author: FOURNET, Justice. HAWTHORNE, Justice

text:
    215 La. 151
    STATE ex rel. DORAN v. DORAN et al.
    Nos. 39244-39247.
    Supreme Court of Louisiana.
    March 21, 1949.
    Joe J. Tritico, of Lake Charles, for relator.
    Plauche & Stockwell, of Lake Charles, for respondent.
   FOURNET, Justice.

Mary J. Doran obtained a writ of ha-beas corpus from the Fourteenth Judicial District Court directed to her former husband, Edward J. Doran, Jr., and his mother, Mrs. Edward J. Doran, Sr., ordering them to produce her four-year-old minor son, Edward J. Doran, III, on her petition alleging that although she had the physical custody of the child under an interlocutory judgment of divorce granted by the Superior Court in and for the City and County of San Francisco, California, the respondent Edward J. Doran, Jr., on the pretext of taking the child fishing with her consent, illegally took him from California to Lake Charles, Calcasieu Parish, Louisiana, where he is now being unlawfully detained.

Mrs. Doran, Sr., made no appearance and the respondent Edward J. Doran, Jr., instead of producing the child as directed, excepted to the court’s jurisdiction on the ground that to the best of his knowledge, information, and belief the minor was not on, prior or subsequent to, October 22, 1948, the day the writ was issued, within the jurisdiction of the court.

The court first took the position that this exception was an answer and ordered the case to trial on the merits. However, the judge later permitted the respondent Doran to offer evidence in support of his exception to the jurisdiction although in the meantime he had filed an answer in which he admitted the divorce and that the physical custody of the child had been awarded his former wife. But, invoking the constitutional guarantee (5th Amendment to the constitution of the United States and Section 11 of Article I of the Louisiana Constitution of 1921) that no one can be compelled to give evidence against himself that may subject him to criminal prosecution, he declined to answer the allegations of the petition charging he had taken the child from California to Lake Charles and was there illegally detaining him for the reason that there was pending against him in the Municipal Court of the City and County of San Francisco, California, a charge of having stolen the child in violation of Section 278 of the California Penal Code and he was, at that time, under bond following his arrest in Lake Charles on a warrant forwarded there pursuant to such charge. In this answer the respondent also gave a detailed statement of certain events leading up to the divorce and set out incidents relative to his wife’s conduct which he claimed render her unfit to have the custody of the child.

The only evidence in the record other than the testimony of Mrs. D’Edna Chamberlain, an employee in the juvenile office of Calcasieu Parish who was placed on the stand for the purpose of impeaching Dor-an’s testimony that he had not told her in the courthouse in Lake Charles on September 30, 1948, he had brought the child back and had it with him on that day, is that of the respondent Doran who took the stand for the limited purpose of showing the child was not within the jurisdiction of the court within 3 days prior to the time the suit was filed. After Doran testified he was a resident of Calcasieu Parish, that as one of the respondents in the case he had been served with a copy of the petition on October 23, 1948, and that beginning on October 18 and extending through October 23 the minor child 'was not, to the best of his knowledge, within the jurisdiction of the court, the respondent rested. On cross-examination, Doran was asked whether he had had the child in Calcasieu on or about September 30, 1948, and when he refused to answer he was held in contempt of court and sentenced to serve 10 days in jail.

The judge, after taking the case under advisement, overruled the plea to the jurisdiction and made the rule absolute, ordering the respondent Doran to forthwith surrender the minor child, Edward J. Doran, III, to the petitioner.

The matter is now before us on writs granted the respondent Edward J. Doran, Jr., and presents for our consideration primarily the right of the respondent Doran to proceed as he did, i. e., plead to the jurisdiction of the court instead of following the mandatory procedure outlined in the Code of Practice to be followed, and, secondarily, the court’s right to hold the respondent in contempt under the particular facts of this case.

Clearly on the prima facie case made out in petitioner’s application it' was the duty of the judge to issue a writ of habeas corpus and when this writ was duly-served on the-respondent Doran it then became his mandatory duty to ‘‘obey and return the order without delay to the court,” (Article 805 of the Code of Practice) either by producing the minor, if the child was in his custody or was confined by him, making-on the back of the order of the court, or separately, his answer in writing, (Article 806) declaring positively whether or not he had the minor in his power or custody and by what authority he was detaining him, (Article 807). If the minor was not confined by him and had not been detained by him within three days preceding' the service, or had been transferred to the custody of another, then it was Doran’s duty to “state particularly in his answer to whom, at what time, for what cause, and by what authority, he made the transfer.” Article 808.

The writ of habeas corpus, originating in the common law but guaranteed under the federal and state constitutions, is designed as a speedy and efficient method of affording a judicial inquiry into the legality of the restraint under which a person is held. It is not controlled by the procedure pursued in the ordinary litigation but by the specific procedure outlined in the Code of Practice. The response of the respondent in such a case is not to the petition filed, but to the writ issued by the judge pursuant to such petition. The Code of Practice does not authorize, and we do not think the judge should have sanctioned, the procedure followed by the respondent here. When Doran failed to follow the procedure set out in the Code of Practice, it was well within the province of the judge issuing the writ, and it was his duty, to decline to proceed with ithe hearing until the subject child was either produced in court or a satisfactory explanation given by Doran as to why it could or should not be produced. If the respondent failed to •comply with such an order, then the trial judge should have held him in contempt of court. To hold otherwise would be to allow the beneficient purpose and the wholesome effects of this writ to be dissipated by subtle objections, technical niceties, and legal refinements. We must, therefore, conclude that the trial judge erred in ordering the respondent to forthwith produce the child in court before proper response had been made to the writ, particularly since the evidence adduced fails to disclose .the detention of the child and his whereabouts. 25 Am.Jur. 243, Sections 144 and 145; 84 A.L.R. 812. See, also, In re Knott, 162 Mich. 10, 126 N.W. 1040.

The question of jurisdiction can only arise after the respondent has made proper return and the case of Ahrens et al. v. Clark, Attorney General, 335 U.S. 188, 68 S.Ct. 1443, relied on by Doran is not controlling here.

In order to determine whether the judge had a right to hold the defendant in contempt under the facts as hereinabove stated, we must first examine the law with respect to the right granted the respondent by the constitution to refuse to give testimony that might be used against him in a criminal prosecution.

The immunity from self-incrimination is another principle of the common law that finds expression in the constitutions of the many states, (Section 11 of Article I of the Constitution of Louisiana of 1921), and in the Fifth Amendment to the Federal Constitution. Under this constitutional guarantee a mere witness is as fully protected as is a defendant in a criminal prosecution. And while this principle is to be liberally construed in order to give the fullest effect to the immunity and protection thus accorded a witness, if a person voluntarily takes ithe witness stand, whether as a mere witness or as a party in the case, giving testimony during which he discloses a fact or transaction, he is deemed to waive this immunity and thereby subjects himself to cross-examination with respect thereto. 147 A.L.R. 256; 58 Am.Jur. 78, Sections 94 and 95. However, where the witness voluntarily takes the stand for the purpose of testifying as to one issue only, he cannot, under cross-examination, be made to testify against his will concerning matters that are wholly unrelated to that issue. 58 Am.Jur. 78, Section 95; 147 A.L.R. 266. See, also, Low v. Mitchell, 18 Me. 372; State v. White, 173 Minn. 391, 217 N.W. 343; Youngs v. Youngs, 5 Redf.,N.Y., 505; State v. Hall, 20 Mo.App. 397; Amherst v. Hollis, 9 N.H. 107; Coburn v. Odell, 30 N.H. 540; Lombard v. Mayberry, 24 Neb. 674, 40 N. W. 271, 8 Am. St.Rep. 234; Commonwealth v. Trider, 143 Mass. 180, 9 N.E. 510; State v. Morgan, 151 Wash. 306, 275 P. 717; and Tucker v. United States, 8 Cir., 5 F.2d 818.

In the instant case the respondent Doran took the stand for the limited purpose of showing that the subject child was not within the jurisdiction of the court within three days prior to the time the suit was filed, and he testified accordingly. Consequently, he subjected himself to cross-examination on that issue alone and he did not waive his right to claim the privilege for all purposes. Of necessity, therefore, when he was cross-examined on another phase of 'the case about which he did not testify, he had the right to claim the privilege and we think the judge was without right under these circumstances to compel him to answer and hold him in contempt when he refused.

The line of authorities holding that a witness may not refuse to answer questions tending to incriminate him in a jurisdiction other than the one where the privilege is being invoked are inapplicable here because they turn on the theory that the danger of prosecution in the other jurisdiction is unlikely or remote, whereas in the instant case the danger of prosecution in California for kidnapping is not only impending but an aotual fact. Doran, at the time he was testifying in this proceeding, was out of jail on bond following his arrest under an indictment returned against him in the State of Caifornia for stealing the child. See. the annotations at 59 A.L.R. 895, and 82 A.L.R. 1380.

For the reasons assigned, the ruling of the lower court holding the respondent Edward J. Doran, Jr., in contempt of court and sentencing him to serve ten days in jail and ordering him to forthwith surrender the minor child, Edward J. Doran, III, to the petitioner, Mary J. Doran, is annulled and set aside and the case is remanded to the lower court for further proceedings consistent with the views herein expressed.

O’NIELL, C. J., takes no part.

HAWTHORNE, Justice

(dissenting).

I am of the opinion that no error was committed by the. district judge in his finding the defendant guilty of contempt or in his order to the defendant to produce the child. The constitutional privilege of the writ of habeas corpus is as sacred as the privilege against self-incrimination.

The petition of habeas corpus contains the allegation that the child was wrongfully and illegally taken from the petitioner on September 25, 1948, and that since that date he has been unlawfully denied, and deprived of, his liberty, and was, at the time the petition was sworn to, kept in confinement by Edward J. Doran, Jr., or Mrs. Edward J. Doran, Sr. I concur with the majority opinion that the defendant had to answer this writ “either by producing the minor, if the child was in his custody or was confined by him, * * * declaring positively whether or not he had the minor in his power or custody and by what authority he was detaining him. * * * If the minor was not confined by him. and had not been detained by him within three days preceding the service, or had been transferred to the custody of another, then it was Doran’s duty to ‘state particularly in his answer to whom, at what time, for what cause, and by what authority, he made the transfer.’ ” I,f the law compels him thus to answer, there can be no justification for allowing the privilege on cross-examination, for surely these answers would incriminate him as much as the answer to the question propounded to him: “Now, on or about September the 30th didn’t you have the child here in Calcasieu Parish?” A rule which would permit the defendant to refuse to answer this question would ultimately defeat the purpose for which the writ was issued.

In the instant case I consider that justice requires that the defendant answer the question, and that this is paramount to the defendant’s privilege.

I respectfully dissent.


source: Caselaw Access Project

author: MOISE, Justice.

license: Public Domain

text:
    215 La. 163
    STATE v. COOK et al.
    No. 39259.
    Supreme Court of Louisiana.
    March 21, 1949.

      A. Veazie Pavy and Vincent Moseley, both of Opelousas, for defendants and appellants.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and J. Y. Fonte-not, Dist. Atty.,'of Opelousas, for appellee.
   MOISE, Justice.

Joseph and Matthew Cook were indicted and tried for the murder of A. B. Cou-villion. They are appealing to this Court from judgments of conviction and sentences of death.

The two defendants are brothers, twenty-four and twenty-three years of age. According to their confessions, they had been gambling in the Town of Melville and were walking out of town on the road by the levee when they saw a parked car and decided to hold up the occupants. The deceased was in the car with a woman companion and it was 1 o’clock in the morning. The brothers approached the automobile on opposite sides, levelled their guns on the ■occupants, then got into the back seat of the car, and ordered that the car be driven to the end of an isolated lane. At pistol point, the woman was then commanded to get out of the car, and while deceased was still seated in the car, he was struck on the head with the butts of their pistols, one of the defendants shot and killed him, and thereafter the woman was taken to the edge of the woods and raped by both of the defendants.

A description of both men was given by the woman. Joseph Cook was arrested at his home fully armed with a pistol, shotgun loaded with buckshot, and additional buckshot were beside his bed. Matthew Cook was likewise apprehended. Both men made written confessions in which each blamed the other for the crime.

The indictment returned in the case jointly charged the defendants with the murder of Mr. Couvillion. This indictment was filed September 30, 1948. Counsel were appointed by the court to represent the defendants. They were arraigned on October 15, 1948. Before trial, certain preliminary pleadings were filed by counsel for the defendants, the first being motions for severance, which were fixed, argued and submitted. These motions were denied and a bill reserved. A plea of insanity was then filed on behalf of the defendants, together with a petition for the appointment' of a lunacy commission, to inquire into the mental condition of the accused at the time of the trial and also at the time of the commission of the crime. After taking the plea under advisement, the court overruled the same and the judge’s written reasons form a part of the record. A bill of exception was reserved to his ruling.

This appeal is now before us on five bills of exception.

Bill of Exception No. 1 was taken to the ruling with reference to the absence of Mr. L. Austin Fontenot, one of the three attorneys named to represent the defendants. The other two attorneys for the defendants objected to proceeding with the trial in the absence of Mr. Fontenot, and upon their objection being overruled, a bill was reserved. All of the attorneys were appointed prior to arraignment and in conformity with the provisions of the Code of Criminal 'Procedure, Article 143, which provides:

“Whenever an accused charged with a felony shall make affidavit that 'he is unable to procure or employ counsel learned in the law, the court before whom he shall be tried, or some judge thereof, shall immediately assign to him such counsel; provided, that if the -accused is charged with a capital offense, the court shall assign counsel for his defense of at least five (5) years’ actual experience at the bar.”

In the per curiam to this bill, the trial judge states that one of the attorneys who defended the accused had been engaged in the practice of both criminal and civil law for approximately twenty-five years; that the other had been so practicing, for about ten or more years; that these two attorneys conducted an able defense, and the fact that Mr. Fontenot did not assist made no material difference, it being pointed out that both of the attorneys who actually conducted the defense had actual experience at the bar fo'r more than five years. Therefore, this bill has no. merit.-

Bill No. 2 was. reserved to the court’s ruling on the motions filed by both defendants for a severance. The motions are identical and they allege that the defense of Matthew Cook is antagonistic to the defense of Joseph Cook and .vice versa; that one or the other is innocent and his defense is that the crime was entirely committed by the other and that there should be separate trials because of a confession made by the one accusing the other of having committed the crime. With reference to these motions for severance., there was a stipulation by the State that it had in its possession, and intended to use in the prosecution of the defendants, two written and signed confessions voluntarily given and executed by Joseph and Matthew Cook. That in making 'his written confession, Joseph Cook undertook to state that Matthew Cook fired the bullets into the body of the deceased, but by a confession subsequently given orally, the accused Joseph Cook admitted that he and he alone fired the bullets into the body of the deceased; and likewise, Matthew Cook, by his -subsequent' or second confession, orally given, confirmed the fact that Joseph Cook fired the bullets; that the State would undertake to prove both confessions and would also undertake to prove that aside from the bullet wounds found on the body of the deceased, there were crushing blows to the skull, sufficient in nature and extent to produce death; that these blows were inflicted on the deceased by'the defendants and in the use of the butts or other parts of the pistols carried by them; and that" the State further expected to prove that both defendants were personally present when the homicide was committed, mutually aiding and abetting each other in the actual commission of the crime. It is plain, therefore, that .there was no showing -of how the defense to be offered-by one of the accused might conflict with the defense to be offered by the other. There was no evidence before the court showing that the defenses were antagonistic nor did any conflict or antagonism appear during the trial.

Article 316 of the Code of Criminal Procedure provides:

“Persons jointly indicted shall be jointly tried, unless the district attorney elect to place such persons separately upon trial, or unless the court, upon motion of defendant, -shall, after a hearing contradictorily with the district attorney, order a severance.”

It is true that where defenses are antagonistic and where the confessions of each of the defendants incriminate the other and it is intended to 'use such con: fessions in evidence, a severance should be granted, but the subsequent oral confessions completely take this case out of the general law and fix the blame for the actual firing of the shots upon one of these defendants.

The per curiam of the court states in part that “ * * * the proof ■submitted to the jury during the course of the trial certainly did not show that the defenses were antagonistic. In fact, the evidence showed that both defendants were both present, aiding and mutually abetting in the commission of the crime. This malees them both guilty as principals.

“ ‘Severance is not -a matter of right, but vests in the sound discretion of the trial court, whose ruling will not be interfered with, unless manifestly erroneous and injurious to accused. State v. Leonard, 6 La.Ann. 420; State v. Cazeau, 8 La.Ann. 109; State v. Ducote, 43 La.Ann. 185, 8 So. 439; State v. Taylor, 45 La.Ann. 605, 12 So. 927; State v. Lee, 46 La.Ann. 623, 15 So. 159; State v. Desroche, 47 La.Ann. 651, 17 So. 209; State v. Cately, 52 La.Ann. 574, 26 So. 1004; State v. Adam, 105 La. 737, 30 So. 101; State v. Watkins, 106 La. 380, 31 So. 10; State v. Johnson, 116 La. 856, 41 So. 117; State v. Phenix, 134 La. 329, 64 So. 129; State v. Hill, 160 La. 579, 107 So. 433.’ ”

There is no merit in Bill No. 2.

Bill of exception No. 3 was reserved to the ruling of the court on the admissibility of the confessions of the accused, attorneys for defendants contending that these confessions were not freely and voluntarily made.

“The question of the admissibility of a confession is for the judge, its effect for the jury”, citing State v. Bessa et al., 115 La. 259, 38 So. 985; State v. Collens, 37 La.Ann. 607; and “whether a sufficient basis was laid for the admission of an alleged voluntary confession is a question of fact upon which the ruling of the trial judge will not be disturbed unless clearly against the preponderance of the evidence”, citing State v. Woods, 124 La. 738, 50 So. 671; Marr’s Crim.Juris. of La., 2d Ed. (1923) Sec. 539. When a confession is voluntarily made, the judge has no right to exclude it, even when shown on its face to be false. State v. Bessa et al., supra.

An examination of the. testimony of the witnesses annexed to this bill, to-wit: Joe Arta'll, Deputy Sheriff, Sheriff Clayton Guilbeau, Edward Robin, Chief Deputy Tax Collector, Captain Ben H. Morgan, and Lt. Ben F. Ragusa of the State Police Department, shows conclusively that the confessions were freely and voluntarily made and were not made under the influence of fear, duress, intimidation, threat, promise or inducement. There is no merit in this bill.

Bill of exception No.' 4 was taken to the ruling of the trial court on defendants’ application for the appointment of a lunacy commission to determine the mental condition of the defendants at the “present” time and also at the time of the commission of the offense. These motions set forth alleged hereditary insanity in the family of the accused. The court held that this was not sufficient to create in the court’s mind belief of their insanity.

The per curiam of the court contains the following statement:

“The Court requested Dr. Gerald Berti-not, the Coroner, to examine the defendants in the case at bar. The Coroner 'had the defendants under observation and, after examining them, reported to the Court that, according to his examination, there was no indication of insanity. He stated that he understood from them that there was a history of insanity in the family. The Coroner further stated that they were able to answer all of the questions that he propounded to them.”

The court had jurisdiction and authority to hear and decide the issue of “present” insanity. No showing had been made that defendants were insane. This entire question addresses itself to the sound discretion of the court. State v. Bessar et al., 213 La. 299, 34 So.2d 785. The court refused to appoint a commission to examine their mental condition as to “present” insanity.. The court correctly held that it was without authority to pass upon insanity at the time of the commission of the crime, as this was a matter affecting the guilt or innocence of the accused and; under the provisions of the Code of Criminal Procedure, Article 267, as amended by Act No. 136 of 1932 and Act No; 261 of 1944, was an issue to be decided by the jury. State v. Sample, 203 La. 841, 14 So.2d 678; State v. Eisenhardt, 185 La. 308, 169 So. 417; State v. Messer, 194 La. 238, 193 So. 633. On this point the per curiam states: “ * * * But, there - was a total lack of evidence to prove insanity at the time of the commission of the crime. These are, of course, facts for the jury, * * *. If, however, the defense attorneys had made insanity at the time of. the commission of the crime an issue in the cause and had they, at that time, requestéd the Court to appoint a Commission to inquire into the insanity of thé defendants, the.Court most assuredly would have appointed a Commission in compliance with Article 267 of the Louisiana Code of Criminal Procedure * * *. The Court was of the opinion that the defense attorneys had abandoned this phase of insanity and was surprised to find that they attempted to make this an issue in Bill of Exception No. 4 * * *. Therefore, the allegation in Bill No. 4 wherein it is alleged that the 'Court overruled the motion for the appointment of a Commission at the time the crime was committed, is incorrect and a misstatement of fact,” i "

We find no abuse of the discretion vested in the court, in refusing to appoint a lunacy commission.

The district court refused to sign bill of exception No. 5 for the reasons cited in its per curiam that no objection was made to its charge and no special charges were submitted. No bill was reserved and none signed. In the absence of a formal bill, there is nothing for review. Art. 499, Code of Criminal Procedure; State v. Shropulas, 164 La. 940, 114 So. 844; State v. Snowden, 174 La. 156, 140 So. 9, and State v. Odom, 192 La. 257, 187 So. 659.

The- motion for a new trial merely sets forth that the verdict of the jury herein is contrary to the law and the evidence; or (2) that the bills of exception reserved during the proceedings of the trial show error .committed to the prejudice of the accused. These alleged errors having been covered by the bills of exception, the -motion offers, nothing for review.

The motion in arrest of judgment is based on (1) the failure of the court to order a severance; (2) that movers were not represented by counsel appointed by the court; and (3) that the written charge of the court to the jury was erroneous and not sufficient in law. These alleged errors have likewise been covered in the -discussion of the -bills of exception.

These defendants were represented by competent and able counsel, their confessions were voluntarily made, and all of the rights guaranteed to them by the Constitution and laws of the State were fully protected. The jury found that they were guilty as charged.

The convictions and sentences are affirmed.

O’NIELL, C.J., takes no part.


author: JANVIER, Judge.

text:
    SOUTHERN WALL PAPER & PAINT STORES v. KAUFMANN et al.
    No. 19031.
    Court of Appeal of Louisiana. Orleans.
    April 11, 1949.
    David Gertler, Irvin S. Smith and Sidney de Armas, all of New Orleans, for plaintiff-appellee.
    Baldwin, Haspel & Molony and Robert R. Rainold, all of New Orleans, for defendants-appellants.
   JANVIER, Judge.

Southern Wall Paper & Paint Stores is a commercial partnership engaged in business in New Orleans in the sale of paints, wallpapers and other similar materials and supplies. The partners are Alfred Korns and Seymour J. Laney.

Allard Kaufmann, the defendant, owns a home in one of the residential areas of New Orleans. J. A. Harris is a contractor who, in the summer of 1947, entered into a verbal contract with Kaufmann for the painting of certain parts of the interior of the Kauf-mann residence and the partial painting of the front thereof. This contract was not recorded in the office of the Recorder of Mortgages for the Parish of Orleans and no bond was required of the contractor.

After the completion of the work, the plaintiff partnership, claiming that it had furnished paint and other material which had been delivered to the premises 1519 Calhoun Street and had been used in the work, and that it had not been paid, filed a lien which was recorded in M. O. B. 1683, folio 211, and filed this suit against Kauf-mann, praying for personal judgment for $226.46. By supplemental petition, the plaintiff partnership sought personal soli-dary judgment against Kaufmann and Harris in the sum of $226.46 and prayed for recognition of its lien and privilege on the premises of Kaufmann, No. 1519 Calhoun Street. Plaintiff also prayed for attorney’s fees at ten per cent and legal interest from judicial demand.

Harris made no defense, but Kaufmann filed exceptions of no cause of action and no right of action and, as required by the rules of the First City Court of New Orleans, at the same time filed answer, admitting that certain “improvements” had been made to his residence and that there had been no written contract, but denying all of the other material allegations regarding delivery 'by plaintiff partnership of any materials to his residence or the use of any such materials in the work which was done by Harris.

There was judgment against Kaufmann for $223.17, with legal interest from judicial demand, and with recognition of the lien as prayed for by plaintiff partnership, and there was also judgment against Harris in the sum of $226.46 and also with recognition of the lien- against the Kaufmann residence, as prayed for. Kaufmann appealed from the said judgment. Harris did not.

Kaufmann frankly concedes that the work was done and that some paint dealer must have furnished the paint and supplies, but he asserts that nothing at all was delivered by plaintiff partnership, and he. especially maintains that under no circumstances could there have been used in the work as much paint as is represented in the claim of plaintiff.

The record shows that in the doing of the work Harris employed Mitchell Weathers who seems to have been present at all times while the work was going on. Weathers says that the brand of paint used was sold in New Orleans at the store of plaintiff partnership but that at no time did he ever see any deliveries made to the premise's by the partnership.

Mr. Kaufmann says that although he was not present at all times, while the work was going on he was living in the house and made it a practice to stay around home a little more than usual and that at no time did he' ever see any deliveries made by plaintiff partnership. In fact, the only paint he ever saw which was used was that brought to the house by Harris.

Mrs. Kaufmann says that she was on the premises almost continuously while the work was going on and that at no time did she ever see deliveries made by the plaintiff partnership.

It also appears that several times,- while the work was going on, Harris told Mrs. Kaufmann that he had to go to get paint and, at one time, he asked for money to buy paint and she gave him a check for $10, the proceeds of which were used by him.

Mr. Korns, one of the partners, says that all of the material was delivered at the residence of Mr. Kaufmann, and he produced what he would have us believe are dray receipts signed by Harris, showing that all of the material was delivered at the Kaufmann residence. On cross-examination, he admitted that he could not say of his own knowledge that the deliveries had been made. He stated that the forms used for these receipts were different from those which would have been used had Harris accepted delivery at the store and, he stated that he would produce some of the other ■forms from which it could be seen that there were two types of receipts. He did not produce the other forms. No employee was produced to testify that he had actually made the deliveries.

Mr. and Mrs. Kaufmann state that while the work was going on, Harris asked them if he might postpone the completion of their work while he carried out another contract which would require some ten days or so, and that Mr. Kaufmann consented to this and thát Harris disappeared, apparently to carry out the other contract. Strangely enough, most of the paint and material which forms the basis of this suit was receipted for by Harris during that period.

Kaufmann testified that he - had checked over pamphlets issued by various pairit companies, and that he had carefully measured all surfaces painted in his residence, and that, according to those pamphlets, not more than twenty-three gallons of paint at the most could possibly have been used, and yet the claim includes forty gallons of paint. Mr. Rathbone DeBuys, an architect with many years of experience, testified along the same lines, stating that under no circumstances, in his opinion, could more than twenty-two gallons have been used, and that in making that estimate he had been very liberal.

We have given thought to the question of whether either of the parties should have produced Harris as a witness. Since Harris was made a party defendant with Kaufmann, it would ordinarily appear that it was the duty of Kaufmann to produce him. But it is obvious, from the contention that Kaufmann makes, that Harris would have been a hostile witness, for Harris no doubt would have testified that he used all of the paint in doing the work for Kauf-mann. In view of the fact that it is Kauf-mann’s contention that, though the paint may have been bought by Harris, it was taken by him personally from plaintiff's store and used by him on other jobs, it could hardly be expected that Kaufmann would have produced him as a witness for his testimony would have destroyed that contention. We do not think, therefore, that the failure of Kaufmann to produce Harris could create any presumption against Kaufmann.

We think that the record fails to show that any of the paint or material was delivered at the premises of Mr. Kaufmann. It is true that he frankly concedes that some paint must have been used and his attitude indicates that he is perfectly willing to pay for such paint and material as was used, but we have no way of ascertaining just what would be the cost thereof because, in the statement produced by the plaintiff partnership, it appears that some types of paint are much more expensive than others. p Any decree which we might render in favor of plaintiff would have to be for some definite fixed amount. Under the circumstances, we see nothing to do except to dismiss plaintiff’s suit as of nonsuit and to order the erasure and cancellation of the recorded lien. This will afford plaintiff the opportunity of making another attempt to collect for such paint as it can prove was actually delivered to or used in the work.

The judgment appealed from, insofar as it runs against Allard Kaufmann and insofar as it maintains the lien against the premises No. 1519 Calhoun Street, is annulled, avoided and reversed, and the suit of plaintiff as against Allard Kaufmann is dismissed as of nonsuit, at the cost of plaintiff.

Affirmed in part.

Reversed in part as of nonsuit.


author: LEBLANC, Judge.

text:
    BROCK v. JONES & LAUGHLIN SUPPLY CO. et al.
    No. 3088.
    Court of Appeal of Louisiana. First Circuit.
    April 19, 1949.

      Durrett & Hardin and Breazeale, Saehse & Wilson, all of Baton Rouge, for appellant.
    Hirsch & Greene, of Baton Rouge, for appellees.
   LEBLANC, Judge.

This is a compensátion suit in which the facts, briefly stated, are as follows:

The plaintiff who is a boiler maker by trade, was employed in his capacity as such by Janes and Laughlin Supply Company during the early days of June 1947. He was performing the regular duties of a boiler maker involving work which is as rough and as heavy as that in any trade or occupation. His rate of pay was $2.00 per hour for a 40 hour work' week.

On or about June 10, 1947, he was engaged, with others, on a job of setting up a four-legged upright boiler. He was fastening nuts on two inch bolts to secure the boiler to its foundation, to do which he had to use a 48 inch. Stjllson wrench. In catching hold of the ,nut to secure it and in pulling on it, the wrench slipped on the nut and hit him in the lower part of the left side of his stomach. He felt the pain which was caused by the blow, naturally, and also became sick at the stomach. He did not vomit but, was nauseated and says that he could have easily produced vomiting had he urged it. He then reported the accident to the time-keeper and safety man who filled out a form and gave him a slip to go to the doctor. At his own request, he was sent to Dr. J. R. Godfrey. He is not sure but he thinks he .reported to Dr. Godfrey on June 12, and on the . following day his employment was terminated because the job was finished. Dr. Godfrey examined him and checked him for a hernia but told him that he could not find any. He told him that the pain he had would leave him within two or three weeks, but it never has.

A few days afterwards, he secured employment with the Steel.Construction Company where his work .consisted of building, lifting heavy sheets of tank, prizing, bolting and climbing up the sides of the tank, all, as will be noted, was really heavy and hard manual labor. He apparently worked with satisfaction to this employer, but suffering pain in his side all the time. On August 29, that job was terminated and he immediately sought other employment with the Solvay Process Company, That company required a medical examination and upon, being examined by a doctor, whose name he. did not recall, he was rejected on account of a hernia. Plaintiff belonged to the Local Boiler-maker’s Union and relied on the Union to secure employment for him. Inasmuch as his classification in the Union as. a boiler-maker included welding also, 'he was sent by the local agent on a job in. Morirpe as a welder and from there he came hack to Baton Rouge and was employed again as a welder by Stone & Webster by whom he was still engaged, at the time.of the, trial of this case.

While employed in Monroe, he came to Baton Rouge on a visit and was examined by Dr. Charles.R. Mcyea of that .city, who also found that he. had a hernia. After the doctor who had examined him for employment at the Solvay Process Company reported he had . a. hernia, he went.to see Dr. Godfrey again. That was about September 8th., and at. that examination Dr. Godfrey told, him that he had a small hernia and, according to plaintiff, made this statement in referring to' the examination made by the doctor who , examined him for the Solvay'Process job: “He said from all indications if I had not coughed so loudly and hard, that doctor would never have found it out at Sol-,vay.” ■■

Under this state of facts, plaintiff naturally had reason to believe that he had sustained this hernia while in the course and scope of his employment, either with Jones and Laughlin Supply Company or Steel Construction Company, Inasmuch as Dr. Godfrey, who had examined him after the accident he sustained at Jones and Laughlin Supply Company, told him he could not find a hernia, but under the facts as shown that he had continued to suffer pain after that injury, which was exactly in the region of the groin, and a hernia subsequently developed while he was doing hard manual labor at Steel Construction Company, he concluded to demand compensation from both, claiming that if the accident did not produce the hernia, it caused the beginning of one by a weakening of the muscles and tissues and that the hard labor which he then continued to perfom with Steel Construction Company gradually brought the hernia out and therefore both of the defendants are liable to him for compensation in his present disability.

He brought his suit against both alleging the facts much along the lines stated and both defendants resisted the demand, each claiming that plaintiff did not sustain a hernia while he was in its employ. In other words, the defendant Jones and Laughlin Supply Company contended that under the testimony of Dr. Godfrey, it is clear that plaintiff did not sustain such an injury as produced the hernia and that his hernia was brought on by the heavy work he did for Steel Construction Company. This latter company, on the other hand, contended that Dr.' Godfrey missed finding the hernia which resulted from the accident plaintiff had on June 10, 1947 while working for Jones and Laughlin Supply Company, and that that company is alone liable to him for compensation.

The trial judge in a written opinion concluded that both the accident of June and the heavy .laborious work which plaintiff performed after, had some connection with his present disability and stated that the most fair and equitable decision is to hold them both equally responsible for compensation due him. Upon signing a judgment to that effect, both defendants ? have taken this appeal.

The question presented, which is- one-principally of fact, is rather intricate and after a rather thorough research of all the-authorities and cases at hand, we have-been unable to find any like it. The- trial judge cited the case of White v. Taylor, 5 So.2d, 337, which presents this- difference; that there, there were two- separate and distinct accidents whilst the employee was working for each of the two- defendants and the court held that it took the combination of both accidents to totally disable him at the time he became disabled! on the date of the second , accident. What makes the present case harder, in- our opinion, is that there was but one accident and undoubtedly we have the opinion of a reliable physician, Dr. J. R. Godfrey,, that that accident did not produce the hernia. As a matter of fact, counsel representing the defendant Jones and! Laughlin Supply Company base their entire case on the testimony of this doctor. That being so we think it becomes necessary for us -to carefully analyze what he had to say.

After stating the facts as given- to- him by the plaintiff concerning the accident he had sustained, Dr. Godfrey says that on examination he found a small, very slight bruise about the size of a silver dime, on the pubic bone just to the left of the midline, and plaintiff told him that that is where the blow was struck. He is definitely of the opinion that from the appearance of the area involved, the blow was on the front of the pubic bone. As, according to him, the blow was struck right at that point he seems to be convinced that it did not involve any damage or injury to the inguinal region which lies just above the lateral, or to the side from where the impact of the blow was. He does not remember if the plaintiff gave any history of having had a feeling of nausea, and if he did, he did not make a note of it. Upon examination for a hernia he found the right external inguinal ring to be small and firm and the left, which was on the side the blow was struck, a little larger; but there was no hernia or Ho relaxation present. He states that if he had suspected a hernia he would have instructed the plaintiff to come hack for further examination within the next ten days to two weeks.

Dr. Godfrey recalled, after having been reminded by counsel for Jones and Laugh-lin that plaintiff did return to him for further examination on September 8, after a hernia had been discovered and on that day, on examination, he did find a very small left inguinal hernia, definitely present. He is certain, however in his own mind, that at the first examination, plaintiff had no hernia and that the one he found on September 8, developed subsequently. The doctor stated that the blow which plaintiff sustained could have caused a feeling of nausea but it does not mean that it had produced a hernia.

It seems to us on examining his testimony, that Dr. Godfrey relies a great deal on the fact that the mark to the area on which plaintiff sustained this blow was definitely in the front of the pubic bone and that it did not involve the ■ inguinal area on the left side, which is the' side where the hernia exists. Thinking of the matter as laymen, it is hard for us to understand why a blow from the handle of a forty-eight inch Stillson wrench would be restricted to the small area Dr. God-frey seems to circumscribe. We do not know exactly what the diameter of the end of the handle of such a wrench is but as we visualize it, it must be a pretty large affair and, assuming that it was the end of the handle which struck the plaintiff, it strikes us that the blow must have involved a larger area than a silver dime on the front of the pubic bone, even though that was the only area which showed any objective symptoms of the blow. If the handle struck him lengthwise then it would seem that the area would be that much larger. It is rather significant also that the plaintiff, upon being asked to demonstrate the exact point at which he received the blow pointed to it as being on his left side about two inches to the left of the flap of his pants, and between eight and nine inches below the waistline. All of this tends to weaken Dr. Godfrey’s testimony to some extent, and while on this point we might mention further that the statement which plaintiff attributes to the doctor during the examination he made on September 8, to the effect that the doctor who first found the hernia might not also have detected it if plaintiff had not coughed so hard and loud, is rather significant. Dr. Godfrey admits the possibility of a medical man sometimes missing a hernia on examination and whilst he does not admit having made such a statement to the plaintiff, he does not deny it.

Dr. Thomas Y. Gladney examined the plaintiff also on September 8. He stated to Dr. Gladney that he had injured himself while working in June, 1947. Dr. Gladney found a definite enlargement of the left external inguinal ring with definite bulging of the tissues inside the ring when the patient would increase his intra-ab-dominal pressure by straining or by coughing. The mass could be reduced on relaxation and would recur when pressure was again increased. From this information the doctor’s diagnosis was of an inguinal hernia, of a combination in type, both indirect and direct as to classification. This doctor said that it is possible for. one to possess a potential hernia and to aggravate the condition by continuous heavy work to such an extent that the hernia will become complete. We are particularly interested in this doctor’s testimony about the type of hernia he described as being both direct and indirect as to classification. In other words, as we appreciate it, an indirect hernia is one which may be hard to find because the mass has not yet protruded into the inguinal ring or if it does protrude or could be detected upon straining or coughing, it can be reduced. When it does protrude and the mass can be felt through the ring, it then becomes a.direct or a complete hernia and the doctor’s testimony that this condition of becoming complete can be produced by hard labor on the part of a man who is suffering from a potential or' indirect hernia by doing hard work, is very impressive in this case, especially in view of some of Dr. Godfrey’s own testimony.

At one place in his testimony Dr. God-frey says; “I think that Mr. Brock received a hernia most likely from subsequent strains after his original visit to me. He had developed a hernia. I think He developed it at work, but as far as I could see, he had no one accident that caused it. At subsequent work he might have been forced continually to do heavy lifting or' straining.” He then was asked this pertinent question: “Is it possible for a hernia to start developing from a blow in the inguinal ring even though an immediate examination of that region fails to disclose a hernia?” His answer was: “I think it would be possible. Yes Sir.” Counsel then pressed him with this question: “Then, is it possible' that when you examined Mr. Brock the first time, admitting' that it is possible that he- did not have a hernia, that having received a blow in that area, that work thereafter of a strenuous character would develop into a hernia in that region?” To this Dir. Godfrey answered: “To' re-word the thing, let us say the original blow started 'a small entering wedge and the strenuous labor later on 'aggravated it. It could be possible.” Finally on this point he was asked this question: “If the patient were to tell you that he continually had pain from the time of a trauma which continued, accompanied by a condition of nausea, would you say that the hernia- was recent or that it had its inception at the time of the original trauma?” Here he answered: “If the patient were to be nauseated and were to hurt in that region from the time the blow was struck, you would think that there was a connection between the two.”

All of this indicates that Dr. Godfrey relented to some extent on his rather positive testimony at the beginning that this plaintiff had no hernia when he first examined him in June, 1947, and that the injury he sustained then had no connection with his present condition. The answer quoted last and given to a question which we find to be based on a state of facts shown to exist, is a form of admission on his part that there might be a connection between the injury and the hernia which presently exists. Then when we consider another of his statements in which he “rewords” the thing and says that it could be possible that the original blow started “a small entering wedge and that the stremN ous labor later aggravated it” we say that that strongly favors the plaintiff’s case.

We conclude that there is sufficient evidence to justify the holding of the trial judge to the effect that plaintiff’s present disability is caused by a hernia which resulted from a combination of both the injury ■ he sustained while working for Jones and Laughlin Company and which became aggravated by the hard laborous work he continued to perform while subsequently employed by the Steel Construction Company. If there is any doubt whatever involved in arriving at a solution of the question, that doubt, by the liberal interpretation of the Workmen’s Compensation Act, Act No. 20 of 1914, As Amended, has to be resolved in favor of the injured employee. We are unable to say that the trial judge erred in his appreciation of the testimony and in deciding as he did, to hold both defendants equally responsible to the plaintiff.

For these reasons''the judgment appealed from is affirmed at the costs of the defendants, appellants herein.


author: DORE, Judge.

text:
    PIERCE v. DELTA TANK MFG. CO.
    No. 3084.
    Court of Appeal of Louisiana. First Circuit.
    April 19, 1949.

      Fred G. Benton, Wilson B. Holcombe and George Mathews, all of Baton Rouge, for appellant.
    Ernest A. Carrere, Jr., of New Orleans, for appellee.
   DORE, Judge.

This is a suit by plaintiff against the defendant under the Workmen’s Compensation Law of this State, Act No.' 20 of 1914, as amended, for permanent total disability as a result of injuries received by plaintiff on January 2, 1946, while in the course and scope of his employment. The defendant paid plaintiff compensation at the maximum rate of $20 per week -'from the date of the injury, January 2, 1946, through July 22,- 1946, when- he was discharged by the attending physician and returned to the employment of the defendant. He worked until May -15, 1947,'when his services were terminated due to the reduction of the forces by defendant. Shortly thereafter he instituted this suit, alleging that he- still suffered weakness and pain in his back of' such a nature as to permanently and totally disable him from resuming his former employment or doing work of any reasonable 'character. The defendant, in its answer,- avers that plaintiff had fully recovered from his injuries at the time it stopped paying compensation on July 24, 1946, when plaintiff returned to his former employment and resumed all duties of his former employment. The sole question presented in the case is the duration of-the plaintiff’s disability.

After a trial of the case on this issue, the trial court, on December 4, 1947, rendered judgment in favor of defendant, rejecting plaintiff’s demand, at his costs. In due course, plaintiff filed an application for rehearing, and on April 13, 1938, the application was denied. Thereafter, plaintiff filed a motion to re-open the case for the taking of additional evidence, which motion was granted. After rehearing, ■ the trial court rendered a judgment in favor of plaintiff, setting aside its former judgment and awarding plaintiff' compensation at the rate of $4.99 per week for a period not to exceed 300 weeks,' less the compensation payments made between January 2, 1946, and July 22, 1946, and beginning one week after the last compensation payment was made in July, 1946, with legal interest on each .payment from its due date until paid, and all costs. From this judgment plaintiff ha§ appealed.' Defendant has answered the appeal, praying that the judgment be reversed, and that plaintiff’s suit be dismissed. In the alternative, defendant prays that it be given further, credit against compensation for the number of weeks from July 25, 1946, to May 18, 1947, the period during which plaintiff was in defendant’s employment and for which he was paid his full salary.

Plaintiff was employed as a driver of a truck in which a heavy crane was mounted, the combination of the two weighing approximately twenty tons. His job was to move the crane truck from place to place in accordance with instructions of the crane operator. The crane operator sat in a cab on the crane and operated the crane therefrom. He directed the truck driver where to locate the truck so as to place the crane in a proper position. On the day of the accident and injury, the truck was stationary and plaintiff was sitting on the back of the truck. Without warning, plaintiff was caught by the moving or turning crane between it and the truck, and as a result suffered fractures of the second, third, fourth, fifth, sixth, seventh, eighth, ninth and eleventh ribs on the right side in the posterior axillary region, and the displacement of the left end of the clavicle. He also suffered bruises of the chest and apparently one of the broken ribs .punctured the right lung and caused it to collapse and also caused the lung along with some of the other internal organs, to be displaced, particularly the heart being pushed to the left side. The plaintiff was in a critical condition after the accident and was confined to the hospital from January 2, to February 6, a period of thirty-five days; then was confined to his home for a longer period. On July 22, 1946, he was discharged by defendant’s physician as being able to return to work. He was paid compensation up to July 24, 1946. On July 25, 1946, he returned to his former employment.

According to the medical evidence, regardless of the fact that plaintiff received serious injuries, there is no doubt that excellent results were obtained. There was no bone pathology. The ribs have all healed in almost perfect alignment, and all other parts of plaintiff’s body have been restored to normal, except the dislocation of the end of the left clavicle, which causes the plaintiff no disability. The complaint of plaintiff is that he still suffers pain and discomfort in the upper dorsal region of his back, particularly when he attempts physical exertion of any kind for appreciable periods of -time and for that reason he contends that he is totally and .permanently disabled.

Dr. Voss, of the City of Baton Rouge, had plaintiff under treatment immediately after the accident, that is, January 2, 1946, and continuously to July 16, 1947, inclusive. On July 16, 1946, the last examination of plaintiff, the doctor states that the plaintiff complained “of pain only when he got up in the morning, ordinarily he would have a stiffness and some discomfort in his back, but as the day wore on and his blood got to circulating, he felt better”. He found “no objective symptoms that could account for these pains”. It was his medical opinion that the plaintiff had fully recovered from his injuries and could return to his former work. He discharged the plaintiff as being capable of resuming his former employment. On the witness stand, the doctor reaffirmed his former medical opinion and states that he sees no reasons why plaintiff should not do hard, laborious work.

During the course of his recovery the .plaintiff was sent at the expense of the defendant to Dr. George Battalora, an eminent orthopedics surgeon of New Orleans. He examined the plaintiff on three occasions, first on March 13, 1946; second, on May 3, 1946, and third and last, on July 3, 1946. The doctor made a report on each examination. His first report discloses that plaintiff was complaining of “pain and a straining sensation in the upper lumbar spine. It is worse after walking. He cannot lie on the left side on account of pain at the left sterno-clavicular joint. He notes a pulling sensation here on motion of the shoulder. There is soreness in the lower portion of the chest on each side on arising, but this disappears after use.” The doctor found that the plaintiff was making an excellent recovery from the effects of his injury. He was of the opinion that plaintiff’s back condition could be improved by the wearing of a lumbo-sacral support and recommended postural exercises to tune up the muscles of the abdomen. He thought plaintiff would end up with practically no disability and that he should be able to return to work within a further period of four to six weeks. On the next examination on May 3, 1947, Dr. Battalora’s report shows that plaintiff’s condition was: “He complains of some back .pain referred to the upper lumbar region and to the lumbo-sacral junction. The back feels tired. The pain is aggravated by bending. There was no radiation of the pain. In certain positions of the left arm he notes sharp pains referred to the left sterno-clavicular joint. This pain is of a very short duration. In the morning on arising he notes soreness across the lower portion of his chest anteriorally.” He found that the plaintiff’s weight had increased from 135 pounds to 156 pounds and that his general condition had improved over that noted previously. Spine motions were normal in range. All shoulder motions were normal. No rib disalignment was noted and the expansible power of the chest appeared to be normal. The doctor’s opinion is stated thusly: “This man is making excellent progress to recovery. He still complains of some pain in his back. This is his major difficulty. I would advise him that he be fitted with a lumbo-sacral support. (This is the same advice previously given which evidently had not been followed.) I have given him an order to the Surgical Supply Company for this appliance. I believe this man should be able to return to work in a very short period of time and I would estimate that two weeks should be enough to get him back. He will have to wear his belt for several weeks after returning to work. I do not believe he will have any residual disability.” On his last examination, July 3, 1946, the .plaintiff reported that since his prior examination he had been wearing a wide lumbo-sacral support and he reports relief with the support. The plaintiff complained of occasional pain referred to the low dorsal region and also some pain referred to the left buttocks. The doctor’s report states: “This man’s general condition is excellent. He handles his joints well, and moves about without any apparent discomfort. All motions of the spine were executed in a normal manner without any apparent difficulty. He likewise stated that he had no pains on motions. Reflexes were normal in both lower extremities. Shoulder motions were normal.” Opinion: “It is my opinion that this man has recovered sufficiently from this injury as to return to work. I have advised him to continue wearing his support for four to six weeks. The only positive finding in this case at present is the slight swelling noted about the left sterno-clavicular joint. This is most probably the result of a sub-laxation received at the time of injury. I believe that disability which this man has as a residual is no more than 5% loss of use of the left arm.”

In his testimony, Dr. Battalora reaffirmed his original opinion that on July 3, 1946, plaintiff had recovered from his injuries and that he was able to return to his former work. He was informed of defendant’s contention that plaintiff had returned to defendant’s plant in July, 1947, and had resumed all the duties of his former employment and that in August, 1947, plaintiff, after .passing a pre-employment examination obtained employment with the Permanente Metals Corporation in Baton Rouge, and was asked the question: “Would this testimony, if considered by the Court as credible, have the effect of substantiating your findings?” To which he answered: “Yes it would.” The doctor further testified that he made no finding of fibrositis in the upper region of the back and/or neck. The doctor was positive that the only complaint of pain by the plaintiff was in the low back, or in the injunction of the lumbar and the dorsal spine. No complaints of pain were made in the cervical region or the upper dorsal region, this being the place where plaintiff makes his most serious complaint at this time.

The record discloses that plaintiff was hired as the truck driver of the crane truck. He belonged to a local union. He was classified as an “oiler’b However, the preponderance of the testimony is that his duties were that of crane truck driver, At the time of the accident, according to the testimony of Edgar Mizell, a fellow employee, who was assigned to the same crew of which plaintiff belonged, he, Mizell, was the “oiler” and plaintiff was the driver. Plaintiff at times performed the duties of oiler, and also helped in the moving of tank heads and unloading cars. These services were performed voluntarily. There is no doubt, however, that these tasks were not- any heavier than that of crane truck driver.

When plaintiff, on July 24, 1946, returned to his employment with the defendant company, he was again given the classification of “oiler” and his duties were crane truck driver, and oiler. The additional duty as oiler was assigned to him on account of a reduced force. He testified that he did those duties while suffering pain, and that he tired easily. He is corroborated -by some of his fellow employees who testified that plaintiff complained of pain. Some of his fellow employees, including 'his superintendent, testified that plaintiff never complained of pain or of tiring easily. The fact remains that he did those duties faithfully and satisfactorily until his termination on May 18, 1947, on account of reduction of defendant’s force. On that score, it cannot .be said that a preponderance of the evidence exists in favor of plaintiff. We must look for corroborating circumstances, either in the medical evidence or other testimony.

According to plaintiff, he consulted, after he had returned to his employment with the defendant, Doctors Lewis -Godfrey and Bannerman, of the City of Baton Rouge. He states that he. had hurt his back while working at defendant’s plant; that Dr. Lewis strapped his back -and that Dr. God-frey removed the tape; that both Doctors Godfrey -and Bannerman suggested that he put boards under the mattress of -the bed in which he slept. It is to be noted, how-eyer, that defendant has had no knowledge of the particular accident of which he complained to those doctors. He has failed to call these (doctors as witnesses in this case". We have only his testimony that he was examined by these doctors.

Plaintiff further testified that after his return to work he consulted Dr. Voss, defendant’s attending physician, for treatment of his -back. In that he is corroborated by the testimony of Dr. Voss, who testified that,, according to his records', the plaintiff on November 23, 1946, and December 22, 1946, came to him complaining of pains between his shoulders and in his shoulder and neck. He prescribed for the plaintiff on both occasions.' He states that the medicine he prescribed was for neuritis and sedatives for pain resulting from neuritis.

Plaintiff also testified that he almost daily visited the first aid station for heat treatment to his back. In that, he is corroborated by the testimony of Dr. Voss who admits that plaintiff informed him, on his two visits to the doctor’s office, that he was getting heat treatments at the first aid station. One of his fellow employees testified that he saw plaintiff receiving this treatment.

On January 6, 1947, between the time that plaintiff returned to work and his termination, plaintiff visited Dr. T. Jeff ' McHugh, a well known and eminent physician of the City of Baton Rouge, complaining of tenderness over the upper back and posterior neck, stating that when he is fatigued the pain extends down to the lumbo-sacral region. The doctor, after examination of the plaintiff, came to the conclusion that “It is probable that he did have a considerable injury of his chest and that it is probable' that he had some back injury which was overshadowed by the chest injury and did not 'become symptomatic until he was out of bed. It is probable that he does have some fibrositis of the muscles of the neck and upper back which may permit him to work, but which would cause him to fatigue and ache with less work than a normal back would stand. It is my opinion that he is able to do reasonable work but his endurance is less than before the accident. I would estimate a permanent disability of fifteen to twenty per cent.” Fibrositis, as defined by the doctors who testified in this case, is the deposit of fibrous tissues in the muscles. The doctor states that he attributed the painful condition of which plaintiff complained to fibrositis and made his diagnosis on the history of the injury and plaintiff’s complaint. “We have no means of proving it or disproving it except by taking a biopsy of the muscle to determine the fibrous content, but, of course, with the history of trauma and with the complaint of pain we assume that to exist, although we are dependent upon the individual’s honesty as to whether or not he actually does have pain.” A biopsy was not- taken. The doctor states the plaintiff cooperated with him. The plaintiff did not in any sense appear to be exaggerating his .symptoms; in short, plaintiff appeared • honest. Dr. McHugh was of the opinion that due to the degree of his injury, plaintiff could easily-have some permanent residual disability. , The doctor was of the .opinion that plaintiff may be able to -do ordinary work; although having some discomfort, he could even do some heavy work for short periods, but he was of the opinion that plaintiff would fatigue sooner than a normal individual. He was of the opinion that he would have some aggravation .of his pain.

As previously stated, plaintiff’s services were terminated on May 18, 1947. On June 16, 1947, he filed this suit. Thereafter, he sought employment with the Per-manente Metals Corporation, an industrial company at Baton Rouge. On August 11, .1947, he was given a p-re-empl'oyment examination by' Dr. McVea, a Baton Rouge physician. At that examination, plaintiff told the doctor that he had had no accident and was not suffering from any physical ailments whatever and that he was normal in every respect. The doctor examined his eyes, ears, mouth and lungs; the abdomen, particularly with reference to the existence of a hernia, the heart and lungs; the genito-urinary system; examination ’ for varicose veins, and a general examination for old injuries and disabilities, with particular reference to bade complaints'; the blood pressure was taken. In .short, it ufas a thorough examination. The doctor, as a witness, states that he satisfied himself as to plaintiff’s physical condition, particularly with reference to his back and.his .chest and as to' his condition for employment. He recommended plaintiff for employment. On October 13, 1947, he was-given a termination examination by the same Dr. Mc-Vea. At that examination, he told the doctor of the accident of January 2,-1946, and of having his ribs broken in that accident. He also compláined of pain ■ in the right side of his chest at times on breathing; i-ma certain position. His examination] .was -as thorough as the first examination, supra. The doctor testified that disregarding plaintiff’s complaint, he found plaintiff in a satisfactory physical state for employment; he further found no difference of his back and chest at this examination than he did at the first examination. In other words, he found plaintiff able -to do hard manual labor. Plaintiff had been hired by the Per-manente .-Metals. Corporation as an oiler and had performed his work to the satisfaction of this employer.

■ Mr. Richard Hill, a fellow employee, and Henry McFerguson, plaintiff’s foreman, testified that plaintiff while so employed never complained of any physical ailments and showed no signs of disability. It appears. that .the Permanente .Metals Corporation found out about plaintiff’s pending suit. Plaintiff was examined, for termination, by Dr. McVea on October 13, 1947. At that examination, knowing that he was being terminated, plaintiff made a full disclosure of the accident of January 2, .1946, and .the resulting injuries, and stated that he had pains in his right chest and that his back and hips were stiff ever since -the accident. The plaintiff freely admitted that he did not tell Dr. McVea .the truth because he needed and wanted a job and .therefore he purposely withheld the information. . .

Under these facts, under a well considered written opinion for judgment,, the learned trial judge, in the first instance, came to -the conclusion that the plaintiff was not disabled from resuming his former employment or work of a reasonable character. He correctly states that the test of disability is whether an employee can discharge his duties of:the occupation he held at the time of the injury. The trial judge states: “He has conclusively demonstrated hís ability to do this by working and doing his former job and working for the Permanente Metals ■ Corporation as an oiler without any particular trouble.” In his second well considered written reasons,, after analyzing -the testimony offered on the reopening of the case, the trial judge states: “A summation of the above testimony- indicates that the. plaintiff did have-some pain and discomfort in his back after-returning to work in July of 1946. However, as pointed out in -the original opinion* he did his job successfully for approximately ten months, was laid off in a general lay-off, and thereafter secured other full time employment' which he did sue-' cessfully. Thus, this Court is clearly of the opinion that plaintiff has failed to establish permanent and total disability.” We find him eminently correct in his conclusions.

However, the learned trial judge, being of the opinion that some residuary pain and discomfort existed for an indefinite time, and basing this on the testimony of Dr. McHugh, came to the conclusion that plaintiff was entitled to compensation under Section 8, subsection 1(c), of the Compensation Statute, Act No. 20 of 1914, as amended, Act No. 242 of 1928, p. 357, and granted him compensation at the rate of $4.99, being 20.% of 65% of $38.40 (his weekly wages). In this, we are not in accord. The testimony of Dr. McHugh is based entirely on probability and too indefinite to warrant an award. Furthermore, the testimony of Drs. Voss, Battalora and McVea is far more certain than that of Dr. McHugh, as to the plaintiff being able to do his work.

Furthermore, in this case, the wages earned by plaintiff after the accident for the ten months he was employed by the defendant and for the two months he worked for the Permanente Metals Corporation were more than those previously. It must be borne in mind that he was not discharged by either corporation because he had any residuary pains and discomfort, he having given very satisfactory work.

However, if Subsection 1(c) is applicable, we find that sixty-five per cent, of the difference between the wages at the time of injury and wages which the injured employee is able to earn thereafter during the disability, would result in nothing.

Furthermore, if plaintiff is or has been suffering from pains and discomfort, plaintiff has failed to satisfactorily prove that such pains and discomfort are due or is a residuary of the accident of January 2, 1946. It may as well be the result of the accident for which he privately consulted Drs. Lewis, Bannerman and God-frey. In compensation cases, plaintiff is required to prove his case as in all other suits. He must make his case a legal certainty, to make it probable is not enough. Plaintiff has failed to establish ’by a preponderance of' the evidence that he is totally and permanently disabled from, doing work of a reasonable character or discharging the duties of the occupation he held at the time of injury, or even that he is suffering from any partial compensable disability.

For these reasons assigned, the judgment appealed from is annulled, avoided and reversed and it is now ordered that plaintiff’s suit :be and the same is hereby dismissed at his costs.


author: LeBLANC, Judge. PER CURIAM.

text:
    COTTEN v. BUTLER et al.
    No. 3102.
    Court of Appeal of Louisiana. First Circuit.
    April 19, 1949.
    Rehearing Denied May 19, 1949.

      Albritton, Ware & Litton, of Baton Rouge, for appellant.
    Fred G. Benton, George Mathews and Edward Donald Moseley, all of Baton Rouge, for appellees.
   LeBLANC, Judge.

This is a suit brought by Mrs. Mary Byrne Cotten for damages for the death of her husband, William A. Cotten, which, she alleges, resulted from an accident that occurred on December 21, 1947. The deceased was a man over 76 years of age, who died on March 10, 1948, the certificate of death, signed by his attending physician showing that he died of acute heart trouble, following trauma.

The demand is for the sum of $37,626.42, including medical, funeral and burial expenses. Upon trial in the .lower court, the district judge awarded the plaintiff judgment in the sum of $6,000. Negligence causing the accident is charged against James S. Butler. The Zurich General Accident and Liability Insurance Company, Ltd. had insured Butler’s car against public liability and both were sued, in solido. The judgment was against both and they have both appealed suspensively. Plaintiff has answered the appeal asking for an increase-in the'amount of the judgment to the sum originally demanded.

The facts reveal that the decedent was a man who was active and vigorous for a person of his age, conducting an insurance collection business which necessitated his driving his automobile over a rather large area surrounding the city of Baton Rouge. His home was at Municipal No. 238, North Street, in that city. The house was on the south side of the street, facing north. The defendant Butler had been living at the Cotten home for some six or seven years prior to the accident. He also used an automobile which he kept parked in an open space-between the'garage in the rear of the Cotten home and the garage back of the home immediately to the west. It appears that there was a servitude of passage between the two homes which-was used as a means of exit to the street. According to. the testimony, the place where the defendant Butler kept his car parked was approximately 30 feet from the rear steps of the Cotten home. He always. backed his car out to .the street and in order to do so it. was necessary 'for him to back somewhat at an angle from south to east, some 12 or 15-feet, and then straighten- out so as to back the car straight to North Street through the driveway on the Cotten property.

Butler was accustomed to go to St. Fran-cisville in his car every- Sunday and on the-day of the alleged accident, which was a. Sunday, following his. usual. custom, he-carne out of the house some time in the morning to go to his car and back it out to the street. As he walked to the back porch when he left the house to go to his car, he says that both Mr. and Mrs. Cotten were standing on the porch and that following another custom of his, he paid his weekly rent for his room to Mrs. Cotten, exchanged a few words with them both about some immaterial matter, perhaps the weather, and then went to his automobile. He says that he looked to see if the driveway w-as clear, and as it was, he got in his car, proceeded to start the motor and then to back out. He says that he again looked to his left to see that the driveway was open and then looked through the rear-view mirror as he backed out. He was backing very 'slowly and cautiously and had backed about 15 feet, when, he says, he heard Mr. Cot-ten’s voice uttering the words “Hey There.” The sound of the voice came from the right side of his car so he immediately stopped and got out from that side and walked to the rear to see what had happened.

Up to this point the facts are undisputed with the exception that it is the plaintiff’s contention that Mr. Cotten was not standing near the right rear of the automobile when he was struck but that he was standing near the side of his house, trimming flowers or hedges and that necessarily-he had to be standing near the left rear end of the car when he was struck. To continue with Mr. ’ Butler’s version, however, he states that after he got out of his car and walked to the rear, he saw Mr. Cotten standing near the step of his back porch, leaning on the step, as it were, with one hand on the railing and the other holding his knee or leg. -He asked him-what had happened and Mr. Cotten told him that the bumper of his -car or something had struck his- leg. He - then told Mr. Cotten how sorry he was that- he had done anything like that and offered medical assistance, whereupon Mr. Cotten said that he -did not require any, that he -would be all right after a while. He says that Mr. Cotten told him that it was not his fault. He stayed around waiting to see if Mr. Cotten could- get around and when he saw that he did not require a doctor’s attention and was actually walking, he got in his car and went off.

Mr. Butler’s testimony is the only eye witness proof in the record concerning the way in which the accident happened. Plaintiff in her petition, alleges that at the time,-her husband was standing in -a small flower bed adjacent to the back -porch and back steps of their residence; that the defendant Butler backed his automobile in a negligent and reckless manner, and without keeping any look-out whatever, thus striking her husband'.while he was facing in a direction opposite to that in which the automobile struck him and had no warning of its approach. It is apparent therefore that that is the negligence on which she relies, and which she would have to prove, to recover judgment against the defendant and his insurer. The defense is that there was no negligence whatever on the part of the defendant Butler and, in the alternative, even if he was in the least way negligent, the decedent was guilty of contributory negligence in having left a'place of safety on the porch of his home where he was when Butler last saw him before going to the -automobile, and in then going into the driveway-when he knew Butler would back his car over the driveway -in order to get out'to-North Street! It is further alleged that he placed himself in a position of danger without maintaining a proper look-out for the movement of the Butler car which he well .knew, was -going to be backed into the driveway. There is a third issue in the case, dependent upon the question of liability,' and. that is'whether the death of 'Mr. Cotten, two and one-half months following the accident, was caused or hastened by the injury to his knee.

.The trial judge discounted the testimony of the defendant Butler, which ás we have said, furnishes the only eye-witness proof of what happened. In his reasons for judgment, he says that he went out to view the scene of the accident and after analyzing Butler’s testimony, and having -observed his demeanor on the witness stand,. and after considering the physical injuries to the decedent as well as all the other facts and circumstances -in the case, he concluded that the accident could not have happened as testified to .by Butler and he then proceeds to reconstruct it in the way in which he finds it happened.

In order to accept Butler’s version, .the trial judge says that he would have to .conclude that the decedent was either insane or was deliberately seeking to get hurt by the car in its 'backward movement and as there is nothing in the record to indicate either one of these probabilities, he is bound to reject his testimony and decide the case in the manner in which he has rebuilt or reconstructed the accident. We do not think that it is necessary to indulge in the condition of mind of Mr. Cotten at the time of the accident. There is ample proof in the record to show that he was a man enjoying life at his age, and had no intention of deliberately and purposely getting injured. From the very nature of his injury, which apparently was so slight that he did not require any assistance after it happened, and kept walking around, we do not think the idea of him wanting to deliberately injure himself should play any part in the determination of the case. We have not the advantage which the trial judge had of viewing the scene and of observing Butler’s demeanor ■on the witness stand, but reading his testimony as it appears in the record, he impresses us as having been a pretty fair and honest witness. It is true that he has an interest in the., case because the amount demanded is in excess of his insurance coverage, but it is equally true that the plaintiff is also vitally interested in-the outcome of the suit.

To adopt the trial judge’s ideas as to how the accident happened, it is necessary, as -he did, to resort to." surmises and speculation. In. Paragraph 7 of her petition plaintiff alleges “that at the time of the accident her said husband was standing in a small flower bed which is adjacent to the back porch and back steps of the Cotten residence.” As is to be noted, that allegation does not use the words, “trimming flowers” which is what the trial judge states-he was doing. It is significant that according to Butler’s testimony, and this point is not disputed, that when he left the back porch, Mr. and Mrs. Cotten were both standing on the porch, that Mrs. Cotten, who made the allegation in Paragraph 7 of the- petition does not say one word in her testimony about' her. husband having left the porch afterwards to go and either stand in the flower bed or trim the flowers in the bed next to the steps. The only reference that is otherwise made to trimming hedges is in Butler’s testimony on cross-examination when in answer to a question whether Mr. Cotten told him what he was doing in the yard when he was struck, he answered: “I don’t know that he told me then, but I understood he was out trimming the shrubs, starting to.” He is positive however in stating that he did not see him doing anything like that. In this connection it would seem to us that if Mr. Cotten was intending to trim the flowers, or to trim the hedges, as some mention is also made in the record, that he would have had tools or garden implements of some kind with which to do that, and yet there isn’t any intimation in the record that he had anything of that kind with him. Surely this isn’t sufficient proof to support the ' allegation that Mr. Cotten was standing in or near a flower bed next to the steps of his house and was ■busily engaged in trimming the flowers, as held by the trial judge, and that Mr. Butler who was accustomed to backing his car out of the yard and had been doing so for more than six years, was so careless' on this particular morning as to back on an angle into the flower bed and bump into Mr. Cotten and yet this is the only reasonable conclusion the judge’s reconstruction of the accident can lead to.,

But let us say that Butler was not entirely free from blame in his manner of preparing to back or in actually backing his car we still cannot understand how a man of Mr. Cotten’s judgment and his apparent agility for a man of his age as is reflected in this record, could be held to be entirely free from fault himself. He knew that for the past six or seven years Mr. Butler used this means of exit from their premises to get His car on North Street; he saw him on the back porch a matter of seconds or so, before he left to go to his car, knew that he was leaving as he customarily did every Sunday, and knew that in order to get out to the street he had to back his car as he usually did. He was in a place of safety when Mr. Butler last saw him and should have anticipated that there might be some danger in leaving it and placing himself anywhere near the driveway during the time that the car was going to be backed out. Butler, on the other hand who had last seen him standing on the back porch, and having, before entering his car, seen that the driveway was clear, and again after entering his car, looked to his left and observed again that there was nothing to impede his backing on that side, had a right to assume that he could back out in safety without causing injury to any one, especially to a man of such judgment as Mr. Cot-ten possessed. It is true that he did not look to his right while he was backing, but we do not very well see how he could be expected to have done this and continued his operation of backing. He says that he did what drivers generally do when he looked through the rear-view mirror in his car and did not see any one in the back of him. Counsel for plaintiff says that that did not afford him a good view because he had -to make an angle turn to his left and while he was making that turn, it was impossible for him to see any one standing immediately back of him in the driveway. That may 'be so but the fact that he had to make this turn in backing, imposed a corresponding duty on Mr. Cotten, if he was standing anywhere near the driveway, to take care of himself, as he no doubt knew that that was the way in which the car had to be backed. From our viewpoint of the case therefore, it would seem that if Butler was in any manner negligent, the decedent himself was also negligent and his negligence contributed in such a way to his own injury sustained in 'the accident as to bar his recovery.

During the cross-examination of the defendant, Butler, it developed that soirie time after the accident, he had given his insurance carrier a statement which was reduced to writing, informing them how the accident had happened. He was asked if he would authorize the insurance company to1 make the statement available and replied that if that were permissible, he had no objection. Counsel for plaintiff then asked counsel for the defendant insurance company if he was willing to make the statement available to the court, -to which counsel replied that such a request was only an effort to bring in something that had no place in the record. Without being called on for a ruling, apparently, the trial judge stated that he did not see that there was anything before the court.

Counsel for plaintiff now stress the point that because of the insurance company’s refusal to produce the statement a presumption arises that it contained matter that was unfavorable to its side of the case and that this presumption should be applied against it. But there was no' refusal to produce the statement. By his very ruling the trial judge must have thought that there wasn’t as he stated that there was nothing before the court on which to rule. In view of what he stated at the time we cannot very well understand how later on, in giving his reasons for judgment, he attached such importance to the absence of the statement from the record 'based on what he now says was the refusal of counsel for defendants to produce it.

We therefore are unable to agree with the learned trial judge in his appreciation of the evidence and the conclusions he has-otherwise reached in the case and it becomes necessary for us to reverse the judgment appealed from.

For the reasons stated it is nqw ordered,, adjudged and decreed that the judgment appealed from be and the same is hereby reversed, set aside and annulled and it is-further ordered that there be judgment in favor of the defendants, James S. Butler and Zurich General Accident and. Liability Insurance Company, Ltd., and against the plaintiff, Mrs. Mary Byrne Cotten, rejecting the said plaintiff’s demands and dismissing her suit at her costs.

On Application for Rehearing.

PER CURIAM.

In the opinion herein handed down it is stated that the defendant, Butler, kept his car parked about 30 feet from the rear steps of the Gotten home; that “he always backed his car out to the street and in order to do so it was necessary for him to- back somewhat at an angle from south to east, some 12 to IS feet, and then straighten out so as to back his car straight to North Street through the driveway of the Cotten property.” This statement may have given the impression that he always backed his car all the way-tq North Street whereas we find, on again reviewing the testimony, that what he did was to back some distance to his left or toward the northeast and then turn around in order to go- forward.

In determining the issue of negligence that 'was presented, however, the point whether he usually backed his car all the way to North Street or only part of the way and then turned around, is of no consequence as the accident happened .whilst he was in the act of backing his car, cutting slightly to his left or toward the east as he did so. That is what he always did.

Otherwise, we find the facts to be as stated, on the basis of which the case was decided.

We have carefully considered all the other points raised in brief of counsel in support of their application for rehearing but remain convinced, that all of their contentions have been properly disposed of.

The application will therefore be refused.