text:
    GUIENT v. MATHIESON CHEMICAL CORPORATION.
    No. 3127.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    Jones, Kimball & Owen, Lake Charles, for appellant.
    William R. Tete, Lake Charles, for ap-pellee.
   LeBLANC, Judge.

The defendant has appealed from an adverse judgment in the lower court which awarded the plaintiff workmen’s compensation as for total and permanent disability at the rate of $20.00 per week and $500.00 medical expenses. The case involves the application of what has come to be known in our workmen’s compensation law as the “proximity rule”. That rule relates to the right of an injured employee to recover compensation when he suffers a disability that results from an accident sustained by him which occurs at a public crossing which is in such close proximity to the premises of the plant at which he works as to constitute a necessary convenient passageway for the conduct of the employer’s business, and in principle therefore, may be said to be a part of the premises.

The facts in the, present case on which the application of the rule has to depend are not disputed. The essential particulars appear in a stipulation entered into between counsel and which is filed in the record. They are in effect as follows : Plaintiff was an employee of the defendant, Mathieson Chemical Corporation, whose business is of a hazardous nature. The corporation’s plant is located about three miles west of Lake Charles, on the south side of U.S. Flighway 90. The plaintiff resides in the town of Opelousas which is approximately 80 miles from Lake Charles. He had no means of conveyance of his own and the employer did not furnish his transportation. Like many other employees engaged in industrial occupation in the defendant’s and other plants around Lake Charles, he .went to work each morning on a bus or public conveyance owned and operated by an individual, which left Opelousas in the morning at about 4:30 or 5 o’clock, so that he could report for work which commenced at 7:30.

Other facts developed are that the Mathieson plant is located approximately % of a mile south of Highway 90. It covers a large area of ground 100 yards in width and 300 yards in length which is entirely surrounded by a wire fence 7 feet high. There are several gates in the fence but the employees going to work had to use the gate which is located at about the center of the plant property line along Highway 90 which is designated as the entrance gate. A watchman is stationed at the guard house next to the gate and each employee entering has to exhibit his badge in order to be identified before being permitted to enter the premises.

As usual, on March 30, 1948, the plaintiff boarded the bus at Opelousas in order to reach work at 7:30 and made the customary journey from that town to the plant reaching there about 10 minutes before 7 o’clock. The bu's, following its customary procedure, stopped opposite the entrance gate to the plant and discharged the plaintiff and some others who were likewise employed at the Mathieson plant. There is a large area on the south side of the highway which has been shelled by the Mathieson Corporation where buses may park when they have to stop at that point. No such landing area is provided 'on the north side of the highway and following its usual custom, the bus on which the plaintiff was riding stopped on its right side or the north shoulder of the highway in as much as it was traveling in a westerly direction, and discharged the employees who were going to get off there to go to work. The entrance gate of the plant was open preparatory to admitting the employees who were going to go on the 7:30 shift. Whilst the plaintiff was in the act of traversing the highway after having left the bus, he was struck by an automobile driven by a stranger, traveling in an easterly direction and suffered the injuries which have permanently and totally disabled him.

In discussing the rule invoked by the plaintiff in this case the two factors, (1) the proximity of the public passageway and its necessity and convenience for the conduct of the employer’s business, and (2) the relation which the time of the accident bears to the time at which the injured employee was to assume his duties, are very important elements that have to be taken in consideration. These factors of course are not mentioned in the workmen’s compensation statute itself, Act No. 20 of 1914, and its subsequent amendments, 'but in the spirit of that liberality which is to be accorded to an injured employee who prosecutes a claim for compensation under its provisions, the courts have almost invariably used them in construing the law which obliges an employer to pay compensation when the employee receives personal injuries resulting from an accident “arising out of and in the course of his employment”. Dart’s Stat, sec.’4392, Act No. 20 of 1914, § 2, as amended. As pointed out by this court in the recent case of Babineaux v. Giblin, La.App., 37 So.2d 877, 878, whilst the general rule is to the effect that an injury sustained by an employee away from the employer’s premises while going to and returning from his work, does not arise out of and in the course of his employment, there are three definite exceptions which were enumerated and the third mentioned is the one that involves the rule of close proximity to the premises of the employer with which we are here concerned. Under the facts in that case it was held that the rule did not apply but the decision clearly demonstrates that this court recognizes the rule as in fact do all of the appellate courts of the state.

The rule may be said to have originated in the well-known case of Cudahy Packing Company of Nebraska v. Parramore et al., 263 U.S. 418, 44 S.Ct. 153, 155, 68 L.Ed. 366, 30 A.L.R. 532, and apparently it has been followed not only by the Supreme Court of the United States which in that decision affirmed a ruling of the Supreme Court of the State of Utah, but 'by nearly all of the courts of last resort in the country. In the cited case the employee who was riding to work with a fellow employee, in the latter’s automobile, was killed in an accident when the car he was riding in was hit by a train while crossing a railroad track before reaching the plant at which he was employed. The court found that the location of the plant was so situated that the customary and only practicable way of immediate ingress and egress for the employees in going to work across this railroad track was one of hazard. The railroad was not only immediately adjacent to the plant, but by means of switches, was connected to it and the court enunciated the rule that “in principle, it was as though upon the actual premises of the employer”.

Subsequently the Supreme Court of the United States, in the case of Bountiful Brick Company et al. v. Giles et al., 276 U.S. 154, 48 S.Ct. 221, 222, 72 L.Ed. 507, 66 A.L.R. 1402, seems to have extended the rule a bit further. The court stated that although that case came “nearer the border line, (it) falls within the principle of the Parramore case”. From the facts shown, it appeared, that no definite line of travel in entering and emerging from the plant premises was indicated by the company or followed by its employees and, with the company’s full knowledge and acquiescence, they habitually crossed the railroad track adjacent to the plant wherever they saw fit. Nevertheless, the court stated that no matter how the crossing was made, “the risk thereby incurred was reasonably incidental to the employment and became annexed as an implied term thereof”.

In the present case the gate at the entrance to the plant premises which was adjacent to the highway was the only means of ingress and egress used by the employees. They were instructed to use that gate and no other. That gate is located 51 feet south of the paved portion and 60 feet south of the center line of the highway. The highway afforded the only way of travel by which the employees reached the plant and since they are a necessary and integral part of the operation of the plant it is a logical deduction that, as a means of reaching their place of employment, it becomes a necessary convenient passageway for the conduct of the employer’s business, and this, notwithstanding the fact that the public generally is subjected to the same hazards as are the employees who have to cross it regularly in going to and coming from work.

On the point of location of the highway and of its proximity to the premises of the employer as well as the convenience which it affords, the case is governed by the same principles of law as were considered under facts of a similar nature in the two cases which we have cited. As further authority on this point, we might refer to the very recent case of Attaway v. Fidelity and Casualty Co. of New York, La.App., 39 So.2d 632, decided by the Court of Appeal for the Second Circuit of this State.

Counsel for defendant point out that the employer in this case provided a landing place for its employees who came to work on buses as did the plaintiff and we assume that it is meant that he should have availed himself of this place of safety in order to alight from the bus. As already stated however this area is on the south side of the highway and whilst it may well be that it did serve the useful purpose contended for by counsel for such employees coming from the West, it is apparent that it cannot be so used by those employees who are riding on a bus going west as was the plaintiff and who are customarily discharged on the north side of the highway. True, the buses traveling west might be pulled over to their left-hand side of the highway, or towards the south, and afford this same safety to employees traveling from the east, but the fact remains that they do not do so and the employees apparently have no control of their movements.

With regard to the time element and in measuring it from the moment when the accident occurred to the time at which the injured employee’s services are to begin, the courts seem to allow what is called “a reasonable interval between the two periods”. In the Parramore case [63 U.S. 418, 44 S.Ct. 155] the court stated that it attached “no importance to the fact that the accident happened a few minutes before the time Parramore was to begin work, and was therefore, to that extent, outside the specified hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.” In a case like the one under consideration, where the employee is living at a great distance from the place of employment and cannot choose his hour of departure from home and his hour of arrival at the plant but has to depend upon a schedule of a public conveyance, we would hardly say that the time element under discussion plays as important a part as it does in cases where he furnishes his own means of transportation and has some choice in the matter. But even under the facts of this case the accident occurred within 40 minutes at the most, from the time that the employee would begin the actual services and duties of his employment. Within a less period of time, that is, the time it would have taken him to walk the 60 feet from the point on the highway where he was struck to the entrance gate where he had to pass and be identified, he would have been on the premises of the employer and would have been in an even more favorable position than the employee in the Parramore case. Certainly he was not expected to remain on the north side of the highway and there wait until it would have taken such time as was required for him to cross the road, pass through the entrance gate and walk over the premises in order to reach his working place at the moment he was expected to begin his duties. As his employment contemplated his entry upon the premises the same as it contemplated his working there and had to include “a reasonable interval of time for that purpose”, as stated in the Parramore case, we firmly believe that the rule as laid down in that case applies with equal if not greater force here. On this point abo, the case of Attaway v. Fidelity Casualty Company, supra, is particularly pertinent.

We think -it proper for us to make reference to the able manner in which this case was argued and briefed by counsel on both sides. Counsel for defendant especially wrote an exhaustive brief in which numerous cases are reviewed, some from our own courts as well as several from courts of other states. In some, on facts somewhat related to the facts in this case, the courts were not so liberal in applying the rule that is here involved. We believe however that the rule is too well recognized by the courts of Louisiana for us not to adhere to it in this case, and therefore we find ourselves constrained to follow and apply it to the facts as they appear from the record.

For the reasons stated, the judgment appealed from is affirmed at the costs of the defendant, appellant herein.


source: Caselaw Access Project

author: FOURNET, Justice.

license: Public Domain

text:
    215 La. 667
    CONEY v. CONEY.
    No. 39028.
    Supreme Court of Louisiana.
    May 31, 1949.
    Rehearing Denied June 30, 1949.
    James T. Burns, Covington, Ponder & Ponder, L. B. Ponder, Jr., Amite, for defendant-appellant.
    Mary Purser, Carroll Buck, Amite, Fred G. Benton, George Mathews, Baton Rouge, for appellee.
   FOURNET, Justice.

Walton B, Coney prosecutes this appeal from the judgment of the lower court ordering him to pay alimony of $140 a month to his wife pending the final determination of her suit against him for a separation from bed and board, such alimony to be due and payable from the date of the filing of the suit on March 23, 1948. The plaintiff, answering the appeal, seeks to have this award increased to the amount prayed for, that is, $500 a month, beginning on August 1, 1947.

It is the contention of the appellant that his wife is not entitled to any alimony because (1) her petition discloses neither a cause nor a right of action and, of necessity, alimony pendente lite should fall with her main demand; (2) the evidence adduced on the trial of the rule for alimony disclosed she was at fault because she abandoned him; (3) in the alternative, that the award of $140 a month was erroneously made since there was no proof to show the plaintiff is in necessitous circumstances or that there was any community income or any community property that was income producing' at the time of the trial of the rule; and (4) in the further alternative, that the award should be reduced to not more than $40 a month. The defendant, in a motion filed here on the day this case was argued, seeks to have us remand the case in order that he may show his wife is not in necessitous circumstances as she obtained employment during the legislative term of 1948 and, thereafter, on October 15, • 1948, became the executive secretary of the Louisiana Conference of Social Welfare at a salary of $300 a month.

While the petition in this case may be said to be inartistically drawn, dealing largely in generalities and conclusions, it is one that can, as was stated in the case of Trautman v. Krauss, 159 La. 371, 105 So. 376, 377, “be decided with a better understanding and greater assurance of doing justice from the evidence than from the allegations of the petition.” Furthermore, in addition to the conclusions and generalities in the petition, there are also contained sufficient allegations of fact that, if proved, would establish such cruelty as to justify a decree of separation, for the plaintiff alleges that beginning a short time after the marriage and continuing until the separation on August 27, 1947, her husband, without any just cause or provocation on her part, intermittently ignored her completely, refusing frequently and for long periods of time to even speak to her; that he threatened to beat her during the month of June, 1947, and again on August 1, 1947; that on several occasions he told her of his dissatisfaction with her, and suggested that she return to her own people, because of her failure as a wife, mother, and housekeeper; that on or about August 1, 1947, when it became apparent she would have to undergo a serious operation, he again suggested she go to her own people but requested that she at least return to the matrimonial domicile following the operation long enough to prevent the creation of the impress'on that he drove her away because of her illness; and that she did go to her sister’s home on August 27, 1947, for the operation but did not return to the matrimonial domicile because of the cruel treatment to which she had been previously subjected and which had left her in a highly nervous condition. She further alleged that since the operation he has not provided her with any means of support, despite her desperate need. See, Olberding v. Gohres, 107 La. 715, 31 So. 1028; Duhon v. Duhon, 110 La. 240, 34 So. 428; Schoras v. Staba, 150 La. 674, 91 So. 148; Krauss v. Krauss, 163 La. 218, 111 So. 683, 58 A.L.R. 457; Moore v. Moore, 192 La. 289, 187 So. 670.

Appellant’s second contention is equally without merit for it is the mandatory duty of the trial judge in a suit for separation from bed and board or for a divorce, if the wife has not sufficient income for her maintenance during the pend-ency of the suit, to order her husband to pay her a sum of money for her support in proportion to her needs and to his means to pay the same, Article 148 of the Revised Civil Code, for alimony “is nothing more than the judicial sanction and enforcement, under abnormal conditions, through the judiciary, of the duty by the husband to support the wife”, State ex rel. Huber v. King, 49 La.Ann. 1503, 22 So. 887, 889, and it does not, therefore, depend upon the merits of the suit. Grisamore v. Grisamore, 191 La. 770, 186 So. 98, and the authorities therein cited.

The alternative demands are also unimpressive. The testimony in the record reveals the plaintiff and defendant were married on July 15, 1945, and that although there were no children born of this union, six of the husband’s seven children by a former wife and his mother were livirg with them. The evidence unmistakably shows that the plaintiff is in necessitous circumstances; that after the operation she went to live in her sister’s home and that from that time her husband did not contribute one penny toward her support and maintenance until he was ordered to pay her $75 by the court after this suit was filed. While the defendant did testify that at the time of the trial of the rule he was operating his two businesses at a loss (because of a fire in his saw mill and because of his inability to get merchandise to sell in his other business) and that he owed the bank $74,000, $25,000 to insurance companies, and some other personal loans, he did admit under cross-examination he owned some real estate, that while the suit was pending he sold a business (the Coney Mercantile Company) for around $8,700, a part of which was paid for in cash; that he purchased a Lincoln automobile; that he maintained two children in college, one at Marion and the other at Riverside; and that he had made repairs to his home. The record further reveals that when plaintiff first married the defendant he allowed the plaintiff the sum of $500 a month with which to run the house, which amount did not include expenditures for utilities and other expenses in connection with the maintenance of the family, for which he personally paid an additional sum of about $500 a month. Since the separation two of the children have married and moved away and two are in college, leaving only two children at home with the defendant's mother and an aunt who is there temporarily.

Under these circumstances we think the trial judge was most conservative in fixing the amount of the alimony for the plaintiff’s support during the pend-ency of this suit at $140 a month. However, because of the unsatisfactory condition in which we find the record, we are not inclined to disturb this award at this time, particularly since it is disclosed in the letter from the Louisiana Conference of Social Welfare that is attached to the defendant’s motion to remand the case that the plaintiff has been employed as the executive secretary of this agency since October 15, 1948, at a salary of $300 a month. Nor do we look with favor upon appellant’s motion to remand, for, obviously, when the appellant perfected his appeal in this case, his wife was compelled to go to work in order to maintain herself.

Counsel for plaintiff concede, as they must, that alimony pendente lite is only due and payable from the date of judicial demand and, therefore, their claim for this alimony from August 1, 1947, is untenable.

The motion to remand is, therefore, overruled, and the judgment appealed from is affirmed.

O’NIELL, C. J., takes no part.


text:
    215 La. 675
    STATE v. MAGEE.
    No. 39375.
    Supreme Court of Louisiana.
    May 31, 1949.
    Rehearing Denied June 30, 1949.

      Carter & Erwin, France W. Watts, Jr'., Franklinton, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jas. T. Burns Dist. Atty., Covington, C. Ellis Ott, Associate Counsel, Bogalusa, for appellee.
   FOURNET, Justice.

John W. Magee is appealing from his conviction of manslaughter on an indictment charging him with the murder of Luther Barton and his sentence thereunder to serve IS years at hard labor in the State Penitentiary, relying for the reversal thereof on errors allegedly made by the trial judge during the course of the trial, to which timely objection was made and proper bills of exceptions reserved.

The first bill was reserved when the state sought, over defendant’s objection, to offer in evidence a bloody shirt worn by the deceased at the time of the homicide. The second and third bills were reserved to the ruling of the trial judge refusing to allow the accused to introduce testimony to establish that the deceased was a dangerous character and had, prior to the homicide, threatened the defendant. The next bill was reserved when the trial judge overruled the objection of the defendant to a statement by the district attorney in his closing argument to the effect that the sheriff and his deputies, in their testimony, stated the accused told them that after leaving his home on the day of the homicide he went to the highway and there waited for the deceased to come along, and refused to instruct the jury to disregard this statement. The last bill was reserved when the court refused to grant the accused a new trial, the motion for such new trial being based upon the errors forming the basis of the first four bills of exceptions.

The basis for the objection to the introduction of the shirt, as set out in the bill of exceptions, is that (1) it had not been in the possession of the sheriff during the entire period that intervened between the homicide and the trial, the sheriff only having secured it three weeks before the trial from the widow of the deceased; and (2) it was introduced in evidence for the sole purpose of influencing the minds of the jury and prejudicing them against the accused.

The trial judge in his per curiam to this bill states: “At the time the District Attorney sought to offer the shirt in evidence Dorman A. Crowe, the Sheriff of Washington Parish, was testifying on behalf of the State and his testimony was to the effect that he had gone to the scene of the homicide shortly after its commission, where the deceased was lying in the road and that soon thereafter the Coroner of Washington Parish came to the scene and removed the shirt from the body of the deceased. The witness further testified that the shirt sought to be offered in evidence was the identical shirt that he saw removed from the body of the deceased and was in the same condition as at the time of removal. The witness was positive in the identification of the shirt, as well as the fact it was in the same condition as when removed from the body of the deceased. The Sheriff had previously testified that the defendant had told him shortly after the killing that he had stood by a pine tree south of the highway in which the deceased’s body was found. He further testified that he removed buckshot from a pine tree on the north side of the highway and that this tree was in a direct line with the body of the deceased, as well as the pine tree by which the defendant stated he was standing at the time of the shooting. Since the Coroner had previously testified that the deceased was shot in the head and the left shoulder and as the shirt had a hole in it at the left shoulder at the armpit, which was apparently made by a buckshot, I considered it proper to admit the shirt in evidence in order to show the relative positions of the deceased and the defendant at the time of the killing.”

Clearly there is no merit to this bill for the shirt was properly identified and there is no suggestion that it was altered, or tampered with in any way. Furthermore, we think the evidence was clearly relevant under the circumstances outlined by the trial judge in his per curiam. See, State v. Green, 160 La. 79, 106 So. 701; State v. Richey, 198 La. 88, 3 So.2d 285; and State v. Shotts, 207 La. 898, 22 So.2d 209.

In his per curiam to Bills of Exceptions Nos. 2 and 3 (treated together because both are controlled by the same principle of law), the trial judge states he refused to allow the evidence sought to be offered of the dangerous character of the deceased and the threats he purportedly made to the defendant because the proper foundation for the introduction of such evidence had not been laid, that is, the evidence failed to show an overt act or hostile demonstration on the part of the deceased at the time of the homicide; in fact the trial judge was convinced the defendant was the aggressor.

Before evidence of dangerous character of the deceased or prior threats made by him against the accused can be admitted, it must be established to the satisfaction of the trial judge that an overt act or hostile demonstration was- committed by the deceased toward the accused. Article 482 of the Code of Criminal Procedure. The trial judge’s ruling on this question, however, is subject to review by this court on appeal. State v. Brown, 172 La. 121, 133 So. 383; State v. Bridges, 175 La. 872, 144 So. 602.

The overt act and hostile demonstration above referred to means any demonstration on the part of the deceased toward the accused of such a character as to create in the mind of a reasonable person that his life is in danger or that he is in danger of receiving great bodily harm. See, State v. Jones, 175 La. 1066, 145 So. 9, and the authorities therein cited.

We are convinced, as was the trial judge, that the proper foundation for the introduction of evidence tending to establish the dangerous character of the deceased or threats made by him toward the accused was not laid, for the evidence is not only convincing that the defendant was the aggressor but strongly indicates he actually shot the deceased from ambush.

The defendant’s further contention that he is entitled to offer evidence of prior threats to explain his reason for' being armed on the occasion for- the homicide, under the well established rule that the defendant is always permitted to explain his preparation for the commission of the crime that has been established by the prosecution (Wharton’s Criminal Evidence, 753), is untenable in this case because the defendant explained he was armed on this occasion in order that he might hunt squirrels'.

Bill of Exceptions No. 4 is equally without merit. The trial judge properly refused to instruct the jury to disregard the statement of the district attorney in his closing argument that the defendant had told the sheriff and his chief deputy he had waited for the deceased by the highway. In the per curiam of the trial judge, by which we are bound, it is pointed out that both the sheriff and his chief deputy had testified to this effect, in the absence of the jury as well as before the jury. Furthermore, the trial judge’s ruling is substantiated by the evidence that appears in the record.

Bill of Exceptions No. 5, being based on the trial judge’s refusal to grant the motion for a new trial that consisted, of nothing more than the four errors just disposed of, presents- nothing further for our consideration.

The conviction and sentence are affirmed.

O’NIELL, C. J-, takes no part.


author: PONDER, Justice. .McCALEB, Justice

text:
    215 La. 682
    CHERAMIE v. STILES.
    No. 38963.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    Breard Snellings and Malcolm W. Monroe, New Orleans, for defendant-appellant.
    Harvey Peltier, Thibodaux, for plaintiff-appellee.
   PONDER, Justice.

The defendant appeals from a judgment annulling a mineral deed insofar as it affects a one-fourth Q4) of an undivided one-third (%) mineral interest in a tract of land located in Lafourche Parish.

The plaintiff executed a mineral lease in favor of D. W. O’Hern on June 13, 1936 covering a tract of land containing approximately sixty arpents. On March 1, 1938, the plaintiff employed Numa F. Mon-tet, an attorney, to bring suit and take whatever steps that were necessary to cancel the lease. There had been no production on the land up to that time and the ■plaintiff had not received the delay rentals, provided for in the lease to keep it alive. It was agreed that the attorney was to receive a one-third mineral interest in the land for his services if he were successful in securing the cancellation of the lease. The plaintiff conveyed the mineral interest to the attorney at the time the agreement was entered into. On August 18, 1938, the plaintiff entered into a contract with another attorney, the defendant herein, with the view of having the lease cancelled. It was agreed that this attorney would recover the mineral interest from Montet and secure the cancellation of the lease. The plaintiff -brought suit to have the lease can-celled. Montet willingly reconveyed the one-third mineral interest without resort to litigation. The plaintiff conveyed this mineral interest to the defendant. The defendant brought proceedings and had the plaintiff placed in possession of a one-seventh (%) undivided interest in the Succession of Ozeme Cheramie. Sometime after the suit had been filed seeking the cancellation of the lease, it was ascertained that the delay rentals had been pa-id by William Helis, the assignee, to the Citizens Bank & Trust Company at Cut Off, Louisiana, which had been credited, through error, to the account of another person bearing the same name as that of the plaintiff. Under the terms of the lease the delay rentals were to be paid to the plaintiff or credited to his account in this bank. No further steps were taken in the suit to cancel the lease after it was ascertained that the delay rentals had been paid.

There is dispute as to the extent of the agreement between the plaintiff and the defendant. The agreement was not reduced to writing. From the testimony of the plaintiff, it appears that the defendant was to secure the cancellation of the lease and recover the mineral interest previously transferred to Montet for which he was to receive the recovered mineral interest for his services. The plaintiff is illiterate and uneducated. On account of his inability to speak English, an interpreter was required at the time the agreement was entered into. The testimony of the interpreter and two other persons who were present at the time of the agreement corroborates’ the testimony of the plaintiff, except one of the witnesses stated that the agreement included placing the plaintiff in possession of a one-seventh interest in the Succession of Ozeme Cheramie. The defendant testified that the agreement was to the effect that he was to receive the mineral interest, when recovered from Montet, in payment of his services to institute proceedings for the cancellation of the lease, to recover the mineral interest from Montet and place the plaintiff in possession of an undivided interest in the Succession of Ozeme Cheramie. The defendant has disposed of three-fourths (%) of the one-third (V3) mineral interest that he received from the plaintiff under the contract and is now owner of only one-fourth (14.) of the one-third (V3) mineral interest. The present suit is brought to recover this one-fourth of the one-third mineral interest standing in the name of the defendant. The lower court gave judgment in favor of the plaintiff- and the defendant has appealed.

The lower court was of the opinion that the prime motive of the contract was the cancellation of the lease and that it was entered into under the erroneous belief that the delay rentals had not been paid, which is reflected by the written opinion of the trial judge.

In view of the fact that the contract with the previous attorney was on a contingent basis, contingent on the cancellation of the lease, and that the preponderance of the testimony is to the effect that the contract involved in this suit is to the same effect, it appears that the present agreement was a continuation of the contract with Montet by merely changing the attorneys. While the proceedings placing the plaintiff in possession of the undivided interest in Ozeme Cheramie’s succession might have been included in the second agreement, it was only incidental to the main purpose. The evidence in respect to it is somewhat conflicting. It appears that some of the other heirs gave the defendant a mineral interest -for his services in placing them in possession of an undivided interest in the succession in those proceedings. Be that as it may, the prime motive of the contract under the evidence in this ■case was to secure the cancellation of the lease. Insofar as the recovery of the mineral interest from Montet, it would not redound to the benefit of the plaintiff because the defendant was to receive it for his services if the contract was carried out.

Under the provisions of Article 2021, Revised Civil Code, a conditional obligation does not take effect until the event happens. It is a suspensive condition to be performed in the manner contemplated by the parties. Article 2037, Revised Civil Code. When an obligation has been contracted on the condition of the happening of an event it is considered broken if it becomes certain that the event will not occur. Article 2038, Revised Civil Code. The contract in this case was contingent on the annulment of the lease. The annulment of the lease is impossible -because the delay rentals were paid. The plaintiff did not prevent the fulfillment of the obligation and its failure was the result of a misconception of facts at the time the contract was confected.

Moreover, the contract cannot be given effect because there was an error of fact as to the principal cause and motive for making the contract. The contract was entered into under the mistaken belief that the delay rentals had not been paid and that the lease could be cancelled because of this breach. Under the provisions of Articles 1819, 1821 and 1823, Revised Civil Code, the contract must fall.

“Contracts are founded on the agreements, not on the disagreements, of the parties. Where they misunderstand each other, there is no contract.” Laborde v. Aymond, 172 La. 905, 135 So. 913, 914, citing Pittsburg & Southern Coal Company v. Slack, 42 La.Ann. 107, 7 So. 230.

The existence of an error of fact proceeding from ignorance of what really exists or the mistaken belief in the existence of facts which are the principal cause of and bear upon the motive for the yielding of consent to an agreement are sufficient grounds to set aside a contract. Calhoun v. Teal, 106 La. 47, 30 So. 288.

Consent is vitiated by error. Pan American Production Co. v. Robichaux et al., 200 La. 666, 8 So.2d 635.

Counsel for the defendant contends that the plaintiff did not plead error of fact and that the pleadings were not enlarged because timely objection was taken to evidence -of the error of fact at the time of the trial.

The defendant concedes in his testimony that the plaintiff was surprised when it was ascertained, after the suit was filed, that the delay. rentals had been paid to the bank. He admits that the plaintiff honestly believed, up to that time, that the delay rentals had not been paid. On the trial of the case, the defendant was called on cross-examination and the error of fact was elicited from him. Counsel only objected to evidence of error of fact after another witness had -been placed on the stand. Moreover, the defendant in his answer alleges facts showing how the error arose. Under the provisions of Article 329 of the Code of Practice replication is not favored and rejoinder is not permitted. ' All allegations in the answer are open to every objection to law and fact as though specially pleaded. Lee v. Perkins, 195 La. 939, 197 So. 607.

For the reasons assigned, the judgment is affirmed at appellant's cost.

O’NIELL, C. J., takes no part.

HAMITER and HAWTHORNE, JJ., concur in decree.

.McCALEB, Justice

(concurring).

The principal contention in this case is one of fact, viz., whether the conveyance to Mr. Stiles was for professional services performed and to be performed or whether it was contingent upon his success in securing the cancellation of the mineral lease.

Since the majority opinion finds the fact to he that the transfer of the mineral interest was contingent upon Mr. Stiles obtaining a cancellation of the lease, the judgment in plaintiff’s favor is proper as the defendant is admittedly unable to fulfill the condition. Articles 2021, 2028, 2037, 2045 and 2046 of the Civil Code.

I do not, however, subscribe to the dictum that the agreement is ineffective “because there was an error of fact as to the principal cause and motive for making the contract” resulting from plaintiff’s mistaken belief that the delay rentals due under the mineral lease had not been paid by the as-signee. Under this view, valuable services of an attorney could be obtained without recompense if the -client acts under an erroneous belief respecting the facts upon which the cause of action is predicated.

The codal articles and adjudications cited in support of the theory are without pertinence to the case for — here, there is no error respecting the employment or the motive therefor; the error existed in plaintiff's mistaken belief of fact that the mineral lessee was in default. I find it difficult to perceive how this error would have affected Mr. Stiles’ right to the agreed compensation, if the conveyance to him had not been contingent on the success of the lawsuit against the mineral lessee.

I concur in the decree.


text:
    215 La. 692
    CAPONE v. COTTON TRADE WAREHOUSES, Inc., et al.
    No. 38934.
    Supreme Court of Louisiana.
    May 31, 1949.
    Rehearing Denied June 30, 1949.
    Deutsch, Kerrigan & Stiles and Breard Snellings, New Orleans, for defendants-appellants.
    Porteous & Johnson and Parnell J. Hy-land, New Orleans, for plaintiff-appellee.
   FOURNET, Justice.

The plaintiff instituted this suit to recover $1,588.44 from the Cotton Trade Warehouses, Inc., and its insurer, The Employers’ Liability Assurance Corporation, Ltd., for the cost of repairing his passenger bus, allegedly damaged through the negligent operation of the corporation’s tractor-trailer unit in attempting to negotiate a left turn across a four-lane highway in front of the plaintiff’s bus that was then too close to avoid striking the unit, and the sum of $3,000 for the loss of business during the time the bus was under repair.

The defendants, denying the accident occurred as alleged, averred the truck unit had already turned across the highway and was almost entirely out of the westbound traffic lane at the time of the accident, which they charged was caused by the negligence of the plaintiff’s bus driver in traveling at such a rapid rate of speed he could not bring the bus to a stop and avoid striking the trailer unit, and the warehouse corporation sought, by way of reconvention, to recover $496.48 from the plaintiff for the cost of repairing the damaged trailer. In the alternative the defendants pleaded the contributory negligence of the bus driver.

After trial on the merits judgment was rendered in favor of the plaintiff for the cost of repairing the bus, $1,588.44, but his demand for anticipated loss of earnings was rejected, as was also the reconventional demand. The defendants appealed from this judgment and the plaintiff, answering the appeal, seeks to have the judgment amended by including therein the $3,000 claimed for loss of earnings.

The record reveals that this accident occurred shortly after noon on May 3, 1946, on the St. Bernard Highway just west of the Old Menefee Airport, at the point where the road extending to the Mississippi river and leading to the Chalmette slips intersects the highway. The 59-foot highway at this point is composed of four lanes separated by a 15-foot neutral ground, the outside lanes on each side of the highway being 12 feet wide and the inside lanes 10 feet wide. To permit easy access to the side road, the neutral ground here is cut with pavement that runs along with the rest of the paved highway for some 50 feet. Approximately a block below the scene of the accident the road makes a sharp turn, with the result that it is impossible to see in the rear-vision mirror of a vehicle proceeding toward New Orleans any vehicle approaching from the rear that has not yet negotiated this curve. One approaching from the rear, however, is not prevented from seeing the traffic ahead for two or three blocks, because of the clear view across this curve.

The tractor-trailer unit, carrying 50 drums of aviation gasoline weighing 500 pounds each and proceeding along the western side of the St. Bernard Highway toward New Orleans in the outside lane at approximately 15 miles an hour, had passed this turn in the road and was continuing along the straight part of the highway that runs approximately 360 feet from this curve to the point where the side road to the slips intersects it. Slowing down to approximately 5 miles an hour and ascertaining from the rear-vision mirror that the road behind him was free of traffic in so far as he could tell by his mirror, the driver of the truck turned from the right or outside traffic lane across the inside lane, across the paved portion of the middle of the road that cuts through the neutral ground, across the two traffic lanes on the east side of the highway and was poised at the rise where the side road enters the highway, with the rear end of the truck and trailer projecting a few feet beyond the neutral ground into the inside traffic lane on the west side of the highway, when the left rear end of the trailer was struck by the plaintiff’s bus, then proceeding toward New Orleans in the inside lane on the west side of the highway on one of its regular passenger trips between Violet and the Industrial Canal.

It is the contention of the plaintiff, in which he was supported by the trial judge, that the bus was traveling lawfully along the left or inside traffic lane at a rate of 30 miles an hour and had given the proper signal to pass the truck unit, then traveling in the outside lane, when the unit, in an. effort to enter the side road leading to the-Chalmette slips, suddenly and without proper warning turned to the left in front of the-bus when it was only 20 or 25 feet away, this unheralded turn by the truck driver being the cause of the accident.

The defendants contend, on the other hand, ■ that had the position of the two vehicles been as claimed by the plaintiff, it would have been a physical impossibility for the accident to have happened as it did,, since it is revealed by the evidence that the plaintiffs vehicle was traveling between 30 and 35 miles an hour while approaching this crossroad and the truck unit was negotiating the left turn in low gear at a rate of 5 miles an hour, under which circumstances the bus would have either avoided the accident by passing the point before the truck unit reached the left or inside traffic lane 'in its turn, or would have collided with the truck unit near the front end, depending upon the distance the approaching bus was from the scene at the time the unit began to make the turn. The defendants’ version of the accident is, that at the time the truck unit began to make' the turn into the side road the roadway to the rear was free of traffic back to the point where the curve began and that the truck driver,, proceeding with due care, crossed the entire width of the highway and reached the edge of the side road, almost clearing the inside lane of traffic on which the bus was traveling, when it was struck by the oncoming bus on the left rear end of the trailer.

A study and analysis of the evidence in the record unmistakably shows, in our opinion, that the accident occurred in the manner claimed by the defendants. Clearly at the speeds the two vehicles were moving at the time of the accident the on-coming bus must have been between 200 and 300 feet behind the truck at the time it began to make the turn, for the witnesses are unanimous, and are corroborated by the physical facts, that at the moment of the impact, the truck cab had travelled across the entire highway, a distance of some 50 feet, and was at the edge of the intersecting road, with the rear end of the trailer a few feet into the inside traffic lane on which the bus was traveling'. Under these conditions the driver of the bus was either not looking, as he said he was, or he believed the truck was going to clear his side of the highway before the bus reached that point.

We think the testimony of the defendants’ only eyewitness, J. D. Johnson, the driver of the truck unit (his helper who was in the cab with him at the time of the accident was not produced as a witness' because he could not be located), clearly supports this view. He testified that when approximately a half a block from this intersecting road and observing through his rear-vision mirror that the road behind him was clear of traffic, he slowed the truck to 5 miles an hour, threw it into low gear, started toward the center of the highway, and began to swing the trailer into the side road at this low speed because at a faster speed the heavy drums he was carrying would have burst through the wooden sides of the trailer; that when the tractor of the unit was across the highway and hitting the shell road he stopped completely for the purpose of putting the truck into “double-load” to go up the slight incline in the side road, and it was at this instant that the bus “lammed” into the rear end of the trailer that he found, when he got out of the cab, was projecting into the highway about a foot and a half beyond the neutral ground on the west side. He estimated this truck unit (including tractor and trailer) was approximately 40 feet long, and that it took him S or 6 seconds to make the turn because of the swing he had to give the trailer.

His testimony with respect to the position of the cars at the time of the impact is corroborated by the defendants’ witnesses Robert Mahony, a claim adjuster for the insurer, who measured the truck unit and the distances at the scene of the accident, and Arthur Guttierrez, who reached the scene of the accident about 4 minutes after it occurred, and who stated that at that time the bus was partly on and partly off the neutral ground and the rear end of the trailer extended a short distance into the highway, estimated by him to be anywhere between 1 and 4 feet. The plaintiff’s witnesses also corroborate Johnson’s version of the respective position of these vehicles, the only variation in their statements being with respect to the distance beyond the neutral ground the trailer protruded.

While the plaintiff offered the testimony of several eyewitnesses — Albert Henderson, the bus driver, and several passengers, Eugene Perez, Mrs. Edward Molero, Alvin Pluche, and Mrs. John Ohler — an analysis of their testimony reveals that it is not only contradictory in many respects but that these witnesses are in conflict one with the other and that in many material aspects they corroborate the testimony of the unit’s driver, Johnson.

The bus driver and Perez, who sat immediately behind the driver in the bus, did testify the unit began to make the left turn when the bus was only 20 or 25 feet behind the truck. But they are totally discredited by the fact that the bus, traveling between 30 and 35 miles per hour, struck the extreme left end of the trailer just about at the rear wheel instead of striking the truck near the front end, which would have been the case had their version been correct since the truck unit, measuring approximately 40 feet, was traveling at a rate estimated to be 5 miles an hour, or only 7.3 feet per second. Traveling at the rate of 30 miles an hour (and some estimated this speed was as great as 35 miles an hour), the bus was covering approximately 44 feet per second, which means that if the truck began to make the left turn when the bus was only 20 or 25 feet behind it, the bus struck it within half a second after the turn was begun, which is, of course, an impossibility since the physical facts show the bus struck the truck on the left rear of the trailer and the trailer, which was 40 feet long and was traveling at a rate of 5 miles an hour, or 7.3 feet per second, had therefore traveled approximately 50 feet across the highway at that time. Since the truck driver estimated it took him 5 or 6 seconds to make the turn (which estimate is correct at the rate the unit was then traveling), this means that the bus, traveling 44 feet a second, must have been between 200 and 300 feet to the rear at the time the turn was begun.

Besides, Henderson’s testimony is otherwise unimpressive. In many important aspects he contradicts himself while in others he is completely impeached not only by the physical facts, but by other witnesses of the plaintiff. For example, he stated he decided to pass the truck and first blew his horn when he was approximately a block, or 360 feet, away. On cross-examination he says when he decided to pass the truck and blew his horn it was 20 or 25 feet ahead; still again that he was 50 or 60 feet to the rear of the truck when he first blew his horn. As another example, he stated most positively on direct examination that the rear-vision mirror attached to the tractor part of the truck unit extended only 14 inches although the trailer, immediately behind the tractor, was 22 inches wider than the cab at this point. Johnson, the truck driver, testified this mirror extended about 6 inches beyond the trailer part of the unit and the picture of the unit that was taken immediately after the accident and was introduced in the case as an exhibit, shows this mirror does extend beyond the trailer’s side.

The plaintiff’s other witnesses who were in the bus in no way corroborate the driver nor support the version of the plaintiff. Mrs. Molero testified she was sitting in the front seat on the right side of the bus engaged in conversation with Mr. Navis, a fellow passenger, when she looked up after hearing the repeated sounding of the horn, just in time to throw her hands in front of her face before the bus struck the left rear end of the trailer, then near the neutral ground, “just as the trailer was about to clear the highwayThis clearly indicates the bus was right on the trailer when the horn was blown and that the driver had either not seen the truck up to that moment or else that he believed it would have completed the turn and cleared the highway before he reached that point. Of course, the reason it did not clear the highway was because the driver of the truck had to come tó a complete stop in order to put the truck into “double-load” before going up the incline into the side road. Italics ours.)

Alvin Pluche, who estimated the bus was going between 30 and 35 miles an hour, said he was not looking forward until the horn was blown by the driver, that they were then about 300 feet behind the truck, and that when they had reached a spot about 150 feet behind the truck the bus driver again sounded the horn. He estimated that when the truck began to make the turn the bus was between 125 and 150 feet to the rear. He observed that the bus driver kept driving “straight ahead and before the trailer could clear the end of the road he hit the end.” He further stated that in another second the lane would have been clear and the bus would have passed the spot without any trouble. This version, given by the plaintiff’s witness, more nearly, in our opinion, approximates what actually happened.

Mrs. Ohler, while giving testimony that is unsatisfactory in many respects that are not necessary to detail here, did testify the truck began to' make the turn when the bus was 100 feet behind.

We therefore conclude that the sole and proximate cause of the accident was due to the negligence and carelessness of the driver of the bus and, accordingly, the plaintiff is answerable to the warehouse corporation for the damages caused the trailer.

Although the warehouse corporation asked in reconvention the sum of $496.48, it conceded on the trial of the case that the actual cost of repairing the trailer was $253.18, and proof was made accordingly.

For the reasons assigned the judgment appealed from is annulled and set aside and it is now ordered, adjudged, and decreed that there be judgment rejecting the claims of the plaintiff, Joseph Capone, against the Cotton Trade Warehouses, Inc., and The Employers’ Liability Assurance Corporation, Ltd., and it is further ordered that there be judgment in reconvention in favor of the Cotton Trade Warehouses, Inc., and against the plaintiff, Joseph Capone, for the sum of $253.18, with legal interest from judicial demand; the plaintiff to pay all costs of this proceeding.

O’NIELL, C. J., dissents, being of the opinion that the judgment appealed from is correct and should be affirmed.