr. Gladney was dead. On the second trial defendant and his daughter testified that she wrote "F. A. Gladney” on the reverse side of the receipts in order to identify the cotton described thereon as having been delivered on the price of the land.

Mrs. Gladney further testified that after defendant defaulted on his rent note and thereby breached the contract between Mr. Gladney and himself, a new lease (oral) was entered into between the parties, whereby the land was re-leased to defendant for one bale of cotton annually and that he complied with this new contract by delivering to her husband in 1935 and 1936 the bale of cotton stipulated therein; and that after her husband’s death she acquiesced in the new contract with defendant and accepted annually from him one bale of cotton as rental for the place until the year 1941. He did not deliver to her a bale of cotton that fall and when, after a delay of some months, she reminded him of the default, he replied that he did not make any cotton that year. Notwithstanding this default, Mrs. Gladney did not eject defendant from the property. He had had close business dealings with her husband over a period of many years and was considered a good friend of the Gladney family. It is not surprising, in view of these circumstances, that she indulged him as is reflected from this record. And, in addition to this, she knew of his inability to procure farm labor because of the proximity of the ordnance plant to which many farmers, especially Negroes, had gone for employment.

Defendant denies positively that he paid any rent on the land after the year 1935.

Since defendant had defaulted on his rent notes, it is reasonable to assume that he was not financially able to pay for the land on the terms expressed in the original agreement. No doubt this situation of affairs prompted Gladney to re-lease the land to him on terms he could meet, viz. — one bale of cotton each year.

Plaintiff, who is the Parish Agent of Webster Parish, testified that after the act of partition in the fall of 1945, he and a brother-in-law drove to defendant’s home. It was his purpose in making this visit to acquaint defendant with the fact that he was then the owner of the land and to ascertain if he desired to continue to lease it. After the matter was discussed between them, an agreement was reached whereby defendant would continue as lessee and would pay to plaintiff one-fourth of the cotton and corn produced on the place each year, instead of one bale of cotton, as theretofore. The brother-in-law testified that after plaintiff asked defendant if he desired to lease the property, he replied: “All right, if we can get together”. He is certain that defendant did not then assert any claim of ownership to the property. However, defendant did not pay any rent under the agreement with plaintiff and further denies that he leased the land from him.

It is also worthy of note that defendant did not produce a single witness, save members of his own family, to whom he had asserted ownership of the land prior to registry of the instruments alleged to constitute slander of title herein. And, it is also significant that over these many years he did not return the property for assessment, and, of course, never paid any of the taxes due thereon.

The record leaves no doubt in our opinion that the claim of ownership to the property, presently asserted by defendant, is purely an afterthought. It- has no real basis to support it. But, on the other hand there is an abundance of testimony and a legion of circumstances to refute defendant’s claim to the property and to contradict all of the evidence he introduced to support it.

Defendant’s testimony, in many respects, is contradictory and unreasonable. His testimony contradicts the affidavit he signed and had recorded. In the affidavit he declared that he had paid to F. A. Gladney the $600.00 in cash, stipulated in the promise of sale, prior to Gladney’s death, and that Gladney then renewed his promise to execute to him a deed which would have been done but for his untimely death, whereas in his testimony he says that Gladney agreed to accept two bales of cotton per year (but did not say how many years) in lieu of the $600.00 cash.

The fact that plaintiff is illiterate is referred to more than once to account for his inability to tell a story, all of the facts of which would dovetail. It is an easy matter to relate true facts, but difficult to fabricate the same and to present them in such manner as to carry weight.

As a positive act, indicative of ownership, Mrs. Gladney on August 27, 1940, entered into and signed a comprehensive agreement with the Saline Soil Conservation District, designed to improve the land in many respects and to conserve the soil, etc. To some extent this contract was executed but the record does not disclose whether it was finally executed in full. And, on April 20, 1935, subsequent to the date of the alleged oral agreement to sell, alleged upon by defendant, F. A. Gladney leased the land for minerals and subsequently sold one-half of his royalty therein.

A study 'of the record leads us to the same conclusion reached by the lower court after the second trial. Defendant has possessed the land as tenant since 1931 and so long as this relationship subsists he is precluded from asserting in opposition to his lessor, title thereto in himself.

Since the relationship of landlord and tenant between defendant and F. A. Gladney is admitted by all to have once existed, the burden rested upon defendant to satisfactorily prove its termination, particularly in view of the fact that he continuously possessed the leased premises. All presumptions are against him. This is reflected from the following articles of the Civil Code:

No. 3441.
“Those who possess, not for themselves, but in the name of another, as farmers, depositarles and others who acknowledge an owner, can not acquire the legal possession, because, at the commencement of their possession, they had not the intention of possession for themselves but for another.”
No, 3488.
“As to the fact itself of possession, a person is presumed to have possessed as master and owner, unless it appears that the possession began in the name of and for another.”
No. 3489.
“When a person’s possession commenced for another, it is supposed to continue always under the same title, unless there be proof to the contrary.”
No. 3514.
“One can not prescribe against his own title, in this sense, that he can not change by his own act the nature and the origin of his possession.
“Thus, he whose possession is founded on a contract of lease which is adduced, is considered as always possessing by the same title, and can not prescribe by any length of time.”

Practically the same question tendered herein was presented to this court in the case of Federal Land Bank of New Orleans v. Spencer, reported in 160 So. 175, 176. In the opinion in that case many other cases in the jurisprudence of this state were cited to sustain the principle involved and also was cited the case of Rector v. Gibbon, 111 U.S. 276-284, 4 S.Ct. 605-608, 28 L.Ed. 427, in which the court said:

“ ‘The contract of lease implies not only a recognition of his title, but a promise to surrender the possession to him on the termination of the lease. They, therefore, while retaining possession, are estopped to deny his rights.’ ”

See also on the subject: Thomas v. Jackson et al., 158 La. 1019, 105 So. 49; Stinson v. Marston et al., 185 La. 365, 169 So. 436; State ex rel. Winn v. Sinclair Refining Co., La.App., 25 So.2d 543.

The demand for damages was rejected by the lower court. It is not urged here and presumably is abandoned.

Appellant complains that the judgment ordered the cancellation of the registry of the affidavit of the defendant and the lease contract between F. A. Gladney and himself. He argued that in the event of another suit at defendant’s instance, such as specific performance, these instruments, especially the contract, will be material evidence in the case. The judgment takes care of this contingency. The cancellation is not to be made until after the lapse of sixty days from finality of judgment herein and only then should defendant not have within this period instituted a suit in re-vindication.

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

NENNON and HARDY, JJ., sitting.


text:
    TODD v. KIRSPEL.
    No. 7329.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.

      Wilkinson, Lewis & Wilkinson, Edward S. Klein, Shreveport, for appellant.
    Gahagan' & Pierson, Natchitoches, for appellee.
   KENNON, Judge.

Plaintiff’s “Texaco” truck was damaged on September 29, 1947 in a collision near Grand Ecore in Natchitoches Parish, Louisiana. Alleging that the collision resulted from the negligence of the driver of a Grapette Bottling Company truck, owned by defendant, in failing to keep a proper lookout for oncoming traffic while he was following too closely a school bus and attempting to pass this school bus in a curve of the road and on a hill, plaintiff asked for a $284.23 judgment against the defendant.

Defendant" admitted that a collision occurred between the two trucks; denied any negligence on the part of his own driver and pleaded in the alternative, in the event the driver of the Grapette truck should be found guilty of negligence, that the driver of plaintiff’s truck was guilty of contributory negligence in driving at an excessive speed; in failing to keep a proper lookout and to keep his vehicle under control; in failing to keep on his own side of the road and in driving the truck in a reckless manner. In further alternative, defendant pleaded that the driver of plaintiff’s truck had the last clear chance to avoid the accident.

Assuming the position of plaintiff in re-convention and alleging that the accident happened on defendant’s right side of the road and resulted solely from the negligence of plaintiff’s driver as above set out, defendant asked for judgment against plaintiff for damages to the Grapette truck totaling $740.00.

We give below an extract from the written opinion of the District Court, filed October 21, 1948, which gives an accurate description of the accident as reflected by the record: “The physical fact's as described by the witnesses and augmented by the pictures, particularly the picture identified as P-2, gives the Court the following picture of the accident. Grapette truck going North behind school bus at about 15 or 20 miles per hour, and very probably as close as 20 to 30 feet behind school bus. I believe this distance about correct, because its driver swung to his left in order to ascertain whether or not he would have an opportunity to pass. Had he been more than 100 feet behind this bus, particularly on a right hand curve as shown by the pictures, his method of ascertaining whether or not a vehicle was approaching from the North would have been to simply look at the road ahead which curved to the right of the bus. He would have looked to the right of the bus rather than to the left. Now having come out from behind the bus and rather close to it, the Grapette truck gave the impression to the driver of the Texaco truck that he might attempt to pass. I believe this indicates that the Grapette truck crossed the black line for the spontaneous reaction of the driver of the Texaco truck indicated it. Evidently, the drivers of the two trucks saw each other at about the same time for the Grapette truck quickly retired back across the black line and the Texaco truck pulled his right wheels off of the pavement and on to the right shoulder and stepped on his brakes. What happened next is clear— the Texaco truck angled across the paved road and struck the Grapette truck on or beyond the black line. The evidence of this is clearly shown on the picture marked P-2. Now as to why the Texaco truck changed its obvious previous direction and angled off to its left causing damage to all concerned, and precipitating this law suit, is a question the answer to which is the answer to this law suit.”

In the original opinion, from which the above is quoted, the District Judge concluded that the veering to the left of plaintiff’s Texaco truck, after its driver had pulled to the right and applied the brakes, was due to the failure of the braking system on the Texaco truck to function properly and concluded that the demands of plaintiff should be rejected and that there should be judgment in reconvention for the sum of $362.-00.

On rehearing the attention of the District Court was called to testimony in the record that the brakes on the Texaco truck were examined immediately after the accident and found to be in proper condition. The District Judge then concluded that the accident resulted from the action of the driver of the Grapette truck in darting out from behind the school -bus and thus creating an emergency which justified the driver of the approaching Texaco truck in pulling to the right and slamming on his brakes with the resulting skidding of the vehicle into the Grapette truck, which had meanwhile, after seeing the approaching Texaco truck, retired back across the black line.

His judgment, after rehearing, was in favor of the plaintiff as prayed for and the case is now before us on defendant’s appeal from that judgment.

The record supports the findings and conclusion, on rehearing, of the trial Judge. At the point of the impact, the Grapette truck had come over a slight rise and was completing the rounding of a distinct, but not sharp, curve. The driver of the Grap-ette truck was following closely behind the school bus. He admitted that he drove his truck over to the center line for the purpose of looking down the road and determining whether or not the coast was clear for passing. The size of the school bus and the westward curve of the road were such as to prevent the driver of the Grapette truck seeing around the left of the school bus without crossing the center black line.

While the driver of this truck testified that his purpose in driving to the left was simply to lo.ok down the road, the driver of an approaching vehicle can only judge the intentions of drivers of vehicles in the stream of oncoming traffic by what he sees, and the action of the driver of the Grapette truck in pulling from behind the school bus and over into the path of oncoming traffic was sufficient to justify the Texaco driver’s pulling to the right and applying his brakes. Having thus acted reasonably — in an emergency not of his own creation — he is not to be held guilty of negligence simply because later developments were such that he would have been safe had he continued down the road on the assumption that the Grapette truck would get back into its right lane of traffic.

The law applicable was discussed in the case of Hardy, et al. v. National Mutual Casualty Co. et al., La.App., 9 So.2d 346, 348. In that case the defendant motorist attempted to pass a truck and trailer at a time when the Hardy automobile was approaching from the other direction. Miss Hardy, the driver, applied her brakes, her car veered and .skidded to her left side and into the vehicle which had just completed the passing maneuver. In that case the Court stated: “The fact that the Hardy car skidded to the left side of the highway does not disclose negligence on the part of its driver. She was faced with an emergency not of her own creation, the east traffic lane being then blocked; and the application of the machine’s brakes, resulting in the skidding, was the natural procedure of a prudent person.”

We conclude that the action of defendant’s driver in crossing the center line and coming out from behind the school bus was in violation of Rule 7(c) and (d) of Section 3 of Act No. 286 of 1938; that such negligent action was the proximate cause of the accident; that 'the action of the driver of plaintiff’s truck, when confronted with the emergency, in pulling to the right and applying the brakes was the natural procedure of a prudent person.

The record does not show that plaintiff’s truck was traveling at an excessive rate of speed or that the driver was guilty of any of the other acts of negligence set forth in the answer. The facts are such that the pleaded doctrine of last clear chance is not' applicable.

The judgment appealed from is affirmed, with costs.