author: JANVIER, Judge.

text:
    BYRNES v. NATIONAL CASUALTY CO. et al.
    No. 19412.
    Court of Appeal of Louisiana. Orleans.
    March 27, 1950.

      Joseph A. Casey, M. C. Scharfif, New Orleans, for plaintiff-appellant.
    Gordon Boswell, Stanley E. Loeb, New Orleans, for National Casualty Co., defendant-appellee.
    Plauche F. Villere, New Orleans, for Denis Rufin, defendant-appellee.
   JANVIER, Judge.

Plaintiff, an elderly lady, sustained serious physical injuries on the night of November 28, 1948, when she fell while walking 'in the parking lot provided by the operator of a restaurant located at 3016 South Carrollton Avenue, known as “Ye Olde College Inn”. She brought this suit for damages against Denis Rufin, Sr., the owner and operator of the restaurant and the adjoining .parking lot, and against Rufin’s insurer, National Casualty Company, erroneously sued as National Casualty Company of Detroit. She prayed for solidary judgment against the two defendants in the sum of $25,168.80.

She charged that the accident resulted from the negligence of Rufin in that the parking lot was poorly lighted and in that Rufin permitted a large hole, filled with water,' to ‘remain in the surface of the lot, with the result that, being unable to see the , hole ■ because of the darkness, she stepped into it and fell to the ground, sustaining a fracture of her right hip.

Defendants admitted the occurrence of the accident and that the restaurant and parking lot are operated by defendant, Rufin, but they denied all liability to plaintiff, denying in particular that the parking lot was poorly lighted, and averring that plaintiff’s accident was caused by her own negligence in failing to observe and avoid the hole into which she stepped. In the alternative that it should appear that there was any negligence on the part of defendant, Rufin, then defendants alleged that the accident resulted from the contributory negligence of plaintiff herself as above set forth.

After an extended trial in the district court, there was judgment dismissing plaintiff’s suit, and she has appealed.

The record shows that on the Sunday night in question the plaintiff arrived at the establishment at about seven or seven-thirty o’clock in an automobile owned and driven by Charles M. Ives. In the car also were Mrs. Ives, their two children, and Mrs. Ives’ mother, Mrs. Charles A. Butler. The car was parked in the parking lot under or near a tree, and the entire party walked across the lot and entered the restaurant. Some time later they left the restaurant to return to the automobile, and just before Mrs. Byrnes reached the automobile the accident occurred.

The parking lot was surfaced with clam shells, and the record ■ shows that the owner, Rufin, had contracted with a paving contractor to pave the surface of the lot with “blacktop”, but that the paving contractor, having found it impossible to devote the necessary time to it as promptly as Rufin desired, had dragged or scraped the lot on various occasions in an- effort to keep it in proper condition, and that the last scraping or dragging had been performed about three days before the occurrence of the accident. This last scraping had been done on Thanksgiving Day, which was the preceding Thursday, and the accident .occurred on Sunday night, or, as we have said, three days later.

Plaintiff makes two charges of negligence: (1) That Rufin was at fault in allowing the hole to remain in the surface of the lot, and (2) that the lot was improperly lighted.

It is obvious, of course, that there is no duty in the operator of such a lot to maintain its surface absolutely smooth. It must be recognized that in such a surface there are always depressions or indentations, and therefore it cannot be said that it is negligence to allow such indentations to remain so long, as they are only such as may be expected in such a place. Plaintiff, however, asserts that this particular hole was about five inches deep and was three or four feet long and two feet or so in width. Defendants did not attempt to. prove the exact depth of the hole at its deepest point, though Albert Rufin, who was on duty at the time, says that it was “maybe about 2 inches deep.”

Mr. Ives, testifying as a witness for plaintiff, says that it was “perhaps four or five inches in depth in the center”, though he says that there was water in it and that he did not measure it, and he added: “ * * * it is impossible to determine the depth of the hole covered with water.”

Mrs. Ives said: “I imagine it was about 4 inches deep, because it was covered with water and I don’t know the exact depth.” She said that she had seen the hole when she and the children got out of the car to go into the restaurant. She said that the children “have very bad eyesight and I am always on the lookout for them.”

Emile Rufin, who says that he “runs” the place, said that the hole “looked like an area three or four feet long and two or three feet wide, with a small amount of water in it. He said that he was not in position to say how deep it was.

Amato, one df the employees of defendant Rufin, says that he couldn’t say how deep the hole was, but he described it as a water puddle about three to four feet long, about two feet wide and sloping down towards the center.

There is no doubt at all that there had been considerable rainfall either on that day or the preceding day, and there is no doubt too that in such a surface of crushed shells there are bound to be depressions or indentations in which, water will remain-after a substantial amount of rain has fallen.

We conclude, from all of the testimony concerning the description of the hole, that it was not sharply defined in the sense that there was a precipitous drop to its bottom, and that it was merely a depression in the surface. In fact, this is conceded by all of the witnesses, most of whom referred to it as a depression or as an indentation, or as a water puddle.

It is true that one of the employees of defendant Rufin, the witness Amato, to whom we have already referred, is said to have remarked: “The lady has fallen. That’s a shame. They had contracted to have this repaired.” However, we do not see in this remark any statement that he recognized the hole as being dangerous. He merely expressed the view that it was unfortunate that the lady had stepped into the water, and that he knew that the owner of the establishment had made a contract with the paving contractor to substitute for the shell surface the blacktop surface, and that this contract had not, at that time, been carried out.

In determining what is a defect in a sidewalk, or a store aisle, or a parking lot, we must take into consideration the nature of the establishment, and we must undertake to determine just what type of surface the user would have the right to expect. A person walking through a store is justified in assuming that the floor is level and smooth. But where a person walks in a parking lot, surfaced with shells, it must be realized that that surface will have indentations and depressions, and the person using it must exercise such care as may be required in the use of such a surface, and we do not see that it can be said to be actionable negligence of the owner of such a surface to allow indentations such as that which is indicated by the evidence here, to remain.

In White v. City of Alexandria, 216 La. 308, 43 So.2d 618, the Supreme Court, as expressed in syllabus No. 3, said: “A pedestrian is entitled to assume that the sidewalks are not dangerous and is not required constantly to observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle, but he must exercise ordinary care when using the sidewalk, having in mind that there exist irregularities in the walks brought about by natural causes such as rains, expension, soil erosion and tree roots.”

In a very recent case, Massicot v. City of New Orleans, La.App., 43 So.2d 621, 622, we quoted from White v. City of Alexandria, supra, and said: “‘For determining what is a dangerous defect in a sidewalk (that which renders the municipality responsible in damages to a pedestrian injured as a consequence thereof) there is no fixed rule; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question of whether or not the walk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence.’ ”

Our conclusion is that there was no actionable negligence insofar as the surface of the lot was concerned and that plaintiff, had she used such care as should have been used by an ordinarily prudent person walking on such a surface, would not have stepped into the hole.

Plaintiff sought to show that the lot was very dimly lighted, and that defendant intentionally failed to properly illuminate it because he knew that his establishment was much frequented by young persons who desired to remain in their automobiles and who did not wish to be recognized by patrons in other cars. There is practically no evidence to support this contention, though there is much evidence touching on the lighting conditions in and surrounding the parking lot.

Though counsel for plaintiff, in oral argument, sought to convince us that the lot was shrouded in total darkness, a study of the evidence convinces us that that is not the situation, and that there was sufficient light for a person using ordinary care to see the ground and to discover the unevenness of the surface, and to see that there was water in the hole in which plaintiff walked, and that plaintiff could have discovered it had she herself exercised ordinary care.

It is true that the only illumination provided by Kufin came from fluorescent or Neon lights along the side of the building, but in addition to these lights there was a large overhead city light on the neutral ground on the nearest edge. The tree under or near which the automobile was parked is located apparently forty or fifty feet from the side of the building and not more than forty or fifty feet from the front sidewalk, so that it was not more than seventy or eighty feet from the city light, which was on the nearest side of the neutral ground.

Although some of the witnesses undertake to say that' the illumination was extremely poor, there is much evidence to the effect that the light which was provided was adequate for the reading o,f menus by persons in their cars, and was sufficient for the attendants or employees of the restaurant to write order-slips while standing in the yard.

Plaintiff herself was unwilling to say that the lot was shrouded in Stygian darkness. Counsel for defendants, on cross-examination, suggested to her: “When you got out the automobile there was no artificial illumination there, no lights at all? It was pitch dark?” But she answered: “It wasn’t pitch dark. There was a light that did show in the park from the restaurant.” A little later counsel suggested to her that she knew that “the yard was poorly lighted”, and that she “couldn’t see the ground.” She answered that it was poorly lighted, but she added: “I saw the others go ahead and not fall and I.walked behind them * *

Mr. Ives said that it was “very dark”. Mrs, Ives was asked about the lights and she said-: “Well, it was nighttime and you couldn’t see very much, I didn’t pay any attention coming back.” Again counsel attempted to have her say that the lot was poorly lighted, but her answer was: “It wasn’t bright, no.”

It must be remembered too.-that Mrs. Ives noticed the hole on going into the res-, taurant at about seven or seven-thirty o’clock. Counsel contends that at that time night had not fallen, but we do not need evidence to prove that on November 28, at seven or seven-thirty, night has completely fallen.

Mrs. Butler, another witness for plaintiff, when asked about the light, said, “Well, they are not very good. The lights are not good at all.”

However, as we have already said, there is other evidence to the effect that patrons could read menus, and that attendants could write orders by such lights as were provided.

Amato, the witness already referred to, when asked about the light, said, “They were good.” He also said that “directly across is a street light, a large light; then we have on the side of the building a Neon light.” He was asked how he knew that he could read a menu there, and he said: “I have tried it.” He added that he had stood “right on the spot where the accident occurred,” and that standing there by the same light he could read a menu easily.

Albert Rufin said that when he was told about the accident he went into the lot to investigate and that the Neon tubing on that side was lit. He was asked whether that tubing showed “very much light” and he answered, “Yes, sir; very much.” He added that the light from the neutral ground did not shine entirely to the rear of the lot, but that it gave light “enough so you can walk and see anywhere you want to go.”

Emile Rufin said: “There was a big light outside of the building from the street— a city light, and they have illumination from the building from a neon tubing.”

Had the District Judge found for plaintiff, that is to say, had he reached the conclusion that there was' not sufficient light or that the so-called hole was of a dangerous nature, we would not have found justification for a reversal, but since, on the contrary, he obviously found that there was sufficient light and that the hole was'not of a dangerous nature, we conclude that the record does not convince us that he was manifestly in error.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    GRAFFAGNINI et al. v. GEORGE ENGINE CO., Inc., et al.
    No. 19340.
    Court of Appeal of Louisiana. Orleans.
    March 27, 1950.

      John D. Schilleci, Jorda S. Derbes, New Orleans, for plaintiffs-appellants.
    Edward Rightor, William H. Sellers, New Orleans, for George Engine Co., Inc., defendant-appellant.
   JANVIER, Judge.

On the evening of November 18, 1947, at about 10 o’clock, there was a collision between two automobiles near the intersection of Hibernia Avenue and Vermillion Street, in New Orleans. One of the cars was owned and driven by Vincent Graffag-nini and occupied by himself and his wife. The other car was owned and driven by Preston Martin, and with him in the car was William Lee. Both Martin and Lee were employees of George Engine Company, Inc. The automobile of Graffagnini was damaged and Mrs. Graffagnini sustained physical injuries.

Mr.- and Mrs. Graffagnini brought this suit for damages, praying for solidary judgment against Martin and George Engine Company, Inc., alleging that the accident resulted from negligence of Martin, and that at the time Martin, in driving the automobile, was acting within the course and scope of his employment by George Engine Company, Inc.

Martin filed various exceptions and then an answer in which he denied all negligence on his part and averred that the accident was caused by various acts of negligence on the part of Mr. and Mrs. Graffag-nini. We charged that Mrs. Graffagnini was at fault in not cautioning Graffagnini “to get over to the proper side of the road and to keep a proper lookout.” In the alternative that it should appear that Martin was in any way at fault, he averred that the proximate cause of the accident was the contributory negligence of Graffagnini and Mrs. Graffagnini. Martin then assumed the position of plaintiff in recon-vention, alleged that the accident had been caused by the negligence of Graffagnini and Mrs. Graffagnini, and prayed for soli-dary judgment against them in the sum of $1,0,50 for physical injuries sustained by him and the cost of repairing his automobile.

George Engine Company, Inc., denied all negligence on the part of Martin and especially denied that at the time of the accident Martin was acting within the scope of his employment.

In the Civil District Court for the Parish of Orleans, there was judgment in .favor of Graffagnini against Martin for $200, and in favor of Mrs. Graffagnini against Martin for $2,500, and rejecting the recon-ventional demand of Martin. There was also judgment in favor of George Engine Company, Inc., dismissing the suit of plaintiffs as against that defendant. Mr. and Mrs. Graffagnini have appealed from, the judgment but only insofar as it dismisses their suit as against George Engine Company, Inc. Martin has not appealed.

Since the District Judge held Martin liable to the plaintiffs and yet dismissed the suit as against George Engine Company, Inc., it is obvious that he felt that the record showed that, at the time of the occurrence, Martin was not acting within the scope or course of his employment by George Engine Company, Inc. We therefore deem it advisable to first investigate that phase of the matter since, if Martin was not acting within the course and scope of his employment, it would follow that regardless of the extent or seriousness of his fault, the George Engine Company, Inc., would not be liable to plaintiffs.

The George Engine Company, Inc., is the distributing agent for a certain motor, used extensively in commerce and it maintains a shop for the servicing and repairing of those and other motors. Its place of business is at No. 1111 Jefferson Highway, which is in the Parish of Jefferson near the upper limits of the City of New Orleans. Preston Martin, who was driving his own car, lives at 3727 D’Hemecourt Street, in New Orleans, which is “In the Carrollton section, Midcity.” Lee, the other occupant of the Martin car, lives “in the Eighth or Ninth Ward” of New Orleans, “near Pontchartrain Beach.” These three locations are important to an understanding of the contentions of the parties.

On the morning of the day on which, at night, the accident occurred, Martin and Lee had been sent to Lockport, Louisiana, to repair a motor and had gone in Martin’s car since there was no company car available. They had been dispatched on that trip by Thomas Martin who was Preston Martin’s brother and who was assistant service manager of George Engine Company, Inc. They were unable t'o complete the job in one day and had left Lockport at about 7:00 or 7:30 at night to return to New Orleans. Before reaching New Orleans, Lee, the other employee, became ill. He says that he was “just sick at my stomach, just felt sick.” Instead of going back to the plant of the Engine Company, Martin and Lee stopped at a barroom or restaurant located about a block across the highway from the Engine Company and there Martin met his brother, Thomas, who, as assistant service manager, had, on that morning, given them the orders requiring them to go to Lockport. Both Thomas and his brother Preston say that Preston told Thomas that he was “checking out”, and would not return to the defendant’s place of business that night. After a short stop, Preston Martin and Lee left this barroom or restaurant and, without stopping at the plant of the Engine Company and without going to the residence of Preston Martin, went considerably farther than both and had almost reached the residence of Lee when the accident occurred.

The sole question presented on this phase of the case is whether under these circumstances Martin was still acting within the scope of his employment at the time of the accident.

The record leaves no doubt at all that it was quite customary for employees, when returning at night or after regular working hours, if they lived in locations which made it advantageous for them to go directly home, to do so and then to “check out” either by ’phone or by reporting the next day as to their time of stopping work and as to the mileage they had covered on the preceding day.

It is very evident also that where an employee used his own car, he was allowed mileage for the use of the car, but that the company maintained a “board” on which it posted the various distances to nearby points at which it frequently had work and that it used these distances to determine whether the mileages claimed by the employees were approximately correct. It appears that this was done both for the protection of the company against claims for excessive mileage by the employees and for the protection of the customers against excessive charges.

It appears that there was no duty in Martin to return Lee to his residence, unless it can be said that because of Lee’s sickness he should have done so from a “humanitarian” standpoint. Lee says that in going to and from work, it was usual for him to “catch a ride with some of the fellows living out that way, or either ride the bus.” Martin says that on occasions when he had other employees with him, when the day’s work had ended, he took them home if he felt like it.

There is one circumstance which is pointed to by plaintiffs as evidencing the fact that Martin was acting within the scope of his employment. He, Martin, sustaining injuries himself and the employer, George Engine Company, Inc., apparently before a complete investigation had been made, referred him to the Insurance Company which carried the Workmen’s Compensation Insurance of the Engine Company. The Insurance Company paid for the medical services rendered to Martin. Of course it was not liable for those services if, at the time at which he sustained his injuries, Martin was not acting within the scope of his employment. The fact that medical services were paid for by the insurer is pointed to by plaintiffs as indicating that Martin was acting within the scope of his employment and as creating an estoppel against defendant to contend that he was not so acting. Counsel .for the defendant, George Engine Company, Inc., however, contend that for two reasons this fact does not have the effect contended for by plaintiffs. First, it is said that no estoppel is created since the legal position of plaintiffs was in no way prejudiced by the fact that the insurer of the Engine Company paid for the medical services rendered to Martin, and second, it is contended that the payment was made as the result of an error both of fact and of law. Counsel for the Engine Company, in their brief, call attention to subsection 5 of section 18 of the Workmen’s Compensation Statute, Act No. 20 of 1914, as amended, Act No. 85 of 1926, which reads as follows: “Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this act.”

They cite the following cases as authority for their contention that if a compensation payment is made as a result of error of fact, the employer is not estopped to contend that no compensation is due, i. e., Johnson v. Provencal Turpentine Co., 12 La.App. 78, 125 So. 321; Doby v. Canulette Shipbuilding Co., La.App., 156 So. 51; Burk v. Gulf Refining Co. of Louisiana, La.App., 171 So. 135.

It is true that though this accident occurred on November 18th, the accident report was not dated until November 21st, and was not sent to the insurer until November 24th, and that during that period the employer' should have been able to obtain full information as to just how and under what circumstances the accident occurred. But it is shown that the employee Martin had stated that the accident had occurred “while coming back from work,” and without a full investigation Martin had been sent to the Company physician.

•Neither the Engine Company nor the Insurance Company made a more complete investigation because it developed that Martin sustained no disabling injury, and therefore no compensation was due him. It appears that the employee who prepared and sent the report to the Insurance Company could not be produced to explain why he had stated that Martin was injured while returning from work. This employee was said to be “at Burbank, California or thereabouts,” and while counsel for defendant, the Engine Company, did not definitely say that he could not be located, that was obviously the purpose of his statement.

Mr. Mercer, the manager of the Claims Department of the Insurance Company said that when he found that no compensation was due, he made no investigation but paid the medical bill because of the statement in the report to the effect that Martin was injured “while coming back from work.” Mr. Mercer said that had he known the actual facts he would not have authorized the payment of that bill.

While there is in the record considerable confusion as to just what actually occurred when Preston Martin met his brother at the restaurant and bar across the highway from the Engine Company’s place of business, there is no room for doubt that there was such a meeting and that at that meeting Preston Martin told his brother who, let us -repeat, as assistant manager of the Engine Company, had sent Martin out on a trip that morning, that he had returned and was “checking out.” If that occurred, and there is nothing to contradict the statement of the two brothers that it did occur, then after that time Preston Martin was acting not as an employee, unless it be that in taking Lee home, he was performing services of his employer.

It is not shown that there were in Martin’s car any tools or equipment of the company, and no other fact is shown except that he was taking Lee home, which, in itself, would not indicate that he was acting within the scope of his employment.

Even if it could be held that because, on certain occasions an employee is allowed mileage to and from his home instead of to and from the place of business of his employer when it is more convenient to go directly home on these occasions, he is acting within the scope of his employment, it cannot be claimed that in the situation which was presented here that rule would have had application, for two reasons — first, the rule could apply only when the employee has not checked out at the place of business, and has gone directly home, and second, because in this case Martin was not returning to his home but was going far beyond it to an entirely different part of the City.

We shall, for the moment, pass the question of whether the fact that Lee was sick throws a different aspect on the situation, and shall discuss several of the cases cited by the parties.

We are much impressed by the reason'ing of our Supreme Court in Maas v. Harvey, 200 La. 736, 8 So.2d 683. There a .salesman was furnished a car by his employer with the understanding that it was to be used in soliciting business for the employer, and that it might be used by the employee for his personal. purposes at other times. While he was using the car to go to a bus station to secure the baggage of some of his personal friends, there occurred an accident which resulted from his negligence. It was sought to hold the employer liable on the theory that when the employee used the car for his personal purposes “there was always: a definite prospect of some profitable contact.” The Supreme Court held that he was not acting within the scope of 'his employment and cited Fox v. City of Syracuse, 231 App.Div. 273, 247 N.Y.S. 429. In the Fox case an employee was furnished an auomobile by his employer, to be used in the business of the employer, but with the privilege of using it for his own purposes. He went on a week-end visit and during that visit, by chance, transacted business for his employer. While driving his car on the return from his week-end visit, he collided with another car and his employer was sued. In the Maas case, the Supreme Court of Louisiana, referring to the Fox case, said [200 La. 736, 8 So.2d 688]: “ * * * The court rejected the demand on the ground that the employee’s visit to the beach was for his own private purpose and pleasure and not for any purpose or with any intention of performing any service for his employer, and that the fact that he incidentally performed a service for his employer, within the scope of his employment, did not make the employer liable for the damages resulting from the collision that occurred when the employee was returning from the beach.”

We construe this as an approval by our Supreme Court of the doctrine that if an employee in such a situation is using the car for his own purposes and merely, by chance; happens to do something which may incidentally benefit his employer, it does not result that he is acting within the course and scope of his employment. That is all that Martin was doing in the case at bar. He was using his own car for his own purpose, and merely, by chance, he was possibly, in a very minor way, benefiting the employer in that 'he was returning a sick employee to his home. We cannot see that it can be said that the employer was interested to such an extent as to justify the conclusion that Martin was acting within the course and scope of his employment.

Counsel for plaintiffs cite Duffy v. Hickey, 151 La. 274, 91 So. 733, 735, as authority for the proposition that whatever an employee does, which may to any extent redound to the benefit of the employee, constitues an act within the scope of employment. In the Duffy case, the employee was a chauffeur employed to operate an automobile for hire. He was given a stand in the business section of New Or-' leans, and was required to return the car to that stand whenever it was. idle. He was not to use the car in going to and from his home for meals. On the occasion which gave rise to the litigation, he terminated a trip very close to his residence, just when it was “supper time.” He decided that (instead of driving the much greater distance to the stand and then going to his residence) it would ‘be best for all concerned for him to drive the much shorter distance to his residence, eat his supper, and then go to his ■ stand. The Supreme Court held'that, under those circumstances, it could be said that he was really acting within the scope of his employment. “ * * * To say that Flem-ming [the employee] was merely going to supper, and therefore was on a mission of ■his own, is to lose sight of the main purpose he had in view.” (Brackets ours.)

We think the situation here is different, for here Martin was operating his own car, he had completed his days’ work, he had checked out, and was on a mission of his own.

In Steinmetz v. Saathoff, Mo.App., 84 S.W.2d 437, an employee was returning his car to his employers’ place of business, with the knowledge of the employer, and in order that it might be used in the employer^ business. The Court held that the employee was acting within the scope of his employment, but we do not see any similarity between that case and the case at bar.

In Krousel v. Thieme, 13 La.App. 680, 128 So. 670, 672, the Court of Appeal for the Second Circuit held an employer liable where the employee was furnished a car by the employer for the purpose of soliciting sales of that or other cars of the employer. The employee had “checked out” in one of his employer’s cars and was on his way home when the accident happened. The defendant himself, however, testified that the employee had the right to sell cars wherever and whenever he could, and the Court said: “It is common knowledge that an automobile salesman, working on commission, has authority to ■ sell cars wherever and whenever he can, whether it be night or day.”

. The Court said that under these circumstances “Nugent [the salesman]'was at the time of the accident as much in the employ of Thieme as he was at any time during the day and that he was acting within the scope of his employment * * (Brackets ours.)

We believe that those facts distinguish this case from the'case at bar, but if they do not, then it appears to us that the decision is contrary to that reached in Fox v. City of Syracuse, supra, which was approved by our Supreme Court in the Maas case.

Counsel for plaintiffs cite several other cases, in each of which there was involved a slight departure from the route which the employee should 'have taken; in other words, a slight deviation. In each of them it was held that the employer might be held liable, even though the employee did not drive the car along the route contemplated by the employer. We do not think that those cases are in point.

We do not see that any importance can be attached to the fact that in the record there are to be found two repair-order cards of the defendant, George Engine Co., Inc., and that on one of these cards there are certain erasures. Counsel for plaintiffs contend that if these erasures had not been made there would have appeared entries which would have shown the mileage covered by Martin on the day in question, and that this mileage would have indicated that the company considered that Martin was in the scope of his employment at the time of the accident. The job on which Martin, had been engaged could not be completed on that day and other employees were sent to complete it on the next day. The entries referred to were made in regard to the mechanics Lee and Martin, and were erased from the card covering their services. Other entries were made on the card covering the services furnished by Robin and Lyon. This may not be the explanation of the erasures, but whether it is or not the correct explanation, we cannot attach to them sufficient significance to overcome all of the positive evidence which' we find in the record.

Lee’s illness was not serious. He himself said that “he just felt sick.” Martin’s testimony convinces us that it was not because of this illness that he was driving Lee •home. He said that on other occasions he had driven employees home whenever he had time and felt like it, and it is quite obvious that on this occasion he was driving Lee home just because it was late and that Lee’s illness was not the primary cause. We think it quite apparent that it was of no great concern to the employer that Lee be driven to his home.

Our conclusion is that, at the time of the accident, Martin was not acting within the scope of his employment; consequently, there is no liability in the defendant, George Engine Co., Inc.

Accordingly, the judgment appealed from is affirmed at the cost of appellants.

Affirmed.


author: REGAN, Judge.

text:
    RIVERO v. LEAVEAU et al.
    No. 19403.
    Court of Appeal of Louisiana. Orleans.
    March 27, 1950.
    Ernest A. Carrere, Jr., and Edward F. Stauss, Jr., New Orleans, for appellants.
    William J. Guste and James M. Colomb, Jr., New Orleans, for appellee.
   REGAN, Judge.

Plaintiff, Jules Rivero, an employee, brought this suit under the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, against his employers, N. V. Leaveau and V. A. Leaveau, doing business under the trade name of Liberty Welding & Iron Works, and their compensation Insurer, The Western Casualty & Surety Company, in which suit the plaintiff alleged that he was permanently and totally disabled as of January 6, 1948, while employed by Liberty Welding & Iron Works.

The defendants answered denying plaintiff’s claim for compensation on the ground that plaintiff did not sustain an accident in the scope and course of his employment and, in the alternative, pleaded that plaintiff was also simultaneously an employee of the New Orleans Brewing Company, Inc., and, therefore the New Orleans Brewing Company, Inc., should be made a party to this suit and ultimately be forced to contribute towards any judgment of compensation rendered. An order impleading the New Orleans Brewing Company, Inc., was issued by the lower court, to which order the New Orleans Brewing Company, Inc., filed exceptions of no right or cause of action and the court, a qua, properly dismissed the New Orleans Brewing Company, Inc. as a party defendant to these proceedings.

After a trial on the merits judgment was rendered in favor of plaintiff and against the defendants condemning the defendants to pay unto plaintiff compensation in the sum of $20.00 per week for a period not to exceed four hundred weeks, commencing January 6, 1948, together with 5% legal interest on all payments due and unpaid and that defendants pay all costs of the proceedings including the expert fees of Drs. Karr, Simon and Battalora, which fee was fixed at $50.00 each. Defendants applied for and were denied a rehearing. From this judgment defendants have prosecuted this appeal and plaintiff has answered the appeal by praying that the judgment be amended to include his medical expenses amounting to $234.59, and that as amended, the judgment be affirmed.

The record reveals that the plaintiff, Jules Rivero, a man of approximately thirty-three years of age, had been employed by the Liberty Welding & Iron Works, Inc., for approximately four and one-half to five years prior to January 6, 1948, the day on which he allegedly was injured and ceased working for defendant, Liberty Welding & Iron Works, Inc. Simultaneous with his employment by defendant he was also employed in the evening as a welder by the New Orleans Brewing Company, Inc., since 1944, but terminated that employment as of December 21, 1947.

On January 6, 1948, plaintiff was welding ammonia coils weighing, according to the divergence of opinion, from fifteen hundred to four thousand pounds, which coils were to be used in freezing units, and while they were suspended from a chain hoist, it was nonetheless necessary for plaintiff to push the coils around while so suspended in order that they would be placed in a more advantageous position to facilitate the welding thereof. Moving of the coils obviously required physical effort on the part of the plaintiff. This fact was corroborated by Alvin Canella, a fellow-employee, and by V. A. Leaveau, one of the partners in the Welding Company. Shortly before noon on January. 6, 1948, plaintiff suffered, what he described and which defendants have denied, a severe pain in his back, the intensity of which caused him to immediately cease work, and leave his shield and gloves where they were. He secured a ride from defendant’s place of business to the street car from Canella, who testified that plaintiff ceased work at noon because h-is back was hurting him.

There is no evidence in the record that plaintiff ever reported an accident or any unusual ocurrence to any office employee of defendant nor did he complain of any accident or any unusual occurrence on the said date to Leaveau. After returning to his home these severe pains persisted and, on January 7, 1948, plaintiff called his family physician, Dr. Alex M. Powe, who treated plaintiff at home, but when the severity of the pain continued, hospitalization was prescribed and, on January 14, 1948, plaintiff was admitted to the Lakeshore Hospital, where he remained until January 26, 1948. X-rays were taken of plaintiff’s back which disclosed an injury between the first and fourth lumbar vertebrae. Other medication was administered at this time which did not appreciably alleviate the pain.

Dr. Powe testified that he practiced primarily, obstetrics and gynecology, but that he had treated plaintiff for pains in his back on October 2nd and 18th, 1946, and at that time he was of the opinion that plaintiff’s trouble was a sacro-iliac condition. He admitted, however, that he was incompetent to diagnose a disc herniation since orthopedics are outside of his field. Pie further testified that plaintiff had told him that the pain in his back on January 6, 1948, had occurred rather suddenly while he was working, which necessitated his abrupt termination of his work for that day.

On or about February 2, 1948, defendants communicated with plaintiff to determine why'he had been absent from his employment and he replied that he was having some difficulty with his back and that the cause was unknown to him. Defendant then, as is customary and usual, forwarded to its compensation insurer, a formal accident report. In the report no reference is made to any accident and the cause of plaintiff’s alleged injury is shown as being unknown.

Mr. Alvin de la'Houssaye, at that time employed as an adjuster for Western Casualty & Surety Company, called upon plaintiff who explained to de la Houssaye that he did not know of any specific accident which he had while in defendant’s employ, de la Houssaye reduced plaintiff’s statements to writing. This statement is in the handwriting of de la Houssaye and is signed by plaintiff.

On February 23, 1948, de la Houssaye referred plaintiff to Dr. George C. Battalora, who examined plaintiff and discussed with him his case history. This discussion was likewise reduced to writing. In this statement there was no mention by plaintiff of the happening of an unexpected or unforeseen event or of .any sudden or violent action which manifested objective symptoms relative to an injury by an accident. Dr. Battalora diagnosed plaintiff’s ailment as intervertebral disc herniation, and he was of the opinion that the majority of ruptured discs are the result of heavy lifting particularly in an awkward position.

Plaintiff, according to his testimony, remained in a state of continuous severe pain which subjectively appeared to grow worse as time progressed, and he then called upon his miele, Dr. H. Theodore Simon, an orthopedic surgeon, who diagnosed plaintiff’s back ailment as acute sciatic syndrome due to an intervertebral disc injury in the lower lumbar vertebrae, and, in his opinion, the rupture of the disc occurred while plaintiff was working on January 6, 1948. Dr. Simon arranged for plaintiff’s admission to Charity Hospital in the City of New Orleans on April 4, 1948, where conservative treatment was administered in the form of traction to both lower extremities in an effort to obviate the necessity of an operation. The treatment was unsuccessful and plaintiff was, thereafter, referred to Dr. Howard Karr, another orthopedic surgeon, who, on April 30th, 1948, performed a lam-inectomy on plaintiff’s spine and during the course of the operation found a ruptured inter-vertebral disc with extreme protrusion of the disc into the spinal canal which was, of course, removed. Dr. Karr was of the opinion that ruptured discs are usually associated with lifting and that plaintiff gave him a history of lifting objects during the course of his employment, but no date of injury or trauma was incorporated in his case history. Ten days after the operation was performed plaintiff was discharged from the hospital, but was readmitted again on May 14, 1948, because of incessant back pain and spasms of the paraspinal muscles. In order to relieve plaintiff’s pain he was placed in a plaster jacket on May 25, 1948, and, on June 8, 1948, he was discharged from the hospital in a cast and he was still under the treatment of Dr. Simon, wearing a steel brace, and unable to perform any physical labor, at the time of the trial of this matter in the court, a qua.

Plaintiff testified that, at the insistent suggestion of Dr. Aecardo of Charity Hospital, he attempted to perform light labor, but that he experienced such intense pain that he terminated these efforts. Plaintiff reported the result of his efforts to Charity Hospital Service and was advised by them not to do any more work.

Defendants contend that the history of plaintiff shows that he sustained no com-pensable accident; that the disc herniation which he eventually suffered was a long standing condition which was not caused or activated by any event occurring during his employment by defendant, Liberty Welding & Iron Works, and he had no accident while working for the said company and, therefore, is not entitled to compensation under our jurisprudence.

Plaintiff maintains in opposition thereto that there was no accident in the sense that plaintiff was struck by something or that he stumbled or fell, but that an accident within the meaning of the Workmen’s Compensation Law means also a giving way of any portion of the laborer’s body while át work.

The question posed by virtue of the pleadings and evidence adduced herein is whether the plaintiff was injured as a result of an accident within the scope and meaning of the Louisiana Workmén’s Compensation Act?

We have been impressed by the excellency and intellectual integrity of both briefs filed herein, by counsel for the respective litigants and we feel that they justly deserve to be complimented by this Court.

At the inception of this opinion, it might be well to emphasize that there is no dispute between counsel for plaintiff and defendants that plaintiff did sustain a disc herniation.

The Legislature of Louisiana incorporated the following definition of an “accident” in the Workmen’s Compensation . Act: “The word ‘Accident,’ as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening, suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” Act No. 20 of 1914, § 38, as amended by Act No. 38 of 1918.

We conclude from the evidence contained in the record, that plaintiff had suffered from October, 1946, to the date of the alleged accident, January 6, 1948, with pains in his back and we are, therefore, confronted with the specific and more fundamental question of whether this case possesses the legal requirements (as evidenced by the philosophy of our compensation jurisprudence) necessary to constitute an accident and injury which is compensable, where, admittedly, heavy lifting or other strenuous efforts, although usual and customary in the trade, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.

Counsel for defendants lay great stress on the following statement which was secured by de la Houssaye, from plaintiff, on February 9, 1948, which we quote:

“Sometime in the early part of 1946, I started having trouble with, my back. I would feel pain and ache in the lower part of my back — this would pass from 2 days to a week at a time, then the pain would go away of its own accord * * *.

“X-rays were taken by Drs. Menville and Ane, and I do not think that they found anything wrong then — this pain continued through the year 1947 and caused me , to lose some time from work. Finally> •on Jammy 6,1948,1 was farced to leave work (while on the fob at Liberty Welding) in the middle of the day. The pain and discomfort was so bad that I couldn’t continue working. T have not been back to work to either place, since. ,'

“The Doctor (Dr. Powe), January IS, 1948, told me that I must have hurt myself. I cannot say how, when or where this injury occurred. It,' could have resulted from heavy lifting during the last two years, while working either for Liberty Welding or New Orleans Brewery: My job at New Orleans Brewery was the same as that at Liberty Welding, and I had to lift and remove heavy pieces there just as I do at Liberty Welding & Iron Works. I cannot recall any particular occasion when I felt pain or felt anything pull loose, after lifting.” (Italics ours)

Counsel for defendants further contend that plaintiff repudiated this statement when he testified at the trial of this matter that shortly before noon on January 6th, 1948, while he was trying to shove a coil from a crouching position he suddenly suffered such pain in his back that he could work no longer. However, a reading of this statement together with the testimony on behalf of plaintiff, adduced in the trial court, in our opinion, resolves the apparent conflict of plaintiff’s obvious misconception of the definition and elasticity of the word “accident” under our jurisprudence. There was no injury in the sense in which the word “accident” is usually understood by laymen, as involving violent, unforeseen and undesigned contact with an animate or inanimate obj ect or that he fell and thereby injured his back.

It is our opinion, that, unknown to plaintiff, on January 6, 1948, he suffered a ruptured intervertebral disc. ■ All that plaintiff was cognizant of at this time was that the pain in his back was more intense and excruciating than he had ever experienced heretofore.

This Court decided a case analogous to the one which we are presently considering, which involved a signed statement by the plaintiff together with a back injury, in 1938. Crouchet v. George H. Leidenheimer Baking Co., La.App., 184 So. 60S, 606 and we quote therefrom:

“J. K. Drury testified that he obtained a statement from Crouchet which he composed for him ‘in the usual manner of an insurance adjuster’ by which he meant to say that though written by him it was read back to Crouchet before he was asked to sign it. In this statement Crouchet is quoted as saying: ‘When I injured my back on April 6, 1937, I don’t know whether I had an accident which hurt my back on April 6, 1937, but it had been hurting me since I was injured in 1935 and I couldn’t work after April 6th, 1937’. ■

“The records of the Charity Hospital show that plaintiff was first treated by that institution on May 10th, 1932, for a strained back, and that he continued to receive treatments, at intervals up to December 13, 1937, chiefly for his back, but sometimes for other ailments. On November 19, 1934, when he was first referred to Dr. Fenner, the following notation appears in the records: T find no sacro-iliac signs. He is wearing a pelvic belt. I order salicy-lates.’ Plaintiff’s back is not again referred to in the hospital record until April 14, 1937, when the following notation appears: ‘Treated in Acc. Room 4 — 8—37. Sprain lower back, strapped. To return for observation.’

“Defendant insists that upon this record there is no evidence of any accident having occurred in the course of plaintiff’s employment and, in the sense in which the word ‘accident’ is usually understood as involving violent contact with an inanimate object, no accident is shown to have happened. We believe, however, that the evidence sufficiently demonstrates that on April 6th, 1937, plaintiff sprained or strained his back while in the employ of the defendant bakery. It also appears that in the performance of his duties he was required to stoop over and it may have been that by reason of some sudden movement his back was injured or some previously existing weakness or malady in that region aggravated. Be that as it may, we are convinced that plaintiff was accidentally disabled in the course of his employment. He is, according to the testimony of two doctors, suffering from a sacro-iliac disturbance. It is true that Dr. Ficklen does not agree with these doctors, but without making any invidious distinction, we observe that the preponderance of the medical testimony is opposed to Dr. Ficklen’s opinion. We believe that the plaintiff should recover.”

The interesting lay and medical evidence which has been adduced herein indicates that there was no “accident” within the literal definition of the word or in the sense thereof; i. e,, that plaintiff was struck or inadvertently injured by some animate or inanimate object; or that he suffered an “accident” in any of the other usual, ordinary and accepted ways in which we commonly associate our ideas of an accident.

In view of the language used and the conclusions reached in the case of Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625, 626, decided by the Supreme Court in 1946, it appears that the jurisprudence is well settled with respect to the fact that an “accident” within the meaning of the Workmen’s Compensation Law is interpreted to be the giving way of any portion of the laborer’s body while engaged in his work. In that ease it was said; — “Since this case does not involve an accident causing external injuries or producing objective symptoms, we must look to the testimony of the medical experts to determine whether this is one of those cases that comes within our well-settled jurisprudence that the legal requirements are present to constitute an accident and an injury is compensable where excessive heat, heavy lifting or other strenuous efforts, although usual and customary, cause or con-'; tribute to a physical breakdown or acceler- ' ate its occurrence becahse of a pre-exist-' ing condition. See, Craft v. Gulf Lumber Co., 151 La. 281, 91 So. 736; Hicks v. Meridian Lumber Co., 152 La. 975, 94 So. 903; Jackson v. Travelers’ Ins. Co., 180 La. 43, 156 So. 169; Wright v. Louisiana Ice & Utilities Co., 19 La.App. 173, 138 So. 450; Richey v. Union Paving Co., La.App., 151 So. 657; Brister v. Miller, La.App., 178 So. 284; Ozbolt v. Weber-Kind Mfg. Co., La.App., 193 So. 383; and Murray v. Mengel Co., La.App., 9 So.2d 818”.

In O’Connor v. American Automobile Insurance Co., 32 So.2d 624, 628, the Court of Appeal for the Second Circuit said:— “It is well settled in our jurisprudence that the protection accorded by the compensation Act of Louisiana against injury by accident comprehends and includes the giving way of affected parts of the body while at work, even though the disability was not the immediate result of an unusual strain or physical effort. Hill v. J. B. Beaird Corp., La.App., 19 So.2d 295 and cases therein cited.”

In Stiles v. International Paper Co., 39 So.2d 635, 636, we find:—

“We think the Court erred in maintaining defendant’s exception. The direct question here involved was discussed in the opinion of this Court in Dortch v. Louisiana Central Lumber Co., La.App., 30 So.2d 792, 796, in the course of which Judge Taliaferro made the following observation:

“ .‘It is now well settled that to constitute an accident within the meaning of the-Workmen’s Compensation Law in cases where the work of the claimant entails regularly heavy physical effort, it is not necessary that the injury from which disability follows be the result of unusual physical effort. If a diseased organ gives way while the laborer is performing his usual- and customary heavy duties, and disability results, it is compensable. * * *’ ”.

We are convinced that the evidence indicates that even though plaintiff, prior to January 6, 1948, had, on various occasions, suffered as a result of some defective spinal condition, it was on that day and whilé he was at work that this condition became so acute that he could not thereafter perform the duties of his employment.

It is, therefore, unimportant whether he sustained the complete rupture at that time or whether his previous defective spinal condition came to a focus at that time as a result of the work which he was doing. In either event there is liability in defendants.

'Counsel for both plaintiff and defendants orally informed this Court that it was. agreed and we find the stipulation hr the record, that plaintiff 'incurred medical expenses amounting to $234.59, and that, therefore, any award in favor of plaintiff and against defendants should include this item of damage. The court, a qua, through inadvertence omitted this item from its judgment and plaintiff has answered the appeal requesting that the aforementioned amount be included in the judgment of this -court, consequently, and

For the reasons assigned the judgment appealed from is amended by allowing to plaintiff, Jules Rivero, the sum of $234.59, and, as thus amended, it is affirmed.

Amended and affirmed.


author: ELLIS, Judge.

text:
    ROBIN v. BRANDIN et al.
    No. 3238.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.

      Indest & Becker, New Orleans, D. J. Barranger, Covington, for appellant.

      Henriques & Mayo, New Orleans, Benj. W. Miller, Bogalusa, for appellee.
   ELLIS, Judge.

The plaintiff brought this suit against the defendant and his insurer in which he is seeking recovery of compensation for permanent and .total disability as the result of an- alleged accident on December 25, 1946. In the alternative plaintiff alleged that should the Court find that its claim does not come under the Workmen’s Compensation Law, Act No-. 20 of 1914, as amended, that he is entitled to damages under Article 2315, C.C.

In their answer, the defendants denied that the defendant Brandin was engaged in a hazardous business but admitted that he was the owner and operator of the Audubon Hotel at Mandeville, Louisiana. It is admitted that the defendant insurance company had issued a policy of insurance to the defendant Brandin under the Workmen’s Compensation Act of Louisiana. Defendants denied that the plaintiff was employed at $25.00 per week but admit that he was employed as a handyman at $5.00 per week, and, in addition, received board and lodging which amounted to $7.25 per week. Defendants also denied that plaintiff was toally and permanently disabled as a result of the accident and further denied that plaintiff was entitled to damages under his alternative plea, and specifically averred that the accident and injury of the plaintiff was the result of the misconduct and intoxication of plaintiff and his disobedience of orders.

It is further admitted by the defendants that certain compensation payments were made to the plaintiff through error and the insurance company has filed a reconventional demand seeking the recovery of the amount of the payments and the amount expended for medical, hospital and surgical bills in behalf of plaintiff.

The case was duly tried and judgment rendered in favor of the defendants dismissing the suit of the plaintiff at his cost, and further judgment on the reconventional demand in favor of the defendant, New Amsterdam Casualty Company, and against the' plaintiff and • defendant in reconvention in the amount of $826.36. It is from this judgment that the plaintiff has appealed.

The testimony shows that the defendant Brandin operated a small hotel and rooming house in the town of Mandeville, Louisiana, known as the Audubon Hotel, and that the plaintiff, Robin, an uncle of the defendant Brandin’s wife, was engaged: as a handy man around this hotel. It is shown that the plaintiff made some repairs, did some painting, built a child’s play house in the yard,-and he also put in fresh light bulbs when they burned out and remained at the hotel when the defendant Brandin and his wife were away in order to register any guests who might arrive. While the defendant Brandin denied that plaintiff’s duties required him to do anything except remain at the desk in their absence and that any painting or repair work done by the plaintiff was voluntary,-we are not impressed with this testimony.

In connection with the operation- of the hotel, the defendant Brandin owned an automobile which he used in obtaining groceries and supplies when necessary and also for the personal use of himself and his wife. It is also shown that this automobile might have been used on a few occasions to transport guests to and from the bus station which was a distance of some eight blocks from the hotel. The transporting of the guests was done as an accommodation and there was no charge made. Defendant also maintained a small electric sign which contained two electric light bulbs in front of his hotel and the bulbs would burn out approximately every fifteen days and the plaintiff would screw in new bulbs.

It appears that on the afternoon of December 25,- 1946 the defendant Brandin wished to change a bulb in the sign in front of the hotel and, accordingly, backed his automobile under the sign and placed a ladder upright from the trunk of the car to the frame which held the lights; that after he had put the trunk lid down and tried it so as to jam the bottom of the ladder to prevent it from slipping back, he went back into the hotel to get the light bulb. He testified that he told the plaintiff twice not to climb the ladder, that he was going to put the bulb in himself as the plaintiff was intoxicated, and while the defendant Brandin was inside obtaining the light bulb the plaintiff Robin did climb the ladder and fell and received injuries for which he is attempting to collect in this suit.

The Lower Court found the facts to be practically the same as ■ heretofore outlined and held that the defendant Brandin was not operating a hazardous business. As to the use of the car in connection with the operation of the hotel, the District Court said: “Certainly the limited manner in which he used this car in connection with the business could not consider the operation of the hotel in this case to be classified as a hazardous business. Particularly is this true where it is shown that the plaintiff’s work was in nowise connected with said automobile. * * * ”

The Lower Court relied upon the case of Gallien v. Judge, La.App., 28 So.2d 101; McAllister v. Peoples Homestead & Savings Association, La.App., 171 So. 130, and LaFleur v. Johnson, La.App., 37 So. 2d 869.

There is no dispute that the operation of a hotel is not designated in the Workmen’s Compensation Act as a hazardous business, but it is possible for the operation to be hazardous if in connection therewith certain motors, machines, elevators, etc., are essential in the conduct of the business. Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303. If it be conceded that the use of the automobile in connection with the operation of the Hotel rendered the defendant’s business hazardous in this respect, it is also well settled that the plaintiff, in order to recover must show that his services were connected with the hazardous part of the. business. Gallien v. Judge, supra; McAllister v. Peoples Homestead and Savings Ass’n, supra; Richardson v. American Employees Insurance Co., La.App., 31 So.2d 527; Haddad v. Commercial Motors Truck Co., 146 La. 897, 84 So. 197, 9 A.L.R. 1380; Collins v. Spielman, 200 La. 586, 8 So.2d 608.

Under the facts in this case the plaintiff was not employed to nor was he required to operate the automobile nor to ride in the automobile. It is shown that on some occasions he rode in the car when1 the defendant Brandin went to buy groceries or supplies, but he did this for his own pleasure as testified to by the defendant Brandin and his wife, and no where in his own testimony did plaintiff state that it was a part of his duties to go in the automobile of to help carry supplies or groceries to or from this automobile. Therefore, if the use of the automobile in connection' with the operation of the hotel might have' rendered this part of the business hazardous, it would not affect the paintiff as his duties were in no wise connected with this hazardous feature.

Counsel for plaintiff contends that the maintenance of the electric sign which hung over the front of the hotel and an electric deep freeze unit was a part of the hotel business and that as the plaintiff took care of this sign by changing the globes regularly this made the business hazardous and plaintiff’s, duties in connection therewith entitled him to recover compensation under the authority of Stockstill v. Sears Roebuck & Co., La.App., 151 So. 822, 823. In the latter case the plaintiff was employed by .the defendant company and among his duties was that of arranging for" display electric refrigerators and delivering and installing same after being sold to customers, and it was while moving or attempting to move one of the refrigerators that he injured his back. The Lower Court sustained an exception of no cause of action,'and on appeal Judge Tal-iaferro as the organ of the Court stated: “One of the hazardous occupations named in section 1, par. (a), subsection 2, of the Workmen’s Compensation Law, as amended, is: ‘The construction, installation, operation, alteration, removal or repair of wires, cables, ■ switchboards or apparatus-charged with electrical current.’ ”

“It is not alleged, and we do not know, what the process of installing one of these refrigerators may include. Counsel for defendant state that it simply consists of moving it close enough to the socket in the wall to- insert the plug at the end of the short cable attached to the refrigerator, and that by doing this the current becomes effective. This may be true as a rule, but it could happen that the electric wiring of the house to some extent would have to be adjusted or rearranged in some respects , to accommodate the refrigerator. It is not improbable that the location of a wall socket would have to be changed to suit the wishes of the housewife, and many more contingencies could arise that would require the handling, moving, and attaching of electric wires in order to install the refrigerator. Some refrigerators are installed in the walls of business houses, meat markets, etc., and considerable labor and material are required to accomplish this. To finally install a refrigerator in place and condition to function, it may be necessary to alter, remove, or repair wires or cables ‘charged with electric current,’ and this line of business is specifically declared hazardous by the act.”

The Court then reversed the District Court and remanded the case for proof.

There is nothing in this record to show that plaintiff ever had to alter, remove or repair wires or cables, “charged with electric current.” He merely screwed a bulb in the socket, and in the Stockstill case it appears that if the plaintiff was only required to insert the plug at the end of the short cable attached to the refrigerator that the ruling would have been different. Therefore, if we concede that the operation of the Audubon Hotel by the defendant Brandin was both hazardous by virtue of the use of the automobile in connection therewith, and non-hazardous, still, the plaintiff’s duties did not require him to come in contact with the hazardous feature of the business, and the operation of the deep freeze unit with which plaintiff had nothing to do, and the maintenance, consisting of the replacing of electric light bulbs in a small sign in front of the hotel did not render that feature of the business hazardous, and plaintiff is, therefore, not entitled to compensation.

The mere fact that the defendant Brandin carried compensation insurance and that the plaintiff was paid compensation in the erroneous belief that he was entitled to it might be a circumstance tending to show that the insurance company believed that his injuries were compensable and that they were liable, but such facts do not estop the defendants from denying any liability under the compensation law when they learned that they were not, in fact, liable.

As to the plaintiff’s right of recovery under Article 2315 of the Civil Code, we are of the opinion that there is no merit in this contention. We agree with the trial judge in his written reasons for judgment wherein he states:

“The plaintiff has set up an alternative plea in which he alleges that should the Court find that he is not entitled to recovery under the Compensation Act, then he is entitled to recover en torte under the provisions of Article 2315 of the Civil Code, as a result of the negligence and want of care in the failure of the defendant, Brandin, to furnish. to the plaintiff a safe place in which to work. It is true that the placing of the ladder in the trunk of the car under the circumstances created a rather unsafe place for anyone to work, but I am satisfied from the testimony that it was never the intention of Brandin that the plaintiff, Robin, was to climb this ladder and install the light in the socket. Brandin states that when Robin came on the scene he. realized that Robin was intoxicated and specifically instructed him not to get on the ladder. • While Robin denied this he admits that Brandin did not tell him to get on the ladder, but says he did it because that was his job. After a careful consideration of all the testimony in this case I am rather inclined to believe that Robin remembered whether Brandin instructed him to stay off the ladder or not, because I am satisfied that Robin was fairly well intoxicated at the time. Not only does the testimony of both Mr. and Mrs. Brandin bear this out, but also the testimony of Dr. Archibald, a disinterested witness, who treated the plaintiff immediately after the accident. It does seem that had Brandin intended that Robin install the light he would have had him make the necessary preparation for the installation, rather than making it himself, and too, the fact that he was going into the hotel to get another light bulb adds weight to his testimony that he intended to install the light and instructed Robin not to get on the ladder. Too, it is reasonable to assume that Bran-din believed from Robin’s intoxication he would fall from the ladder and get hurt. Consequently I am of the opinion that rather than any negligence on the defendant, Brandin’s, part the accident was caused by Robin voluntarily getting on the ladder in an intoxicated condition. * * * ”

In addition, we are of the opinion that this ladder did not slip backwards but slipped to the side and fell. The fact that it was placed in the trunk of the automobile had nothing to do with the ladder moving. Furthermore, there is no doubt that the plaintiff was drinking as testified to by defendant and his wife and the doctor who rendered first aid immediately after the accident. We gained the impression from the doctor’s testimony that it was his opinion that this man was intoxicated. Further, it is shown by the testimony that the defendant Brandin usually held the ladder so that the plaintiff could replace the bulb, and if he had intended for the plaintiff to replace the bulb on the day he was hurt, he would have again held the ladder rather than placing it in the trunk of the car. Also, the plaintiff had no bulb to screw in the socket when he went up the ladder, from which we conclude that there was no intention on the part of Brandin for the plaintiff to climb this ladder, and he wilfully did so in disobedience of definite instructions. The defendant Brandin had, therefore, not provided this place for the plaintiff to work and is not liable under the doctrine that the master must provide a safe place to work. '

As to the recovery by plaintiff in reconvention of $500.00 medical, hospital and surgical bills, the insurance company moved plaintiff, the defendant in recon-vention, from the Charity Hospital where he would have obtained free service, into the Baptist Hospital, a private institution, and it is not entitled to recover for services which the plaintiff would have obtained without charge .except for their action.

As to the compensation erroneously paid in' the sum of $326.36; the defendant insurance company, plaintiff in reconvention, was entitled to a judgment for its recovery.

As amended the judgment is affirmed at defendant’s-appellee’s costs.


text:
    STAR SHOE CO. v. HENDRICKS.
    Mo. 3237.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.

      Ott & Watts, Franklinton, Morgan & Pfeifer, Covington, for appellant.
    Talley & Anthony, Bogalusa, for appel-lee.
   ELLIS, Judge.

The original suit herein was one in which the plaintiff claimed $1741.55 for a certain number of shoes sold to the defendant. The defendant resisted the demand and the record shows that the shoes had been returned to the plaintiff.

The case was duly tried and appealed to the Circuit Court and writs denied by the Supreme Court and the final result was a judgment in favor of the plaintiff for the full amount claimed. See La.App., 40 So'. 2d 36.

We have under consideration an action in which the defendant, a judgment debtor, is seeking to resist the execution of the judgment for the full amount and asks that certain compensation or set-off be allowed. The judgment debtor has filed a petition in which he alleges that prior to the rendition of the judgment by the District Court and the Court of Appeal he had returned to the plaintiff, Star Shoe Company, 432 pairs of shoes for credit on the account sued on and that after the judgment was rendered by this Court, he and his attorney called upon the attorneys for the plaintiff in order that proper adjustment might be made for the shoes returned and for payment of the balance due. Fie alleges that they were informed that the Star Shoe Company has sold 272 pairs of the shoes -and were, therefore, not able to return them to the defendant, but that the attorneys on behalf of the plaintiff would not consent to any reduction in the amount due under the judgment for the price of the 272 pairs of shoes so sold, and, further, that the Star Shoe Company is in possession of the remaining 160 pairs of shoes and that they should be compelled to return these shoes to the judgment debtor.

It is further shown by the petition that on the 12th day. of July, 1949 the Star Shoe Company, acting through its attorneys, caused to be issued a'writ of fieri facias fpr the whole amount- of the judgment, and under this writ seized., all monies belonging to the judgment debtor in the First State Bank and Trust Company of Bogalusa, whereupon the officials of the bank paid over to the Sheriff, Dorman A. Crowe, of Washington Parish, the sum of $1741.55, the full amount of the judgment plus interest and costs although the writ was not accompanied by a writ of garnishment, “and that said Dorman A. Crowe is in posssession thereof in his official capacity.” It is further alleged that no rule herein has been filed by the Star Shoe Company or their attorneys and no notice to petitioner given to protect his rights and claims against the Shoe Company by reason of having declined to deliver to the petitioner the shoes returned or to account therefor, and that notwithstanding the petitioner’s tender to ' satisfy the judgment upon being allowed credit in the sum of $1020.20 for the shoes sold and returning the remainder of said shoes, the Star Shoe Company proceeded in the manner outlined. Wherefore, the petitioner prayed for the citation of the Star Shoe Company through their attorneys of record, and Dor-man A. Crowe, Sheriff of said parish, and after the legal delays and due proceedings that there be judgment in favor of the petitioner and against the Star Shoe Company decreeing that the sum of $1020.20 be deducted from the sum to be paid out of the seizure and, accordingly, that the Sheriff be authorized and directed to deduct the amount thereof from the funds in his possession, and that the shoe company be compelled to deliver unto the judgment debtor, D. R. Hendricks, the 160 pairs of shoes that they have in their possession, all as a condition precedent to a collection of the judgment in question. •

To this petition the Star Shoe Company, a nonresident corporation domiciled in Boston, Mass., through its attorneys filed an exception to the petition on the ground that the citation issued is defective and also that it discloses no right or cause of action. The lower court sustained the exception of no cause or right of action with oral reasons. It is stated in brief of counsel for Star Shoe Company, although not in the record, that the learned. Judge of the District Court stated, and it is the contention of the judgment creditor, that the action of the judgment debtor was in effect a collateral attack upon the judgment and that as it was a judgment of the District Court, affirmed by the Court of Appeal and Supreme Court and completely executed, it was, therefore, in his opinion “as solid as the rock of Gibralter” and neither the District Court nor any other Court had the right to attack this judgment as was attempted in the petition of the judgment debtor. The Court then cited Article 556 of the Louisiana Code of Practice which provides as follows:

“Methods enumerated. — Definitive judgments may be revised, set aside or reversed :

“1. By a new trial.

“2. By appeal.

“3. By action of nullity.

“4. By rescission.

“This last mode can only be exercised by minors, or persons who were absent when judgment was rendered against them.”

It is true that the judgment debtor is not trying to revise, set aside or reverse the judgment by any one of the four procedures stated in the quoted article of the Code, of Practice. The original judgment was based upon the proposition that the defenses of the defendant, now the judgment debtor, were not good and, therefore, the Star Shoe Company was entitled to payment in full for the shoes which, of course, would mean that Hendricks was the owner of the shoes. There was no plea of compensation or set-off in the original suit. There was nothing in the record at the time of the rendition of the original judgment or until the filing of the present petition to show that the Star Shoe Company had taken the shoes from the express company and had sold 232 pairs of them and was refusing to give credit or return the other 160 pairs. If this had been proven on the trial of the case there is no doubt that this judgment would have been different. At least Hendricks would have been given credit for the amount for which the Star Shoe Company sold the 232 pair of shoes. Of course, the judgment debtor is claiming the invoice price and he might be entitled to that credit rather than the amount for which the shoes were sold. However, he would have received credit at least in the amount for which the shoes were sold and the Star Shoe Company would have been ordered to return the 160 pairs of shoes.

According to the brief of counsel for the Star Shoe Company, counsel for the judgment debtor did not cite a single, solitary authority in the District Court.

In the case of Meriwether v. Dorrity, decided by the Supreme Court and reported in, 158 La. 405, 104 So. page 187, 190, in a per curiam opinion by that Court as a result of an application for rehearing, the Court said: “Of course the defendants should receive credit for all rent collected by plaintiff after defendants had abandoned the premises, and during the term for which they are held liable; same to be imputed as of the date when collected. Holden v. Tanner, 6 La.Ann. 74, Ledoux v. Jones, 20 La.Ann. 539; see, also, Succession of Romero, 137 La. 236, 251, 68 So. 433. But no amendment of our decree is necessary for that purpose, since such credit may be urged as a set-off against the judgment itself in reduction and partial compensation thereof. Code of Practice, art. 373; Caldwell v. Davis, 2 Mart., N.S., 135.”

Also see Sliman v. Mahtook, 17 La.App. 635, 136 So. 749, 750 wherein it was stated :

“ * * * Compensation is a form of payment which takes place by mere operation of law, without the knowledge of the debtor, and ‘the two debts are reciprocally extinguished’, as soon as they exist simultaneously, to the amount of their respective sums.’ Civ. Code, arts. 2207, 2208; Caldwell v. Davis, 2 Mart., N.S., 135 Civil Code art. 2210, further provides that it takes place ‘whatever be the causes of either of the debts.’ The law makes no distinction between the different forms of debt; the principal requirement being that they be ‘equally liquidated and demandable.’ Civ. Code, art. 2209. In Caldwell v. Davis, cited supra, it was the creditor’s note which the debtor had purchased and was pleading in compensation. In Pattison et al. v. Edmonston et al., 4 La.Ann. 157, it was their judgment creditor’s own judgment which the judgment debtors had bought and successfully pleaded in compensation. In the very recent case of Hart v. Polizzotto, 171 La. 493, 131 So. 574, the Supreme Court held that a person, although only secondarily liable on a note which he had paid, could plead the same in compensation against a judgment rendered against him for costs of court. If the forms of obligation relied on in the cases referred to constituted debts equally liquidated and de-mandable with a judgment, it would seem that a bank check, which is an unconditional order to pay money and .constitutes an assignment of the funds it is drawn against the moment the bank is notified of the drawing, creates a debt which is as fully liquidated and demandable and is of equal dignity with the others.

“Compensation may be pleaded at every stage of the proceedings, provided it be specially pleaded, and it may be pleaded either in answer to the principal demand or claimed in a separate and distinct demand. Code of Practice, arts. 367, 368. In Pattison et al. v. Edmondston et al., cited supra, it was made the basis of an injunction, as in this case, to prevent the execution of a judgment against which it was being pleaded. * * * ”

See Succession of Gilmore, 157 La. 130, 102 So. 94, decided by the Supreme Court which was a suit to annul and set aside a judgment and in which the Court made the following statement:

“The main question submitted for consideration, under an exception of no cause of action, is whether the allegations in the petition, if taken as true, form a sufficient basis for an action of nullity under article 607 of the Code of Practice which provides that:

“ ‘A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in. whose favor it was rendered; as if he had obtained the same by bribing the judge or-the witnesses, or by producing forged documents, or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.’

“It is true that said petition does not charge ‘fraud’ or the ill practices specifically enumerated in the article of the Code of Practice above cited. The remedy given by said article to annul judgments, however, is not restrictive. The courts of this state will not hesitate to afford relief against judgments, irrespective of any issue of inattention or neglect,, when the circumstances under which the judgment is rendered show the deprivation of legal -rights of the litigant who seeks relief, and when the enforcement- of the judgment would be unconscientious and inequitable. Our courts will follow the general principles of equity jurisprudence applied by the equity courts of the other state-s of this country in actions of this character. Lazarus v. McGuirk, 42 La.Ann. 200, 8 So. 253; City of New Orleans v. LeBourgeois, 50 La.Ann. [591], 592, 23 So. 542.

“Courts 'of equity will not permit one party to take advantage of and enjoy the gains of ignorance or mistake of law by the other, which he knew of and did not correct, especially when a confidential or fiduciary relation existed between them. Pomeroy, Equity Juris, vol. 2, Pars. 847, 848, 849, 956.”

See Vinson v. Piocala et al., La.App., 15 So.2d 778.

In the case of Termini v. McCormick, 208 La. 221, 23 So.2d page 52, 55, which was an action to set aside a judgment, Justice Hamiter as the organ of the Supreme Court made the following statement: “Of course, a court may order the vacating of a judgment where a person having the required interest alleges and proves sufficient grounds therefor, the power in thi-s respect -being predicated upon substantial principles of right and wrong and is to be exercised for the prevention of injury and the furtherance of justice. Since, however, the very purpose of having a j.udgment set aside is to reach a result different from that obtained originally, it is not sufficient, with reference to the stating-of a cause of action, for a plaintiff to make general allegations of irregularities and omissions; he must set forth in his petition, clearly and accurately, definite facts from which there can be drawn the conclusion that a reconsideration or the conducting of further proceedings will result in a different decree.”

While the petition before us is not one seeking to nullify the judgment nor to vacate the judgment, it is one seeking a credit as a set-off against the judgment itself in reduction and partial compensation thereof, and also a revision of the judgment in that respect, and it appears to us that on the face of the petition it would be “unconscientious and inequitable” under the ■ facts alleged in this petition to allow the enforcement of the judgment in full, and also that the petition in the present case clearly and outrightly sets forth "definite facts from which there can he drawn the conclusion that a reconsideration or the conducting of further proceedings will result in a different decree”. It is not equitable for the Star Shoe Company to collect the full amount of the judgment, sell 232 pairs of the shoes, give no credit o'n the judgment, and retain the other 160 pairs, and in effect, say “Come to Boston and file your suit against me.”

As to the exception to the citation, the trial court did not think it necessary to pass upon it. Counsel for Hendricks relies upon the case of Schultz v. Long Island Machinery & Equipment Co., La.App., 173 So. 569, 575, and particularly the statement made therein: * * The general, if not invariable rule, is that the benefits of a special plea or exception are waived unless action by the court thereon in limine is insisted upon. This is well established in our jurisprudence. * * * ”

Also, counsel for Star Shoe Company in his brief merely states that in plaintiff’s petition he filed exceptions of no cause or right of action and exception to the citation. There is no other mention made of the exception to the citation and it is, therefore, not urged on appeal.

It is therefore ordered that the judgment of the District Court be reversed and the exception of no' right or cause of action be overruled and the case remanded to the District Court