text:
    ADAMS v. KENNARD.
    No. 3154.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    DeBlieux & Hinton, Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, Baton Rouge, for appellee.
   LE BLANC, Judge.

This is a damage suit arising out of an automobile accident which took place on the extension of Florida Street -in the Parish of East Baton Rouge on January 27th, 1948.

In his petition the plaintiff alleged that he was driving his Plymouth Coupe automobile going west on Florida Street, following a Dodge truck belonging to the defendant, W. B. Kennard, which at the time was being driven by Kennard’s employee, one Clarence Taylor, acting within the course and scope of his employment. The accident occurred when Taylor turned into the driveway of the place of business of Irving and Company, situated on the north side of Florida Street, and the plaintiff ran into the right rear of defendant’s truck. The principal acts of negligence charged against the defendant’s employee is that preparatory to making the right turn he pulled over into the left lane as if preparing to make a left turn, and that immediately thereafter, without giving any signal, he turned to his right and in front of plaintiff’s car. The prayer is for damages in the total sum of $883, the amount of $583 representing damage to the car, the amount of $100 representing depreciation in the car’s value, and the amount of $200 representing the damage caused plaintiff through the loss of his car.

After filing an exception of no cause of action, which was argued and overruled, the defendant answered, denying any negligence on the part of his employee, and, in the alternative, set up the special defense of contributory negligence on the part of the plaintiff.

The facts, as disclosed by the pleadings and testimony show the extension of Florida Street to be a four lane highway which runs east and west, and which is divided by a neutral ground, which, at regularly spaced intervals, has “gaps” or openings through which vehicles may pass in order to change their direction of travel. Previous to the accident the defendant’s employee, Taylor, was proceeding in an easterly direction out from Baton Rouge on Florida Street, and, upon reaching the intersection of Florida Street and Foster Drive, made a U-turn, and then proceeded westward in the right lane of travel toward Baton Rouge in order that he might reach the place of business of Irving and 'Company where he was supposed to pick up some articles. Irving and 'Company, as stated before, is on the north side of Florida Street, and is adjacent to the Miller Buic'k Company which is situated at some distance west of the intersection of Foster Drive and Florida Street.

After trial in the court below, the district judge stated in a written opinion that, admitting for the sake of his decision that the defendant was negligent, he was satisfied that plaintiff was guilty of contributory negligence which barred his right to recover. Accordingly, plaintiff’s suit was dismissed and judgment rendered in favor of the defendant. From that judgment, the plaintiff prosecutes this appeal.

In spite of some conflicts in the testimony, there are some points on which there seems to be agreement, especially with regard to the speed of the respective vehicles at the moment of the accident. After the defendant’s employee had completed his U-turn, the plaintiff followed him at a distance of some 40 or SO feet. Until reaching the Miller Buick Company’s place of business, both vehicles were going at a rate of approximately 35 miles an hour. The truck then slowed down to 10 or IS miles an hour, while the plaintiff admits that he reduced his speed only about S miles and was actually traveling at about 30 miles an hou'r when he ran into the truck.

The most seriously disputed point, and the one upon 'which plaintiff seems to rely most, is whether or not the movement of the truck in front of him was such as to lead him to believe that the truck was going to turn left into one of the openings of the neutral ground, thus permitting him to continue in his right lane of travel. In this connection the plaintiff testified that the tru'ck pulled over completely into the left traffic lane. Further, he testified that though he did not at that time see the opening in the neutral ground, that he knew it was there, and assumed the truck driver, Taylor, intended to turn into it. Taylor, on the other hand, and his companion who was seated in the cab with him, both admit that a slight turn to the left was made, but the testimony of both is that he never did more than to carry the left wheels of the truck over the black center line of the highway. In this connection, the plaintiff himself admitted that the opening in the neutral ground was some 30 feet east of the driveway entrance to Irving and Company, and it seems Unreasonable that the truck driver would make such a long left hand turn as the plaintiff seems to contend. On the other hand, however, it does seem entirely reasonable that the driver of the truck, which is described as being some 22 'feet long, would veer slightly to the left preparatory to turning right into the Irving and ‘Company driveway. There is violent disagreement as to whether any hand signals were given by the truck driver. From the view we take of the case, however, even assuming that no signals were given, we do not believe that such negligence can be said to have been the proximate cause of the accident.

The testimony shows that during the time that it took the tru’ck to slow its speed to make the slight maneuver to the left and the turn to the right into the Irving and ’Company driveway, the driver of the automobile had some 40 or 50 feet in which to observe what was going on in front of him. This is admitted by the plaintiff himself. Instead of taking the precaution of slowing down, or of turning to the left to go around the rear of the truck after it had made its turn to the right, plaintiff chose to go straight ahead and to ram the right rear end of the truck with such force as to cause the truck to turn around and to be facing the east after the accident was over. Moreover, it is important to note that the plaintiff admits that he did not blow his horn or give any signal to the truck driver that he was following him. While this perhaps could not be said to have been the proximate cause of the accident, the fact that the plaintiff failed to take into consideration the movement of the truck ahead of him without reducing his speed any more than he did, and the further fact that the truck was already two-thirds of its length into the driveway, shows such heedlessness' and contributory negligence as to bar recovery.

The applicable law to su'ch a case is to be found in our State Highway Regulatory Act, Act No. 286 of 1938, § 3, Rule 8, Dart’s Statutes, Sec. 5213, which provides: “The driver.of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and. the traffic upon and condition of the highway.” Here the testimony showed the weather to have been cold and raining, which is sufficient to have required more prudence than usual in su'ch a situation. The testimony shows conclusively that the plaintiff failed entirely to exercise the precautions required of him by law. Certainly there has been no manifest error on the part of the trial judge, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: LE BLANC, Judge.

license: Public Domain

text:
    STRICKLAND v. GLOBE INDEMNITY CO. et al.
    No. 3141.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Ponder & Ponder, Amite, for appellant.
    Taylor, Porter, Brooks & Fuller, Baton Rouge, Porteous & Johnson, New Orleans, Carroll Buck, Amite, for appellee.
   LE BLANC, Judge.

On April 12, 1948, Ruthie Mae Strickland sustained injuries from which she died, in an accident which occurred on Highway No. 51, in the Parish of Tangi-pahoa, Louisiana. She was a paid passenger on a bus of the Teche Greyhound Lines and had been discharged from the bus on the east side of the highway as the bus was traveling in a northerly direction. She walked from the entrance to the bus at its right front hand side to the rear, passed behind it and had started to cross the paved portion of the highway when she was run into by a large motor transport which was going south.

Alleging that the deceased was his wife and the mother of his four minor children,, Ella Lee Strickland, Willie Leon Strickland, Jr., Freddie Mae Strickland, and Ruth Strickland, Willie Leon Strickland, the plaintiff in this suit, acting for himself individually and as the tutor of his said minor children is demanding damages in the sum of $50,150 claiming the deceased was killed as a result of the negligence of the operator of the bus and in a subsequent petition claiming also that the driver of the motor transport was negligent and his negligence also was the cause of her death. He not only sued the owner and operator of the bus and of the motor transport but also the driver and the public liability insurer of each, namely: Globe Indemnity Company, as insurer of the Teche Greyhound Lines and Markel Service, Inc., insurer of the motor transport company. He alleged that the motor transport company was owned and operated by the Chrysler Motor Corporation and that company was also made a party defendant although it does not appear to have been cited.

Numerous pleadings in the way of exceptions were filed in behalf of all the defendants who were represented by two different groups of attorneys. They were principally exceptions of want of proper parties plaintiff, of no right of action, of no cause of action and of want of proper parties defendant. The only one of these exceptions, apparently, which was tried, was the one of no right of action. At any rate, it was the only one that was passed on by the trial judge. According to the extract from the minute entry of February 17, 1949, it was tried on that day and by agreement of counsel was to be submitted on briefs within ten days.

The exception was based on the ground that the deceased woman, Ruthie Mae Strickland, was not and could not have been the legal wife of the plaintiff, Willie Leon Strickland, for the reason that at the time of the purported marriage between them, he had a legal wife still living and from whom he was not divorced. The exception involved the taking of testimony and we find from the note of evidence that on the date that it was set for hearing, plaintiff through his counsel, objected to any testimony on the ground that the party who is said to have been his first wife did not have a cause of action herself against any of the parties defendant, for the death of his second wife, for the reason that Article 2315 of the Revised Civil Code, in which the survival of action in cases of this kind is provided for, does not accrue in favor of the first wife. The court over-ruled the objection and heard the testimony subject thereto.

The testimony-taken on the exception revealed beyond doubt that when Willie Leon Strickland was married, for the second time, to Ruthie Mae Strickland, he was still married to his former wife, Rubie Mae Davis, from whom he had never been divorced. On the testimony presented to him the district judge ruled that plaintiff had no right of action to maintain a demand either for himself or in favor of the minors because under the provisions of Article 2315 of the Revised Civil Code, the survival of actions in cases of this kind accrues only to a surviving spouse who is lawfully married and to his or her legitimate children.

Several weeks after the testimony had been adduced, and after the court had handed down its ruling, counsel for plaintiff filed a motion to have the case reopened in order to rebut the testimony which had been offered on the trial of the exception. One of the grounds stated in the motion to re-open was that the court permitted testimony to be taken on an exception of no right of action which itself did not state upon what facts the exception was based. This motion to have the case re-opened was duly tried and subsequently overruled. Judgment sustaining the exception and dismissing the plaintiff’s suit was then signed and this appeal was taken.

In this court counsel for plaintiff strenuously contends that the trial judge committed error in refusing to re-open the case and permit him to produce testimony in rebuttal of that on which the exception of no right of action had been sustained. He again urges the point that the exception did not state the facts on which it was based, one of the requirements in an exception involving matters of fact, as is provided for by our Pleading and Practice Act of 1924, Act No. 228 of 1924, which is incorporated in Section 1483 of Dart’s Revised Statutes.

In- reading the provisions of that act, in so far as it relates to the exception here under consideration, we find that it does provide that “in the case of exceptions involving matters of fact,” the exception must be verified “as to such matters of fact in the manner and form here-inabove prescribed for the verification of petitions and answers.” Further it is also provided, with regard to such exceptions, that, “unless same be verified as above provided, they shall be overruled as a matter of course; * * The exception in this case is one which undoubtedly involved matters of fact and it would seem that the facts relied on should have been stated in the exception itself. It is true that the statute does not specifically state that the facts must be alleged, yet it definitely provides that in such exceptions, that is, those involving matters of fact, they must be verified as to such matters of fact. We take that to mean that the facts must be stated and the verification must appear the same as when the facts are alleged in a petition or in an answer.

Assuming that we are correct in this interpretation of the statute however, we are of the opinion that a party seeking to avail himself of the lack of form in an exception in such cases must urge his objection in limine and if he does not and goes to trial, as was done in this case, he will be considered to have waived any objection as to form and cannot be held to urge it after trial or after the case has reached the appellate court. Had the objection been made in proper time, the court would have had to overrule the exception as a matter of course, as provided in the statute, but certainly the defendant would then have been given the opportunity to re-urge it in its proper form.

We referred to the point on which counsel for plaintiff objected to the taking of testimony on the exception in this case, and his objection, as is noted, had nothing to do with the form of the exception itself. He objected purely on a legal proposition as to the capacity of the first wife to enjoy the benefit of survival of the action which may have accrued in her favor. Further it is to be noted that counsel did not express surprise at any of the testimony that was being adduced nor did he ask for a continuance or that the exception be left open for the taking of further testimony. We therefore conclude that the trial judge was correct in his refusal to re-open the case and certainly do not find he made any abuse of the discretion that is given him in matters of this kind.

On the merits of the exception of no right of action, we do not find it necessary to go into any lengthy discussion of the law that is involved on the point that the survival of actions provided under Article 2315 of the Revised Civil Code only accrues in cases of a lawful surviving spouse and his or her legitimate children. Something is said by counsel that with regard to the children especially, they should not be denied the right of survival of the action considering that in cases of putative marriages, the civil effects of the marriage flow to the party who was not in bad faith in going through a marriage ceremony. It is contended that under that reasoning, the children of this mother who was a putative wife survived to her rights. The testimony however, far from showing that she was a putative wife, is all to the effect that she knew that the man she was marrying had a lawful wife from whom he was not divorced and she therefore derived no civil effects from the marriage. Besides, in the case of Vaughan v. Dalton-Lard Lumber Company, 119 La. 61, 62, 43 So. 926, the Supreme Court denied the rights of survival in actions of this kind to the putative wife. Following that, the court later on, in the case of Thompson v. Vestal Lumber & Manufacturing Company, 208 La. 83, 22 So.2d 842, held that whilst the illegitimate children of a deceased employee had a right of action for workmen’s compensation as being members of the deceased employee’s family, they had no right of action under Article 2315 of the Civil Code.

Under those authorities we are of the opinion that the exception was properly sustained in the lower court and for the reasons stated, the judgment appealed from which dismissed the plaintiff’s suit is affirmed at his costs.


author: REGAN, Judge.

text:
    OHLHAUSEN v. STERNBERG DREDGING CO. et al.
    No. 19114.
    Court of Appeal of Louisiana. Orleans.
    Oct. 17, 1949.
    Jones, Flanders, Waechter & Walker, New Orleans, for appellee.
    John May and John E. Hurley, New Orleans, for appellants.
   REGAN, Judge.

The plaintiff, William H. Ohlhausen, brought this suit unde'r the Louisiana Workmen’s Compensation Act, Act No. 20 of 1914, as amended, against the defendants-, Sternberg Dredging Company,’his employer, and its compensation insurer, the Travelers Insurance Company, in solido, claiming total and permanent disability.

"Defendants filed exceptions of nó right and nó "cáuse of action and exceptions to the jurisdiction. ' By consent of counsel for both parties these exceptions were referred to the merits. The defendants, specifically reiterating the exceptions, then answered denying that plaintiff wás" entitled to‘ any" compensation whatsoever.

Following a trial on the merits, the judge of the lower court, without specifically ruling on the exceptions, apparently overruled them by rendering judgment, in favor of plaintiff as prayed for. The defendants have appealed.

Defendants, on appeal, have abandoned the exceptions to the jurisdiction , and, in support of their exceptions of no- right and no cause of action, contend that the Louisiana Compensation Act is not applicable because the. injury - did not occur m Louisiana and,, because the contract of . employment was not executed in Louisiana, and maintain that no recovery can be had under the "VVorkmen’s Compensation Act, if ■ neither the harm occurred nor-the contract of .employment was made-or to-be primarily performed in this State.

The record reflects that in 1931, while living in Houston, Texas, plaintiff. ascertained that the Sternberg Dredging Company was building a new dredge in Nash= ville, Tennessee. ' He proceeded to Nashville, where for a short time he worked, for the Nashville Bridge Company, which company constructed the dredge “Duplex” and, on August 10, 1931, was transferred to the payroll of the Sternberg Dredging Company.

A close examination of the evidence contained in the record indicates that plaintiff performed his work as leverman on the “Duplex” in many places. Upon the completion of the “Duplex” in Nashville, Tennessee, the dredge proceeded to Houston, Texas, in contemplation of work to be done in the Houston Ship Channel. The dredge remained in Houston for approximately one year. It then went to Galveston, Texas, where work was done in the Galveston Harbor during the latter part of 1932 or early part of 1933. The record is silent as to how long the dredge remained on this job or as to where it proceeded after completing it. The record does show that plaintiff was married in Houston, Texas, on March 12, 1935. The record further reflects that the “Duplex” next appeared in Louisiana, although there is no evidence as to when it first came to Louisiana or as to how long it remained in Louisiana. The plaintiff testified that the “Duplex” went from Louisiana to Panama City, Florida in 1936 or 1937, where it was engaged for a period of time in excess of a year. The “Duplex” then returned to Wax Lake, Louisiana, where it was engaged from the latter part of 1937 until November, 1941, when it was moved to Panama City, Florida. At this time plaintiff voluntarily left the employment while the “Duplex” was located in Panama City. After terminating this employment on November 2nd, 1941, he came to Louisiana and worked in this State for the Elmax Construction Company until the latter part of January, 1942, at which time he wrote to Captain Paulk, the Master of the “Duplex” and asked if he could have his old job back. Captain Paulk answered and informed plaintiff that if he came to Jacksonville, Florida, where the “Duplex” was then engaged, he could have his old job back. Plaintiff proceeded to Jacksonville and was there employed by Captain Paulk, on behalf of the Sternberg Dredging Company, as a leverman, the same position he had occupied prior to terminating his employment with that company in November of 1941. In August, 1942, the “Duplex” was moved to Brunswick, Georgia, where it stayed for thirty days and it was then returned to Florida. In October, 1942, the dredge was docked in Florida for repairs and, apparently in consequence thereof, plaintiff, in November or December of 1942, came to Louisiana to help construct another dredge for the defendant. Upon completion of the repairs for which the “Duplex” was docked, plaintiff returned to the dredge and, thereafter it was moved to Panama City, Florida, where it was engaged in dredging work in the intracoastal canal in January or February, 1943. This work was consummated during the months of July or August, 1943,. and the “Duplex” went to Barataría, Louisiana. There is a dispute between plaintiff and Captain Paulk as to how long the “Duplex” was engaged in Louisiana at this time, plaintiff contending that it worked.in Louisiana for about six months, while Captain Paulk testified that it was in Louisiana from September, 1943 to January, 1944. Thereafter the dredge was moved to Luna Landing, Arkansas, arriving there in February, 1944. Thereafter on or about March 1, 1944, plaintiff alleges that he received the injury, which forms the basis of this suit.' The evidence further shows that plaintiff was discharged by Captain Paulk during the latter part of March, 1944.

The record reflects that the “Duplex”, a self-propelled dredge, moved from State to State in completing various contracts for its owner, the Sternberg Dredging Company, and plaintiff, himself, enumerated the States in which he worked while employed on the “Duplex” to be Texas, Louisiana, Alabama, Georgia, Florida and Arkansas, although not in that categorical order.

As set forth hereinabove, defendants, on appeal, rely, in support of their exceptions of no right and no cause of action, solely on the contention that the Louisiana Compensation Act is not applicable because the injury did not occur in Louisiana and the contract of employment was not executed in Louisiana. It is conceded by the plaintiff that the contract of employment was originally confected in Nashville, Tennessee and that plaintiff, after Voluntarily leaving the employment of the Sternberg Dredging Company, was again employed by that Company in Jacksonville, Florida, and that the accident occurred in the State of Arkansas.

Thus the only question posed by virtue of the exceptions of no right and no cause of action is whether the Louisiana Workmen’s Compensation law is applicable to the facts of this case.

Clearly the evidence adduced in the'trial court conclusively indicates that the work performed by plaintiff, under both contracts of employment, was of a transient nature and required his presence in many States.

It is the plaintiff’s contention that the Louisiana Compensation Act is applicable to plaintiff’s injury because, at the time of plaintiff’s employment, it was the intention of the parties that the contract of employment would be governed by the Louisiana Compensation Act and that Louisiana was the only' State having sufficient interest in the result of the litigation to justify the application of the compensation statute.

As paradoxical as it may seem, both plaintiff and defendants principally rely on the following cases in support of their respective adverse contentions. McKane v. New Amsterdam Casualty Company, La.App., 199 So. 175; Hunt v. Magnolia Petroleum Company, La.App., 10 So.2d 109 and Williams v. Travelers Insurance Company of Hartford, Connecticut, La.App., 19 So.2d 586.

The pertinent facts in the McKane case were: The employer, Stein-Hall Manufacturing Company, Inc., was an Illinois corporation domiciled in Chicago. In 1913, McKane was employed, by verbal contract entered into in Chicago, to sell the employer’s products anywhere in the United States. He remained employed in that capacity until 1925, when he was sent to Detroit, Michigan, to manage the branch office and he remained there until 1926, when he resigned to go into business for himself. In -1930, he was again employed by verbal contract in Chicago as a salesman to travel anywhere in the United States-. He worked in that capacity, with Chicago as his headquarters, until 1935. In 1935, the employer opened a branch office in New Orleans and called him off the road to Chicago, and there offered him the position of manager of the New Orleans office. He was told that if, after a year in New Orleans, he wished to do so-, he could remain there permanently. At the end of the year he decided to remain in New Orleans and the employer confirmed him as branch manager and paid the expenses of moving his household effects and family from Illinois to New Orleans. He purchased a home in New Orleans and maintained this City as his residence until his death in 1940. His territory was principally Arkansas, Louisiana and Mississippi, and he had authority to employ and discharge office help. He was required to travel over the territory which was in his jurisdiction. He was paid by check issued in Chicago, and he was required to keep in constant contact with the Chicago office. In 1940, while returning from Arkansas to New Orleans, he wa-s killed in Louisiana.

The employer had secured a policy of compensation insurance with the New Amsterdam Casualty Company, the defendant, providing coverage protecting the company.for injuries sustained bjr its Illinois employees. This policy was issued in Illinois, but, by endorsement, it was made to cover employees working in Louisiana, Michigan and Missouri, and the premium, insofar as McKane was concerned, was fixed at Louisiana rates.

McKane left a widow and an illegitimate child, who had been living with him and his wife. Shortly after his death, one Margaret Colbert filed suit in Illinois claiming compensation under the laws of that State on behalf of the illegitimate child, who was alleged to be her daughter and of whom McKane was alleged to be the father. Shortly thereafter, the employer filed suit in Illinois against the widow of McKane, seeking to fix the compensation due her under Illinois law. In the meantime, Mrs. McKane filed suit in Louisiana for compensation under the Louisiana compensation statute.

Under these circumstances, we held that there was evidenced the mutual intent that McKane’s employment should he controlled by the Louisiana compensation statute. We said [199 So. 182]: “We think, however, that with relation to the applicability of the Workmen’s Compensation Law, 'the better rule’ is that the intention of the parties to the contract should be the determining factor. And, before resolving whether an employment contract is to be governed by the law of the place where it is made or by the law of the place where it is to be performed, the court should examine all of the facts and circumstances of the case with reference to the nature of the work to be done, the place of performance, the domicile of the parties, etc. — all with a view of' discovering the true intent of the parties. If, after investigation, it appears that the parties have indicated, either expressly or tacitly, that their rights and obligations should be governed by the laws of the place of performance, then the court should not hesitate to apply that law to the case.”

In our opinion, the philosophy expressed in the McKane case is sharply analogous to this case and, consequently there can be no recovery when the injury did not occur here, the contract of employment was not executed in this State, and the facts do not support the theory that it was the intention of the employer and employee that the said contract of employment should be governed by the laws of the State of Louisiana.

In Hunt v. Magnolia Petroleum Company, supra, the Court found the facts to be as follows:

“The plaintiff, Sullivan H.,Hunt, a married man,’ residing with his wife at West-* lake, Louisiana, was first employed by the defendant, Magnolia Petroleum ■ Co.-, ■ on August 2, 1937, and worked as an oil-field rough-neck in * *. * the Cameron Meadows district in Louisiana. ■ At- the time of-his first employment he was. examined by Dr. R. G. Holcombe, the defendant company’s examining physician at Lake Charles, Louisiana. He worked intermittently in Louisiana, but on one occasion was sent for a brief period to the Amelia oil-field in Texas, after which he again worked for the defendant in Louisiana.
“On February 16, 1939, as had been the case before when work was slack, he was laid off; but on that occasion, he withdrew ffom a' voluntary annuity and insurance plan carried by the Magnolia Petroleum Co. for its employees-, and cashed' the benefits he was entitled to receive thereunder.
“Within a month from that date he was again contacted by an 1 employee or representative of the defendant company out of its Lake Charles office and was’ advised that there was some work for him at Kermit, Texas. He reported at' once to the Lake Charles office, and was sent, or went himself, to the Iowa field office,; at Iowa, Louisiana, where records of physi-i cál examinations in the Louisiana district were kept, but was unable to secure his record just then. He was instructed however to report to the ‘tool-pusher’ at ■ Kermit, Texas, which he did, but before being put to work, had to submit to another physical examination which he passed. His wife went with him to Kermit, Texas, but they did not move their furniture there. He started to work on March 14, 1939, and worked continuously until May 25, 1939, on which day he sustained a severe accidental injury to his right leg.”

The Court held that the contract between Hunt and his employer was a “Louisiana contract, and that being so, both parties were subject to the provisions of the Louisiana compensation statute.”

In Williams v. Travelers Insurance Company of Hartford, Connecticut, supra, suit was brought by the widow of the decedent for compensation under the Louisiana Workmen’s Compensation Law. Decedent was employed by Southern Pine Inspection Bureau and his .duties required that he work temporarily- at different times in different ..States of' the Union. He was working in Illinois at the time of his death. It was defendant’s contention that the contract of employment was a South Carolina contract, because decedent had accepted the offer of employment over long distance telephone while in that State, and, therefore, plaintiff could not recover compensation in Louisiana. The Court said :[19 So.2d 589] :

“The negotiations between them (decedent and his employer) started with the plaintiff's deceased husband's application for employment when he resided in this State. The Bureau maintained its principal office at New Orleans, in this State, notwithstanding the fact that it was engaged in business in every State east of the Rocky mountains. The application for employment was submitted to the New Orleans office and that is the only place where it ever was considered by Mr. Cahal, the assistant manager of the Bureau. It never was rejected but on the contrary, the deceased was always led to believe that eventually it would be accepted. Both parties understood that the employment would carry no permanent assignment to any particular State, just as it turned out after he actually was employed. It was more or less accidental that the decedent found himself in South Carolina when the ■culmination of all prior negotiations, which had actually never stopped, took place in the- long distance telephone conversation he had with Mr. Cahal. We might well assume that he was the one who placed the call and closed the contract at that time and yet we could not hold that that one minor fact, compared to all that had transpired between them before, had the effect of making it a South Carolina contract. Moreover, Mr. Cahal testified that regardless of where their employees worked, their employment was finally approved in New Orleans and that the approval of that office had to be obtained before any nonresident contracts of employment were confected.
“Under the method by which it carried on its business all employees of the Bureau, such as decedent was, no matter in which State they worked, were paid their salaries and expenses out of the New Orleans office. * * * In his case it is shown that in the short period of his employment covering a bit more than a year, the decedent worked in South Carolina, New York, Mississippi and Illinois. It is shown, however, that what reports he made to his employer had to be made to the New Orleans office. Clearly therefore, in this case, the place of performance cannot be used as a determining factor in applying the law of the place of the contract. Considered as a fact, among the many others referred to, it adds weight to the conviction that the intention of the parties was to have their contract treated as a Louisiana contract, and as such to be governed, in relation to compensation insurance as well as in other matters, by the Louisiana law.”

The Court in the Hunt and Williams cases followed the “intent theory” enunciated in the McKane case, and sought to ascertain all the facts and circumstances with a view of discovering the true intent of the parties and held that in each case the contract between the plaintiff and his employer was a Louisiana contract and that fact being so, both parties were subject to the provisions of the Louisiana Workmen’s Compensation Act. The Court emphasized, in both cases' that all employment relations were confined to Louisiana.

Counsel vigorously maintain .that the plaintiff, in this case, was a resident of Louisiana at the time he resumed his employment with defendant in Florida. We, of course, appreciate the fact that the residence of the parties was taken into consideration in the. three cases relied upon, however; we do not think that this factor is of any relative significance in this case, in view of the fact that we have weighed all of the various factors as tending to show the true intent of the parties. We believe the applicability of the Workmen’s Compensation Act to any- specific case is contingent upon the peculiar facts incident to the case under analysis. Therefore, the place of the contract, the place of employment and the place of the industry of the employer is, in our opinion, of prime importance. In the instant case, the original contract was confected in Nashville, Tennessee, and either resumed or a new contract entered into in the State of Florida, and the injury occurred in the State of Arkansas.

The Sternberg Dredging Company was organized under the laws of Delaware with its principal office in St. Louis, Missouri, and while it had established two branch offices in Louisiana, to wit: New Orleans and Morgan City, the joint stipulation of counsel, submitted on the trial below, states that Captain Paulk -had “full and complete authority and discretion from Stern-berg Dredging Company to employ and discharge employees for Sternberg Dredging Company to work or working on the dredge Duplex; that Sternberg Dredging Company has never required or requested approval by any of its offices, and particularly by the Morgan City or New Orleans branch offices * * * ” and “that, under this authority, Captain Paulk employed Mr. Ohlhausen in 1942, and no approval or clearance for the employment of Mr. Ohlhausen at that time was obtained from any office of Sternberg Dredging Company.” In the McKane, Hunt and Williams cases an additional rationalization is manifested in connection with an old problem. All of these cases, in the final analysis, hold that the Louisiana Workmen’s Compensation Act is applicable and is contingent upon the intent of the parties. Therefore, it is obvious that the courts must and will continue to examine, in detail, all of the factors which previously controlled their ultimate decisions, such as the place where the contract of employment was executed, the place where the employer’s industry was located, the place where the employment was to be performed, the place where the injury occurred and the residence of the parties. Therefore, by invoking the “intent theory”, the courts actually are adding an additional step to the process of rationalization which had, to some degree, previously occurred in the earlier cases, many of which have been cited by both counsel. It will be observed, without any significance in this case, however, that the residence of the parties ignored in earlier cases, is considered and evaluated in these later cases.

In applying the intent theory to the present case, we are of the opinion that it was never the mutual intention, either express or tacit, of the employer and employee that their respective rights and obligations should be governed by the Louisiana compensation act in the event of an injury and that the exceptions of no right and of no cause of action, taken by the defendants, should have been maintained by the court, a qua, consequently and for the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the defendants maintaining their exceptions of no right and of no. cause of- action, and dismissing plaintiff’s suit at his cost.

Reversed.


author: PER CURIAM.

text:
    Succession of MOORE.
    No. 19393.
    Court of Appeal of Louisiana. Orleans.
    Oct. 4, 1949.
    See also 28 So.2d 465.

      Theodore Cotonio and James N. Britting-ham, Jr., New Orleans, for administratrix and appellant.
    Lewis R. Graham,, New Orleans, for opponents and appellees.
   PER CURIAM.

There is before us for consideration a motion to dismiss this appeal. This succession, which involves 'but a small amount, has been pending for some eleven years, and the record has grown to voluminous proportions. Several phases of the matter have been before us.

Pursuant to an order of the lower court; on February 16, 1949, the administratrix filed her final account which showed that the succession owed her for1 certain expenditures, commissions, and attorneys’ fees. The universal legatee filed opposition to the account, and after a hearing thereon the court below expunged certain items from the account, and as. thus amended the account was homologated. The adminis-tratrix appealed suspensively from the judgment of homologation, and this appeal is pending in this court under docket number 19,327.

After the account was filed, but previous to its homologation, upon their petition, decedent’s legatees were recognized and placed into possession of the succession effects. The lower court refused to grant a suspensive appeal from the judgment of possession, and the administratrix sought in this court a writ of mandamus to compel the graiiting to her of the appeal. We denied the application for mandamus (see our docket number 19,256, opinion book 133), and the judgment of possession is now final.

A rule was then brought against the1 ad-ministratrix to show cause why she should not deliver unto the universal legatee certain movable property in the succession. The district court, on July 15, 1949, rendered a judgment making the rule absolute and ordered the delivery of the property, from which judgment the administratrix has taken this suspensive appeal. The universal legatee now moves for its dismissal, contending that the judgment ordering the delivery of the property is merely interlocutory, in that it carries into effect a final judgment, works no irreparable injury, and is, therefore unappealable.

Appellee directs our attention to the case of Durward et al. v. Jewett et al., 46 La.Ann. 706, 15 So. 292, 293, wherein the plaintiffs who claimed that they and others had an interest in certain funds, obtained an injunction commanding defendant trustees to retain possession thereof, and restraining them from disposing’ of the same. The injunction was perpetuated and the trustees were ordered to deposit the funds in the registry of the court, the rights of all parties"-claiming any title or interest therein being reserved. The defendants appealed devolutively. Plaintiffs then suggested that a distribution of the funds should be made, which could not be done without the appointment of an auditor. An auditor was appointed to make a full and final settlement of the amount due each and every person having an interest in the funds, and to make a tableau of distribution. Upon the filing of the auditor’s report, the plaintiffs brought a rule against defendants to show cause why the tableau and report filed should not be homologated and approved. The auditor’s report was homologated and the funds ordered distributed accordingly, from which order the defendants appealed suspensively. A dismissal of the appeal was moved for upon the ground inter alia that the judgment was merely interlocutory and worked no irreparable injury to defendants. The Court, in dismissing the appeal, said: “We have repeatedly held that no appeal will lie from an interlocutory order which carries into effect a judgment which has become final, or from which no suspensive appeal has been taken. * * * ”

There is no similarity between the cited case and the present appeal, because no succession property was involved in the former. We are concerned with a succession, and the distribution of a succession’s property is fully governed by certain pertinent codal articles.

A judgment .recognizing heirs and decreeing that they are entitled to receive the estate from the administrator does not close the succession nor authorize the heirs to obtain possession of .the effects. It is the administrator’s duty, when a judgment of possession is rendered, to file his final account, which he may require to 'be 'homo-logated, so that he may be given proper allowance for all credits to which he is entitled for commissions and disbursements in the administration, before delivering possession to the heirs.

R.C.C. art. 1194 provides: “As soon as the heir (heir) or. his attorney in fact has been thus put into possession of the succession, or of the effects claimed by him, the..curator is bound to render a faithful and exact account of his administration to him, and to pay the balance due,, deducting a commission of two and a. half per'cent, on the amount of the effects of the succession, or of the portion by him administered, according to the inventory, not taking into the estimate the bad debts.”

The controlling provisions of the Code of Practice are as follows:

“Art. 1003. If from the examination of the testimony produced in support of the prayer the judge discovers that the petitioners are entitled to the succession, he shall put them in possession of it, and shall direct the curator or executor to render an account within a reasonable time to be fixed by him.”
“Art. 1007. If, from a scrutiny of the account, the curator or executor shall appear to owe a balance, he shall be sentenced to pay it to the heirs or other claimants, with interest from the day of judgment; if the balance is in his favor, the petitioners shall be adjudged to pay him in the same manner, and he may, until such payment be made, retain the property of the succession which may be in his hands.”

In Succession of Landry, 117 La. 193, 41 So. 490, 492, the Supreme Court said:

“The judgment recognizing the heirs, and decreeing that they were entitled to receive the estate from the executrix, did not close the succession. Even a judgment ordering the heirs to be put in possession must be accompanied by an order directing the succession representative to render an account, which the heirs or creditors may oppose. Code Prac. 'arts. 1003, 1004; Succession of Sterry, 38 La.Ann. 854.
“Pending the homologation of the account, the succession representative has the right to retain the property of the succession to secure the payment of any balance that may he found due him. Code Prac. art. 1007.”

In the early case of Succession of George, 4 La.Ann. 223, the Court held that the administrator may not “require security from the heirs for amounts due to the creditors before delivering possession to them, but he may require the .previous homologation of his accounts, and the allowance of all credits to which he is entitled 'for commissions .and disbursements ■ in the administration, * * * ”.

As the succession representative has the right to retain the succession’s property to secure payment of any balance that may be determined to he due him, it is manifest, in view, of the claim made by the administratrix in the final account that the succession is indebted unto her (which account has not yet been finally homologated -by virtue of the appeal pending before us),' that the administratrix is entitled to prosecute the suspensive appeal from the judgment ordering delivery of the property to the legatees.

The motion to dismiss the appeal from the order directing the administratrix, to turn over the succession property .to the universal legatee is hereby denied.

Motion denied.


author: ELLIS, Judge.

text:
    FERRENTE v. TANTILLA.
    No. 3139.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Reid & Reid, Hammond, for appellant.
    Ponder & Ponder, Amite, for appellee.
   ELLIS, Judge.

This is a suit to have a certain road in the Parish of Tangipahoa declared a public road and for the necessary orders to prohibit the defendant from closing the road and for damages and attorney’s fees.

Plaintiff alleged that the: road is an ancient public road and has been graded by the Police Jury for many years, and is the only means of ingress and egress to his property; that the defendant has dammed ditches along-the road, causing it to overflow and has threatened to fence it. Pie further alleged that he has suffered damages from mental anguish, inconvenience and suffering occasioned by the defendant in the amount of $500, and $200 in attorney’s fees. Plaintiff has asked that the property in question be declared a public road and that a mandatory injunction issue to compel the defendant to remove all dams and other obstructions which impede the natural flow of the water. He further prayed that defendant be enjoined from interfering with plaintiff’s peaceful use of the road and for damages as set out above.

Defendant, in answer to plaintiff’s petition, admitted that he is the owner of the tract of land involved but denied that a public road presently exists across the property, alleging that the “old Kohnke Hill Road” (the road in question) was abandoned over 27 years ago, and that in its place a new “Kohnke Hill Gravel Road” was constructed. He denied that the Police Jury has graded or worked any road through his property but that, on the contrary, plaintiff has been “crossing the land of respondent” with his permission and that he has demanded of plaintiff to cease using “the said right of way”, offering to give to plaintiff without cost a right of way along the west line of his property.

In further answering, respondent pointed out that the “right of way” which has been used by plaintiff cuts his land in two parts, and that should he cultivate his entire property it would necessitate a double line of fences along the sides of the road with continuing expenses of upkeep and inconvenience. Defendant contended that if plaintiff is entitled to a right of way across his lands, it should be on the western boundary where he has offered to donate a right of way; butj in the alternative, should the Court decide that plaintiff is entitled to the present right of way, then, in that event, defendant should be allowed damages in the amount of $200 for the land actually used, and $2500 for damages to his remaining property and for annoyance, inconvenience and expenses occasioned thereby. Defendant prayed that the demand be rejected at plaintiff’s cost or that, should the Court find that plaintiff is entitled to a right of way, that the location should be along the west line of defendant’s property where he has offered and is willing to donate a right of way, and as another alternative, should the Court find that plaintiff is entitled to the present right of way, he should be given damages as set out above.

After trial on the merits, there was judgment in favor of the plaintiff recognizing the road as a public road, and a mandatory injunction issued to compel defendant to remove dams that impede the natural flow of water and enjoining and restraining defendant from interfering with plaintiff’s peaceful use of the public road at defendant’s cost. The demand of damages for both plaintiff and defendant was rejected.

Defendant has appealed suspensively and plaintiff has answered the appeal, claiming damages in the amount of $50 for gravel washed off the road by action of the appellant, $200 for attorney fees, and $500 for damages, annoyances, inconvenience and mental anguish and suffering.

The first question to be decided is whether or not this is a public road at this time, inasmuch as plaintiff founds his action on the proposition that this is a public road. He does not ask for an easement or a servitude of right of way which is owed to an enclosed estate by the enclosing estate.

According to the plat prepared by Mr. C. E. Moore, a registered civil engineer of Tangipahoa Parish and which was introduced in evidence by plaintiff without objection and used by both plaintiff and defendant, the plaintiff owns a tract of land which bounds the defendant’s property on the North. On the south boundary of defendant’s property there is a gravel road which defendant claims was constructed to take the place of the “old Kohnke Hill Road.” This road runs east and west. Beginning at approximately the South line of plaintiff’s property as shown on the map there is a road running in a southeasterly direction through defendant’s property and into the gravel road above mentioned, which is the road in dispute and which is marked “old Kohnke Hill Road.” This road is approximately 700 feet long from plaintiff’s south line to defendant’s south line and 20 feet wide. Plaintiff contends that this has been a public road for many years and that it has not lost its character as such in that it has been used continuously by the public and particularly by the property owners on the north of the defendant, and, further, that the Police Jury has worked the road for a number of years by grading it and cutting the ditches. Defendant contends that this particular road was abandoned 27 years ago by the construction of the new gravel road which runs at almost right angles to the old road. Therefore, the property had reverted to private ownership and was privately owned by the authors in title of defendant. Defendant concedes that the road in question was used as a public road for a number of years. There is no doubt under the jurisprudence of this state that when a public road is abandoned, the abandoned portion reverts to private ownership of the person owning land over which it passes. See Goree v. Midstates Oil Corporation, 205 La. 988, 18 So.2d 591, and Article 482 of the Louisiana Civil Code.

The evidence clearly shows that there was a public road known as the “old Kohn-ke Hill Road” running in a northwest-southeast direction across the property presently owned by the defendant and the plaintiff, extending to the north well beyond plaintiff’s property and to the south crossing the present gravel road and going some distance beyond. The exact length of this old road was not brought out in the evidence or definitely established. Mr. Moore testified that of his own knowledge this road has been used as a public road for over sixty years, and another witness testified that he was seventy years of age and that he worked on this road as a young man. He testified that this work was done in accordance with the law of that time which made it mandatory for all able bodied men to work on the public roads. He further testified, as did Mr. Moore, that while the new Kohnke Hill Gravel Road took the place of the old Kohnke Hill Road in some portions, it did not take the place of the road in question inasmuch as the new road did not run in the same direction as the old one and that for plaintiff and his neighbors to the north to reach the new road or for the public doing business with them to reach them, the old road would have to be used or at least that portion of it which crosses the defendant’s property. There seems little doubt that the old Kohnke Hill Road south of the new gravel road has been fenced off and probably abandoned as it is not needed and that portion of the old road north of plaintiff’s property has also been abandoned.

George Alessi testified that he has been a member of the Police Jury since 1928 with the exception of the years between 1936 and 1940 and that the road was open when he first went on the jury and that he first graded it in 1929, and that, as a member of the Police Jury, he had the road worked by Police Jury employees until they were stopped from grading the road by the defendant. Also, that the road crew had gone on the road at the request of the defendant and worked the ditches as far as the defendant requested them but that they stopped where the defendant told them to. He further testified that the road was worked across the property of defendant .and plaintiff and up to the woods north of plaintiff’s property. He also testified as follows:

“The Court: Q. What the court wants to know is whether that is a public road or not in your opinion? A. The Police Jury has never abandoned that road, only after he insisted on us not going there and the Police Jury did not want to get involved in a court scrape.
“Q. Is it a public road as far as the Police Jury is concerned? A. Yes.”

Bonfante testified that he has been a member of the Tangipahoa Parish Police Jury for eight years and that he did not know of his own knowledge that the road had been graded by the Police Jury or had not been. He does say, however, that he knows of no action of the Police Jury as a body taken to' recognize the road as a public road. He also testified that Mr. Alessi and Mr. Maca-lusa, Police Jury members, handled the roads in this section and that he handtétá the roads on the other end.

There seems no doubt that the Police Jury has graded this road for a period of more than three years since the passage of Act No. 220 of 1914. This is borne out by witnesses both for the defendant and the plaintiff, and although the defendant denied that the road has been worked since he bought it in 1944, he admitted that employees of the Police Jury “pulled a piece of ditch for me” at his request. See Soileau v. Soileau, 206 La. 243, 19 So.2d 124. All of the previous tenants on the property now belonging to the plaintiff testified that the road was used 'by them during their occupancy even though there has been from time to time a two wire gap at the south end of' the road where it leads into the gravel road. From the testimony as a whole, there is no doubt but that the portion of the road in question has been maintained by the Police Jury for a sufficient length of time since the passage of Act No. 220 of 1914 to make it a public road, arid, further, that this has been considered a public road and was a public road before the construction of the new gravel road which was supposed to have taken its place, and that it has not been abandoned. See Frierson v. Police Jury, 160 La. 957, 107 So. 709, and Goree v. Midstates Oil Corporation, 205 La. 988, 18 So.2d 591. Without this road or another leading into the new gravel road, plaintiff'would have no way to get to the.gravel road nor would the public as a whole have qny way to get to plaintiff’s property or the other properties north of the defendant. The fact that there has been the wire gap or gate at the south end of this road placed there by private individuals does not change the character of the road from public to private.

The question now arises as to damages asked for by the plaintiff. In the case of Walker v. Vicksburg, S. & P. R. Co., 52 La.Ann. 2036, 28 So. 324, the Court allowed actual damages for the obstruction of a public street and, also, in the case of Plantiago v. Snell, 11 La.App. 191, 123 So. 192, the Court allowed damages for the obstruction of a recorded right of way. However, in both of these cases the right of way was fenced preventing ingress and egress and severe inconvenience and actual loss was shown. In this case, the obstruction was a gap or gate and the plaintiff continued to use the road and, as far as the record shows, is still doing so. Plaintiff has not sufficiently established the actual damage occasioned by the controversy between him and the defendant to warrant us in allowing damages. In the two cases cited above, attorney fees were not allowed and as it is the general rule that attorney fees shall not be allowed, we do not think that this is a case which falls within the exception to that rule.

It is therefore ordered that the judgment appealed from be affirmed at defendant’s cost.


author: JANVIER, Judge.

text:
    TUNNAGE v. EDDY et al.
    No. 19269.
    Court of Appeal of Louisiana. Orleans.
    Oct. 17, 1949.

      L. L. Burton and Sydney J. Parlongue, New Orleans, for plaintiff and appellant.
    Claude W. Duke, New Orleans, for defendants and appellees.
   JANVIER, Judge.

This is an action by Lawrence C. Tun-nage, the owner of a house in New Orleans, to recover from the owners, Robert S. Eddy, Jr., Robert S. Eddy, III; Fergus Hathorn Eddy and‘Tom G. Eddy, of an adjoining lot and from Lionel F. Favret, the lessee of the lot, for damages sustained by the house, and also for personal injuries and incidental expenses, all of which are alleged to have resulted from the fall of a part of a' wall which was being erected on the dividing line by Fav-ret, the lessee.

The suit, as against the Eddys, the owners of the adjoining property, was dismissed on exceptions of no cause and no right of action, and plaintiff has appealed.

The suit, as against Favret, the lessee, is still pending in the Civil District Court for the Parish of Orleans.

Since the suit against the owners is now before us on the exceptions, we must assume that the allegations of the petition set forth the true facts.

Plaintiff alleges that he is the owner of a piece of improved real estate, identified by the municipal numbers 2717-2719 Lafitte Street, in New Orleans, and that the Eddys, the exceptors, are the owners of the adjoining property; that on November 21, 1947, the exceptors entered into an agreement with Lionel F. Favret under which they leased their property to Favret for twelve months, and that the lease agreement contained a provision under which Favret was granted an option to purchase the property at a stipulated price at the expiration of the lease, and that this lease or agreement was registered in the Conveyance Office for the Parish of Orleans.

Plaintiff further alleges that on January 24, 1947, he received a letter from Favret, referring to the property of ex-ceptors, which property was under lease to Favret, as his property and in which he stated that he desired to erect a masonry wall, the exterior face of which would be on the mutual property line, and that in order to do so, it was necessary to extend the subsurface concrete footing ten inches beyond the property line on plaintiff's side. In this letter Favret asked that the plaintiff .give his permission that the ..said footing encroach ten inches on his property.

Plaintiff further alleges that he gave this permission and that the construction of this wall was commenced, and that, in the course of construction, a part-' of the wall collapsed and fell “in the direction and ; upon • petitioner’s: house * * and that as a result .the house and contents were damaged. And in a supplemental petition he alleges that he himself sustained physical injuries, and that he was required to purchase certain medicines for himself and for his wife. He further alleges that one of the causes of the falling of the wall was that the end of the wall, which was being built last, “was not tied to any wall nor support, and not supported by any means whatsoever,” and he also alleges “that the falling of said concrete wall was due entirely to defendants’ disregard of their obligation to petitioner not to use his property in such a manner as not to cause damages to petitioner and his property, and in disregard of defendants’ obligation to keep their building in proper construction and repair so that neither its fall, nor any part of the material composing same may injure the neighbor or damage his property.”

It is the contention of plaintiff that regardless of the cause of the fall of the wall, the owners of the adjacent property are made liable for the results of its collapse by reason of the effect of certain articles of our Civil Code, which ' are found under the heading: “Of Servitudes Imposed by Law”, Book II, Chapter 3, Title IV of the Revised Civil Code, and also as a result of the effect of Articles-23IS and 2322.

Of those articles, the ones on which plaintiff principally relies in his contention that the exceptions should be overruled, are, 666, 667 and 670. Plaintiff maintains that, as a result of these articles, the mere ownership of the adjacent property renders the exceptors liable to the plaintiff, regardless of whether or not they were in any way at fault.

It is the contention of the ex-ceptors that these articles have no application, unless it be shown that there was fault on their part; in other words, that the owner of property is not liable to an adjoining property owner for what may occur on that property and which may cause damage, unless the occurrence can be said to have resulted from the fault of the owner of the property. .

On a first reading of the decision of our Supreme Court in Devoke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816, 820; it may appear that it is a holding that the owner of property, regardless of lack of fault, may be, held liable to an adjacent property owner for damages sustained as a result of what may occur on the proper-erty of the former. The Yazoo & Mississippi Valley Railroad Company was made defendant by numerous owners of property adjacent to a locomotive roundhouse operated by the railroad company in Bossier City, Louisiana. The damages were alleged to have resulted from smoke and odors emanating from the roundhouse. The Supreme Court said that the question of liability was governed by those articles of the Code to which we have referred and which appear under the heading of “Servi-tudes Imposed by Law,” and, after making that statement, added this: “Clearly, therefore, the plaintiffs’ action is not one in tort, but, rather, one that springs from an obligation imposed upon property owners by the operation of law so that all may enjoy the maximum of liberty in the use and enjoyment of their respective properties.”

The Court held that the defendant was liable to the plaintiffs. This mig-ht seem to be a clear holding that a property owner is made liable for whatever may occur on his property, regardless of lack of fault on his part, if the occurrence causes damage to an adjoining property owner. But when we read carefully the facts of that case, together with what was said in another case which was a forerunner thereof, to wit, McGee v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21, we find that, as a matter of fact, the defendant railroad was not the owner of the property on which the cause of the damage originated but was in fact, only the lessee of that property. In truth, then, the decisions in those two cases merely held the lessee liable for damages resulting from its own actions.

There are numerous decisions in our jurisprudence touching upon the effect of those articles, and there is found considerable support for the view that the owner of property is liable, regardless of lack of fault on his part.

• We have great respect for the views of Professor Ferdinand Fairfax Stone, and we have given careful consideration to ‘his article, “Tort Doctrine in Louisiana,” which appears in Tulane Law Review, Vol. XVII, page 159, and also to his article, “The Loesch Case and Article 667,” to be found on page 596, also of Tulane Law Review, Vol. XVII, in which he expresses disapproval of the opinion of this court in Loesch v. R. P. Farnsworth & Co., 12 So.2d 222. And we conclude from these articles that Professor Stone is of the opinion that the owner of property is liable for the results of what may occur on his property, regardless of fault on his part. We take this opportunity to say that we did not hold to the contrary in the Loesch case. As a matter of fact, it was not necessary that we consider the possible liability of the owner of the property, for that suit was against the contractor alone for damage sustained as a result of vibration caused by the driving of piles by the contractor on the property of the owner of the land. The owner was not sued and it was sought to hold the contractor liable under Article 2324, which renders liable him who may assist the owner in doing an unlawful act which 'causes damage. It may be that under the above referred to articles of the Code an owner may be held liable, but in the Loesch case we said that the mere fact that the owner might be held liable did not render the contractor liable under Article 2324, unless the aot which the owner was committing not only made him liable, but was unlawful.

We now cite Professor Stone and the Devoke and McGee cases to show that there is support for the view that mere ownership of the adjoining land may render the owner liable.

On the other hand, there is also support for the view that the owner, regardless of what the pertinent articles may seem to provide, is not liable unless the damage sustained by the adjoining property owner is caused by fault or negligence of the former. For instance, in Muller v. Stone et al., 27 La.Ann. 123, it was held that since the damage was caused by fault of the lessee, the owner of the property was not hable for damage sustained by the adjacent property owners. The Court said: “ * * * The -proprietor of a building leased to a tenant, it has been held, is not liable in damages to third parties resulting from the use to which the tenant may put the leased property unless it be shown that at the time the lease was made he knew the uses and purposes the tenant would apply it to, and that such use from the nature of the business would prove a nuisance. * * ”

Counsel for exceptors points also to Fischer v. Wells Fargo & Co. Express, 143 La. 1081, 79 So. 868, and says that it is clearly a holding that an owner of property is not made liable merely ■ by the fact of ownership.

We are relieved to find that ,we deem it unnecessary to delve further into this vexing question, i.e., whether ownership alone renders the owner liable for such damage as may be sustained as a. result of what occurs on his property, because we find in the petition here allegations which, if true, might make the owners liable because of fault on their part, or, at any rate, might place upon them the obligation of proving themselves free of fault.

It will be noted that the petitioner charges that the damage resulted from the failure of the owner to keep the building in repair and also charges that the wall collapsed because of the way in which it was constructed, and also as a result of the fault of the owner in failing to use the property so as not to cause damage to others. It may be that evidence is available in support of these allegations, and if so, there might be liability in the owners because of fault on their part and this regardless of whether, by Article 667 et seq., they are made liable merely by reason of ownership. When we come to consider what evidence may be available and which party is under the obligation of introducing the evidence, we feel that because of the effect of the doctrine of res ipsa loquitur, the plaintiff, having charged general negligence in the exceptors, the exceptors would be required to explain the occurrence which caused the alleged damage and to show that that occurrence was not chargeable to them. We say this because it is obvious that the allegations bring the matter squarely within the rule announced in, and consistently followed since Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann. Cas.1912A, 976.

We, therefore, conclude that the claim against the exceptors should not have been dismissed on the exceptions, and that the matter should be remanded to the Civil District Court for the Parish of Orleans for the introduction of such evidence as may be available touching upon the question of the ownership of the wall and the fault, if any, which may have caused its collapse. When this evidence is before the court it will be in better position to determine whether the exceptors are liable by reason of fault or whether they are liable regardless of fault.

We do not see that the situation, as between the plaintiff and the exceptors, is in any way .affected by the fact that the lessee, in his letter to the plaintiff, requesting permission to encroach ten inches on plaintiff's property, referred to himself as the owner of the adjoining property.

It is not alleged that the exceptors had anything to do with the writing of that letter. Furthermore, had the plaintiff desired to do so, he could have obtained from the Conveyance Records the true status of the title of the property which adjoined his, and he could have discovered, in the Conveyance Office, that the excep-tors, the Eddys, owned the property and that it was under lease to Favret, the other defendant.

The judgment appealed from is annulled, avoided and reversed; the exceptions of no cause and no right of action are overruled, and the matter is remanded to the Civil District Court for the Parish of Orleans for further proceedings, according to law and not inconsistent with the views herein expressed; exceptors to pay the costs of this appeal, all other costs to await final determination.

Reversed and remanded.


author: KENNON, Justice.

text:
    STUART v. GLEASON & McKENNEY et al.
    No. 7425.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.
    Bethard & Bethard, Coushatta, for plaintiff-appellant.
    Blanchard, Goldstein, Walker & O’Quin, Lloyd L. Hendrick, Shreveport, Deutsch, Kerrigan & Stiles, Breard Snellings, New Orleans, for defendants-appellants.
   KENNON, Justice.

Alleging damages to himself totaling $18,500.00 as a result of injury received while he was a passenger in a 1937 Dodge pick-up truck which was involved in a collision on December 4, 1945, with a large gasoline tank truck, plaintiff filed this suit against the owners of the tank truck and their insurer, to the extent of its public liability coverage. In the alternative, and in the event the tank truck driver was found free of negligence, the petition asked for judgment against the liability insurer of the Dodge truck, to the extent of its policy coverage.

The petition charged the driver of the gasoline truck with negligence in that he was driving at a reckless and unlawful speed; in that he was driving without lights at a time when lights were required and in that he failed to keep a proper lookout for vehicles ahead. In the alternative paragraphs, the petition charged that Mrs. Rambin, driver of the Dodge truck, was negligent in that she drove the truck across the paved Highway 20 without looking and listening for approaching vehicles.

An exception of no cause or right of action was referred to the merits of the case.

The owners of the gasoline truck unit and their insurer answered, denying liability, and setting forth that the driver gave sufficient warning of his approach to the intersection where the collision occurred by the blowing of the horn and switching off and on of the headlights and that the driver noted that the Dodge truck (in which plaintiff was a passenger) came to a stop, thus indicating that it would yield the right-of-way, and that the sole cause of the accident was the action of the driver of this Dodge truck in starting forward and attempting to cross the highway in the immediate path of the oncoming gasoline truck. In the alternative, and in the event their driver should be held negligent, these defendants pleaded that the plaintiff was . guilty of contributory negligence in failing to maintain a proper lookout and warn the Dodge truck driver of the approaching vehicle.

The liability insurer of the Dodge truck answered, admitting the allegations of plaintiff’s petition which set forth the occurrence of the collision and the negligence of the driver of the gasoline truck, but denied that the driver of the Dodge truck was in any way negligent. In the alternative, and in the event the Dodge truck driver was held negligent, this defendant pleaded that the plaintiff was guilty of contributory negligence in that, being seated on the right hand side of the pick-up truck, he was in a more favorable position to see the approaching truck and should have given warning to the driver in time to protect her from entering the crossing.

The District Court gave judgment against all defendants in which plaintiff was allowed damages totaling $4900.00. From this judgment all defendants and the plaintiff have appealed.

Louisiana State Highway #20 is a paved route leading south from Shreveport, Louisiana and passing through the unincorporated village of Gahagan on the west side of Red River in Red River Parish. U. S. Highway #84 is a graveled road entering State Highway #20 at a “T” intersection at a point opposite a store building (on the east side of Highway 20) in this village. Thus, Highway 84 runs into but does not cross Highway '20 at this point. On December 4, 194S, plaintiff, who was returning from Shreveport, Louisiana, alighted from a southbound bus at approximately 5:20 p. m.; went into the store on the east side of the highway at Gahagan and awaited the arrival of a neighbor, Mr. Rambin, with whom he had arranged to be driven to his home on U. S. Highway #84 some distance west of Gahagan. When his neighbor’s truck arrived, it was driven by Mrs. Rambin, due to her husband’s illness. Plaintiff got into this Dodge pick-up truck which had been parked by its driver, Mrs. Rambin, in a rather wide graveled area which lay between the store building and the eastern edge of Highway 20. When Mrs. Rambin finished some purchases in the store, she returned to the truck and drove same slowly westward until its front wheels were within five or six feet of the eastern edge of the pavement, where she stoppd. Her lights were burning, and after looking northward and southward and observing no approaching vehicles, she proceeded to cross the pavement. The truck had cleared the east half of the pavement, and two feet of the west side, when its right rear body and fender were struck by the right front of a thirty-eight ton gasoline carrying truck unit which was proceeding south on Highway 20 at a speed of forty to fifty miles per hour. The pick-up truck was pushed southward and turned completely around. The gasoline truck continued southward, leaving the highway eastward and stopped in a field some 180 feet from the point of impact. Both occupants of the pick-up truck were severely hurt. The driver of the gasoline truck suffered no injury.

A state highway patrolman who arrived at the scene some thirty minutes after the collision and before either vehicle had been moved, testified that the glass on the highway and other signs indicated that the right rear of the pick-up truck was struck by the right front of the gasoline truck unit when the rear of the truck had proceeded to a point approximately two feet west of the center line of Highway 20. He further testified that the driver of the gasoline truck stated that he did not see the pick-up truck until too late to avoid the collision. This patrolman, basing his opinion on the distance which the gasoline truck traveled after the impact and the type of ground and obstacles in its path, was of the opinion that the truck was going more than forty miles per hour when the crash occurred.

According to the U. S. Weather Bureau certificate in the record, sunset on the date of the accident occurred at 5:08 p. m. and there was a twilight period on that date of twenty-seven minutes. Plaintiff and the driver of the Dodge pick-up testified that this truck’s parking lights were on at the time Mrs. Rambin drove up to the store and that she turned on her regular driving lights when she got into the car for the purpose of crossing Highway 20 and driving to their respective homes on Highway 84. The driver of the gasoline truck testified that it was dark enough, as he approached the intersection, for him to have his clearance lights on but not dark enough to require the driving lights. The driver of the pick-up truck testified that while it wasn’t “exactly black dark,” it was dark enough “to have lights on.” This condition was further described by Mrs. Rambin as “dusky dark.” The accident occurred at a time when twilight was changing into darkness, and the failure of both drivers to timely observe each other is traceable to a considerable degree to this condition of semi-darkness.

It is difficult to reconcile the testimony of plaintiff, the driver of the pick-up truck, and the driver of the gasoline truck unit, who testified that he, upon approaching the intersection, sounded his horn and, upon observing the pick-up truck approach the highway and stop short of entering it, he flicked his lights off and on and then proceeded through the intersection on the assumption that his right-of-way had been recognized by the driver as indicated by her stopping action. Mrs. Rambin, who was twenty years of age and accustomed to driving, testified that she looked carefully up the road in the direction from which the truck came; that she saw no lights, heard no horn and observed no approaching vehicle. Plaintiff, who is an elderly man, lost one eye about 1910 while in the service of the United States Navy, had, prior to the injury, become almost blind in the other eye. He testified that he looked north up the highway and that all he saw were lights in some houses by the side of the road; that he did not see the approaching truck or hear any warning; that his first knowledge of impeding peril was when “the world exploded” as tire pick-up was crossing the west half of the highway.

We conclude, as did the District Court, that the drivers of both vehicles were negligent. Highway 20 was straight for a distance of a mile or more north of the Gahagan intersection. The view of neither driver was obstructed as to the other vehicle, and had either driver exercised the care which the condition of semidarkness and the crossing of the intersection demanded of a prudent driver, the accident would not have occurred. Mrs. Rambin was negligent in proceeding into the intersection at a time when the large trucking unit with its clearance lights— though unnoticed — was nevertheless visible on the highway. The driver of the gasoline truck was negligent in approaching an intersection and an unincorporated village at a rate well over the speed limit designated by § 3, Rule 4(c) of Title II of Act 286 of 1938 for the operation of such vehicles through any town or unincorporated village of the State, and further in failing to see the pick-up truck as it came into his path and crossed more than half the paved portion of the road. Had he seen the truck even a second earlier, he could have slackened speed or turned soon enough to avoid the accident. The correctness of this conclusion is indicated by his testimony in the record: “If I had been a half second later and she had been a half second early, there would have been no collision.”

Under ' the facts and circumstances shown by the record, plaintiff is not chargeable with contributory negligence. He was a guest in the pick-up truck with no right to control the operator’. He had been totally blind in one eye for many years and his vision in the other eye was seriously limited. He had his glasses in Court and the District Judge, when asked to comment on the type of lens, stated substantially that they were the thickest glasses he had ever seen. Mrs. Rambin was an experienced and apparently careful driver, and he, as a guest in contemplation of law, is not liable for her negligence unless the facts and circumstances are such that he saw or should have seen the approaching danger in time to give her warning. The circumstances under which a guest may be held guilty of contributory negligence are set forth in the case of Lorance v. Smith et al., 173 La. 883, 138 So. 871, 877. The rule is too well recognized to require extensive citation, but we quote two sentences from the above cited opinion, the last of which is applicable to the plaintiff here whose defect of eyesight is such as to make him relatively invulnerable as to the charge of failure to observe the approach of the southbound truck: “If it be found in a given case that the guest was aware of the negligence which he should reasonably apprehend might result in his injury, or if by the exercise of due care he should have been aware of such negligence, and if he occupied such a position in the car as would enable him to communicate with the driver, and if sufficient time elapsed after discovering the negligence to enable him to make complaint and he failed to do so, or failed to take any steps whatever, after becoming aware of the negligence, to protect himself, then it may be said that he acquiesced in the negligence of his host and cannot recover. Under this rule, the opportunity of the guest for discovering the negligence, his position in the car, his age, his mental development and physical condition, and his knowledge of what might constitute negligence or a dangerous situation or condition must all be taken into consideration in determining the question of assent or acquiescence.”

Plaintiff’s injuries were serious and •severe. He remained in the hospital for •approximately six weeks, wore a special neck brace, which immobilized his head and neck movements, for approximately six months, and at the time of the trial (three years and two days after the accident), was still suffering considerable pain and discomfort. The award of $4900.00 by the trial court was appropriate in view of the injuries and the attendant medical expenses, suffering and disability as shown by the record.

The judgment is affirmed, with costs.