author: DORE, Judge. ELLIS, Judge

text:
    BENOIT v. HUNT TOOL CO. et al. HOLLOWAY v. HUNT TOOL CO. et al. ANCHOR CASUALTY CO. v. HUNT TOOL CO. et al.
    No. 3212.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    See, also, 45 So.2d 526.
    Bass & Brame, Lake Charles, for appellant.
    St. Clair Adams & Son, New Orleans (P. A. Bienvenu, New Orleans, of counsel), for defendant.
    Patin & Patin, Lake Charles, for war-rantor.
   DORE, Judge.

These three -separate suits were consolidated for trial in the District Court and were consolidated for argument and submission in this court with the provision that a separate decree be rendered in each case. Plaintiffs Stanford Benoit and Joseph Holloway filed separate suits in tort for damages against Hunt Tool Company and its insurer, Insurors’ Indemnity and Insurance Company. The other plaintiff, Anchor Casualty Company, the compensation insurer of Morris & Meredith, Inc., filed suit against the Hunt Tool Company and its insurer to recover workmen’s compensation and medical expenses which it had paid to or on account of Stanford Benoit, Joseph Holloway and Clemence Thibodeaux, employees of Morris and Meredith, Inc., and medical expenses it had paid to one Richard P. Stout, an employee of Wilson Manufacturing Company.

It is admitted that Insurors’ Indemnity and Insurance Company is the public liability insurer of Hunt Tool Company and that Anchor Casualty Company is the workmen compensation insurer of Morris & Meredith, Inc.

The facts in the case are not seriously disputed and are briefly stated as follows: On May 4, 1946, plaintiffs Benoit and Holloway were employed as “roughnecks” by Morris & Meredith, Inc., a corporation engaged in the oil well drilling business. Morris & Meredith, Inc., hired a welder, a helper, welding equipment and supplies from Hunt Tool Company, defendant herein, to do such welding work as would be necessary in connection with a drilling rig which it was erecting. The plaintiffs Benoit and Holloway were seriously injured by the explosion of a small tank containing fuel oil which occurred when Henrie Guillory, the welder hired from Hunt Tool Company lighted his acetylene torch in a very close proximity to the tank after already having attempted to electrically weld a crack in the tank. Plaintiffs Benoit and Holloway each received painful and disfiguring burns and other injuries. Each of the plaintiffs effected a court-approved compromise of their claims arising out of the Workmen’s Compensation Act against their employer, Morris & Meredith,' Inc.; the Anchor Casualty Company, the compensation insurer of Morris & Meredith, Inc., is seeking reimbursement of the compensation paid to the aforementioned plaintiffs and for compensation and medical expenses paid to Clemence Thibodeaux and Richard P. Stout.

Exceptions of no right and no cause of action were filed in each suit by the defendants. These exceptions were overruled. These exceptions are not urged in this court and are therefore considered as abandoned.

Thereafter the case was tried on the merits and the lower court, with written reasons, rendered a judgment in favor of the defendants rejecting the demands of all plaintiffs. Plaintiffs appealed.

The evidence leaves no doubt that the accident and injuries sustained by the plaintiffs were the result of the negligent conduct of Henrie Guillory in performing certain welding operations on a partially closed tank containing fuel oil.

Plaintiff employees contend that Hunt Tool Company is an independent or subcontractor of Morris & Meredith, Inc., as such was the employer of Henrie Guil-lory, and is a third party as contemplated by Section 7 of Act No. 20 of 1914, as amended, Act No. 247 of 1920, and is therefore liable in tort for the injuries sustained by them and caused by the negligence of Henrie Guillory in the course and scope of his employment. The other plaintiff makes the same contention as to- the.-status of Hunt Tool Company and further contends that it should be reimbursed for the compensation and medical expenses paid by it to the employees for and on behalf of Morris & Meredith, Inc.

Defendants contend that the plaintiffs’ employment is covered by the Employers’ Liability Act of Louisiana and that their exclusive remedy for the injuries' sustained by them is under said Act and that the defendant, Hunt Tool Company is not a third person within the meaning of Section 7 of the Employers’ Liability Act, Act No. 20 of 1914, as amended.

In the alternative, defendants contend that Henrie Guillory had been loaned to Morris & Meredith, Inc., and at the time of the accident was under its exclusive direction and was pro hac vice an employee of Morris & Meredith, Inc., and if Henrie Guillory was negligent they are not liable for his negligence.

In the further alternative, defendants contend that the sole cause of the accident was the action of Morris of Morris & Meredith Inc., in ordering Henrie Guillory to weld a fuel tank which contained fuel oil.

Whether Henrie Guillory, at the time of the accident, was an employee of Hunt Tool Company or an employee of Morris & Meredith, Inc., quoad these plaintiffs he was a “third person” within Section 7 of Act No. 20 of 1914, as amended, providing that employee may claim compensation under said Act and also sue for tort against third person causing damages. See Kimbro v. Holladay et al., La.App., 154 So. 369, and the cases therein cited.

Since Henry Guillory was a “third person” within the purview of our Compensation Statute, supra, and since his negligent act was while he was in the course and scope of his employment, his .employer, at the time of the accident, is responsible therefor. The important question now remaining is to determine his employer at the time of the accident.

The evidence shows that Morris & Meredith, Inc. is a corporation engaged in the oil well drilling business and on May 4, 1946, it was engaged in repairing and overhauling a rig to be used in drilling for oil and gas on a location in Calcasieu Parish. Hunt Tool Company is in the business of furnishing welding supplies and equipment, together with welders and helpers, to the general public. Morris & Meredith, Inc. did not have such welding supplies, equipment, and welders in their employ to do such welding as might become necessary. Consequently, the drilling company would order from day to day from the tool company such welders and equipment as needed, which the said tool company would send to the drilling location. For example, on April 29, 1946, the drilling company ordered from Hunt Tool Company two welders with one helper and equipment; on April 30, 1946, it ordered two welders with one helper and equipment; on May 1, 1946, it ordered two welders with helper and equipment; on May 2, 1946, it ordered one welder with helper and equipment; on May 4, 1946, the day of the accident, it ordered one welder, with helper and equipment. One of the welders so sent by the tool company, from the beginning and up to and including the last order detailed above was Henrie Guillory, who was in charge of the crew. According to Henrie Guillory, he, with the equipment and helper, reported on each day to J. L. West, Morris & Meredith’s foreman on the job, for full instructions as to what the crew was to do.

The evidence is clearly to the effect that when Guillory arrived at the rig, he did not know how long he would work or what he would be required to do; he took all of his directions and instructions from Mr. Morris, an officer of Morris & Meredith, Inc., who was present on the location on that day, or Mr. West, the foreman or “tool pusher” in charge of the rig. He was under the complete supervision of Morris or West, and he accepted such orders and supervision from them; he was ordered around and treated in the same manner as any other employee of the said Morris & Meredith, Inc. It is further shown that 'from the moment Guillory arrived at the location of the well he was no longer under the supervision, control, or received any orders of any nature or kind whatever from Hunt Tool Co. However, he received his wages from said Hunt Tool Co. What is the legal effect of such a situation ?

As to plaintiff’s contention that Hunt Tool Company was an independent or sub-contractor, we find no merit therein. Hunt Tool Company did not contract to do a certain piece of work according to their own methods. They hired out or leased their equipment and their operators to Morris & Meredith, Inc., to do whatever welding they, Morris & Meredith, Inc., had to do. Hunt Tool Company never knew what was to be welded nor how long it would take his welders to do whatever Morris & Meredith, Inc. desired to be welded. Under the evidence, it is clearly-shown that Morris & Meredith, Inc. directed and controlled the employees of Hunt Tool Company in what they did. It is therefore clear that Hunt Tool Company was not an independent or sub-contractor of Morris & Meredith, Inc.

In 35 Am.Jur., page 455, Section 18, is found a general statement of the situation resulting where the employees of one master are loaned to another for the carrying out of the work of the borrowing employer, viz.:

“One who has the status of general servant or employee may be lent or hired by his master to another for some special service so as to become, as to that service, the servant of such third person, the test being whether, in the particular service which he is engaged to perform, he continues to be under the direction and control of his master or becomes subject to that of the person to whom he has been lent or hired. Where an employee, with his consent, has thus been lent by his general employer to another person, he is deemed to have become, for all purposes of the relationship of master and servant, the employee of thé borrower. For the time being, he is subject to the borrower’s control and direction. However, the conclusion as to his status is the same regardless of the showing as to whether the person to whom he has been lent actually exercises his right of control or direction as to the details of the work, or simply sets the servant to do what is necessary, trusting to his expert skill for the result.

“To establish the fact that the servant of one has transferred his services to another pro hac vice, it must appear that he has assented, expressly or impliedly, to such transfer. No -one can transfer the services of his servant to another master without the servant’s consent. It must further appear that the servant has, in fact, entered upon the service and submitted himself to the direction and control of the new master.” (Italics ours).

In.regard, to the tort liability of the borrowing master and the non-liability of the lender employer, in 35 Am.Jur. page 970, Section 541, we find: “The fact that a person is the general servant of one employer does not, as matter of law, prevent him from becoming the particular servant of another, who may be held liable for his acts. Indeed, as a general proposition, if one person lends his servant to another for a-particular employment, the servant, for anything done in' that employment, is dealt with as the servant of the one to whom he has been lent, although he remains the general servant of the person who lent him. * * * The mere fact that the general employer continued to pay the wages of the wrongdoer will not make him liable for the wrongful act where it appears that the person to whom he was lent controlled him . entirely in regard to the work to be done.”

The loan-servant' doctrine has been recognized by this court and the other appellate courts of this State. See Sadler v. May, La.App., 185 So. 81; Hutto v. Arbour, La.App., 4 So.2d 84; Cali v. Cloverland, La.App., 21 So.2d 166; Spanja v. Thibodeaux Boiler Works, La.App., 2 So. 2d 668; Duke v. Dixie Bldg. Material Co., La.App., 23 So.2d 822; Dixie Machine, Welding & Metal Works v. Boulet Transfer Co., La.App., 38 So.2d 546.

Applying the tests as provided in the quoted sections of American Jurisprudence, supra, and the cases cited supra to the facts in this case, we must reach the conclusion that Henrie Guillory became an employee, pro hac vice, of Morris & Meredith, Inc.; that, as such, Morris & Meredith, Inc. was liable for Guillory’s negligence, and not Hunt Tool Company. Since the plaintiffs and Guillory were the employees of Morris & Meredith, Inc., their remedy is exclusively governed by the Compensation Act.

■ Therefore, the judgments appealed from will be affirmed by separate decrees.

ELLIS, Judge

(dissenting).

Morris and Meredith, Inc., the employer of the plaintiffs, Benoit and Holloway, was engaged in the oil well drilling business, and in attempting to set up a rig on its first contract and ¡first location for the purpose of drilling an oil well it ¡became necessary that quite a bit of welding ¡be done in and around and on different parts of the rig. The Hunt Tool Company was engaged in the business of renting, drilling bits and other material used in the oil well drilling business, and it was also engaged in the welding business. It is shown that they kept in their employ regularly twelve skilled welders and when, as in the present instance, an oil rig was ¡being set up and it was necessary that welding be done a representative of the Hunt Tool Company would contact the owner or superintendent of the drilling rig in order to obtain the business for the Hunt Tool Company, or, as it was known that the Hunt Tool Company was engaged in the business of welding, the owner or superintendent of the drilling rig might contact the company. It might be that the drilling company would also need drilling bits or any other equipment which they let out on rental basis and for which it is shown on the bill head of the Hunt Tool Company the drilling company would be responsible if same was lost or stolen.

In the present case, it is shown that a representative cf the Hunt Tool Company had contacted Morris and Meredith and solicited their business and as Morris and Meredith had no regularly employed welders in their service their tool pusher, West, called the Hunt Tool Company and it agreed to do all the welding necessary on the rig for a flat price per hour. On May 4, 1946 one of the Hunt Tool Company’s regularly employed welders was Henrie Guillory, and in accordance with its contract with Morris and Meredith, Inc., they had sent this welder, a helper and all necessary welding equipment, both acetylene and electrical, to the location of the drilling rig.

The superintendent, Morris, pointed out a fuel tank which at the time was partially filled with the fuel oil, which was leaking and needed welding, and Guillory questioned the advisability of welding this tank while it had the oil in it, but after a discussion and after Morris had told him that he could use the electric torch, he started to weld the' tank with it. The rod not being satisfactory, he ordered his helper to bring •him a different sized rod, and while waiting he took his unlighted acetylene torch and put it through the opening in the top of the ¡fuel oil tank, placed a cotton glove in the hole through which he had put the torch, and filled the empty portion of the tank with oxygen in order to put pressure on the fuel oil so that he could definitely determine the nature and extent of the leak. He then removed the cotton glove and the torch and walked about two feet from the tank with the intention of welding another piece of machinery that had previously been pointed out to him, and ignited the torch and the explosion happened immediately, which resulted in the injuries to the plaintiffs.

To the plaintiffs’ petition, the defendants filed an exception of no cause or right of action based upon the ground that under the facts alleged the Hunt Tool Company was not a third party as referred to in Section 7 of the Act. This exception was heard before Honorable John T. Hood, Jr., one of the Judges of the Fourteenth Judicial District Court, and in a well-written and reasoned opinion he overruled the exception and held that Hunt Tool Company under the allegations of the petition must be considered as a third person within the meaning of the Act, insofar as the employment of the plaintiffs Benoit and Holloway were concerned. The defendants further argued on the exception that according to the allegations of fact contained in the petition Guillory became the particular employee pro hac vice of Morris and Meredith, Inc. and, therefore, his original or immediate employer, Hunt Tool Company, was not liable in tort for Guillory’s negligent acts while so employed. His Honor in the Lower Court, in the same opinion, held that there were no allegations in the petition of plaintiffs which in any manner showed that Guillory was loaned or hired to Morris and Meredith or that he became a 'fellow servant of Benoit and Holloway.

The defendant, when it filed its answer, raised the same defenses as were argued in the exception, and a different judge of the Fourteenth Judicial District tried the case on its merits and held that the Hunt Tool Company was not a third person within the meaning of the Act.

The majority opinion does not specifically pass upon the question as to whether the Hunt Tool Company was a third person within the meaning of the Compensation Act hut holds that Guillory was a third person, with which I agree, hut I also am of the opinion that the Hunt Tool Company was clearly a third person within the meaning of the Act. The majority opinion stated the question to he decided as follows: “Since Henrie Guillory was a ‘third person’ within the purview of our Compensation Statute, supra, and since his negligent act was while he was in the course and scope of his employment, his employer, at the time of the accident, is responsible therefor. The important question now remaining is to determine his employer at the- time of the accident.”

I will discuss the case with this question in mind.

The majority opinion holds “that Henrie Guillory became an employee, pro hac vice of Morris & Meredith Inc.; that,-as such, Morris & Meredith, Inc. was liable for Guillory’s negligence, and not Hunt Tool Company. Since the plaintiffs and Guillory were the employees of Morris & Meredith, -Inc., their remedy is exclusively governed by the Compensation Act.”

I am of the opinion that under the facts in this case Guillory, at the time of the accident and the entire time that he welded on the drilling rig of Morris and Meredith, Inc., was the employee of the Hunt Tool ■Company and was never an employee of Morris and Meredith “pro hac vice,” either by having been loaned to or borrowed by or hired by Morris and Meredith, for I believe, under the facts and the law applicable thereto, that the Hunt Tool Company was a subcontractor or an independent contractor.

There is no dispute that Henrie Guillory was one of the twelve skilled welders which Hunt Tool Company regularly kept in their employ in furtherance of its welding business. In my opinion it is a question of whether Hunt Tool Company hired to Morris and Meredith its welders, particularly Guillory, on the day of the accident, the ■helper and all necessary welding equipment, or whether it was a subcontractor or independent contractor.

In Crysel v. Gifford-Hill & Co., La.App., 158 So. 264, 265, the Court held:

“One contracting to do certain work according to plans and specifications prepared by co-ntractee, but who exercises full control as to method' of doing work, save that it must be up to certain standard, is an ‘independent contractor,’ for whose actions contractee is not liable, though he exercises some supervision over work to see that it is done according to contract.

“Subcontractor employed by contractor to do dirt work on state highway, who was financed by contractor and subject to his general control and supervision, held ‘independent contractor,’ and not ‘employee’ of contractor, and hence contractor was not liable for negligence of subcontractor’s employee.

* * * * * *

“ ‘And our own courts have repeatedly held that the mere fact that a proprietor retains general supervision over work to be constructed for him by another, for the purpose of satisfying himself that the contractor carries out the stipulation of his contract, does not make him (the proprietor) -responsible for the wrongs done to third persons in the -prosecution of the work. Lutenbacher v. Mitchell-Horne Const. Co., 136 La. 805, 67 So. 888, 19 A.L.R. 206; Robichaux v. Morgans’ L. & T. R. & S. S. Co., 131 La. 727, 60 So. 206; Robideaux v. Hebert, 118 La. 1089, 43 So. 887, 12 L.R.A.,N.S., 632; Muldry v. Fromherz & Drennan, 142 La. 1087, 78 So. 126.’ ”

In Ravare v. McCormick & Co., La.App., 166 So. 183, 185, a definition of an independent contractor and a test to be applied was given by the Court in the following words:

“What is an independent contractor? It is defined as ‘one who is rendering services, an independent employment or occupation, and represents the employer only as to the results of his work, and not as to the means whereby it is to be done.’ 39 C.J., § 1517, p. 1315. The most generally applied test of the relationship is the ‘right of control as to the mode of doing the work contracted for.’ Ibid, § 1316; Faren v. Sellers, 39 La. Ann. 1011, 3 So. 363, 4 Am.St.Rep. 2S6; Gallagher v. Southwestern Exposition Ass’n, 28 La.Ann. 943.

“The circumstances which go to show one to ibe an independent contractor are the ‘independent nature of his business, the existence of a contract for the performance of a specified piece o'f work, the agreement to pay a fixed -price for the work, the employment of assistants by the employee who are under his control, the furnishing by him of the necessary materials and his right to control the work while it is in progress-.’ 39 C.J. p. 1316, § 1517.”

I also accept as if written herein the law as stated -in the majority opinion in the 35 A.J., Sec. 18, Pg. 455 and Sec. 541, Pg. 970, but believe that an application of the test as laid down by the quoted law will show under the facts in this case that Hunt Tool -Company is a subcontractor.

In the present case, the Hunt Tool Company -contracted to do all necessary welding on -a particular oil rig of Morris and Meredith, Inc. 'for the fixed price of $5.50 per hour, and the Hunt Tool Company employed its own welders and assistants and ■furnished to them all of the welding equipment and materials necessary to carry out its contract. It only remains necessary to discuss the right of the Hunt Tool -Company to control the method, mode or details of the actual welding while it was in progress in order to satisfy the requirements of the law that it was an independent contractor.

Hunt Tool Company has pitched its defense upon the ground that it had no supervision or control over the welders or the helpers after they left its place of business, and at no time did they exercise any control while Guillory and the other welders ■worked -on the Morris and Meredith drilling rig job. It is not a question of whether the Hunt Tool Company exercised control and supervision after they had left their office, but whether the Hunt Tool -Company had the right to exercise control and supervision as to the details of the work. Morris, the superintendent of the Morris and Meredith company, testified when asked what agreement he had with the Hunt Tool Company for "this welding work,” that there was hardly ever an agreement made. “They (meaning Hunt Tool Company) just order out the welders. There is no written agreement or anything like that; (Hunt Tool Company) just order out the welder and the helper with whatever equipment they (Hunt Tool -Company -or the welder and his helper) -might need to perform the job.” (Par-enthetics added.) In other words, the Hunt Tool Company would order out its regularly employed welders and helpers with whatever equipment might be necessary to perform the welding for which Hunt Tool Company had -contracted. It is shown in the present -case, for example, on April 29, 1946, the Hunt Tool Company had two welders with one helper and equipment; on April 30, 1946 Hunt Tool -Company sent two welders with one helper and equipment; on May 1st, 1946, two welders with helper and equipment; on May 2, 1946 Hunt Tool Company sent one welder and one helper and equipment; -on May 4, 1946, the day of the accident, Hunt Tool Company sent one welder with one helper and equipment, and thereafter, through May 8, 1946, Hunt Tool Company sent one welder and one helper and equipment each day. The dates given by me as well as- the dates given in the -majority opinion are the same, except that therein it is stated that -only those dates the drilling company ordered them from Hunt Tool -Company, -which I think is an error. The evidence is to the effect that after the Hunt Tool -Company had solicited the business of Morris and Meredith, Inc., and after Morris and Meredith notified them or gave them the business of welding all necessary parts of its rig, the Hunt Tool -Company, on April 29, 1946, sent two welders with one helper and equipment to begin the fulfillment of its contract, to do -all necessary welding on the rig. From then on, it is shown that at the end of each day Morris or West of Morris and Meredith told the welder whether or not there was more welding to be done on the rig so that Hunt Tool -Company could send one or two welders and a helper or helpers, if it thought necessary, back to the drilling rig the next day. There is no evidence to show that Morris and Meredith ever designated the number of welders to he sent to the rig, nor ordered out in the sense of hiring from the Hunt Tool Company any welders.

The dates upon which the Hunt Tool Company did welding for Morris and Meredith are shown by tickets or bills on Hunt Tool Company’s billheads, which have been introduced in evidence, and on which it is shown the number of welders and helpers who worked on the dates shown on the tickets or billheads on the Morris and Meredith drilling rig, with a statement of what they did together with the number of hours on location plus traveling time. For example, the ticket or billhead on the top contains in big letters, “Hunt Tool 'Company” and underneath its places of business, “Houston, Corpus Christi, Bay'City, Texas; Jennings, Harvey, La.” “General Office, Houston, Texas” and then lists the phone No. and Post Office Box Number, and to the right of this is the number of the ticket or bill head in large red letters; “To Morris & Meredith Contr. Co., Address, Homewood,” then the rig number, lease number, well number. Underneath is written “Farmers Land & Canal Company, Rig No. 3.” Under this is printed “This Charge for the following bits and material furnished you on rental 'basis. It is hereby agreed that in case of loss or theft that you will reimburse the Hunt Tool Company.” I do not think this clause applies to the present case for there is nothing to show that this equipment was furnished on a rental basis. Then, under this we have a column with the word “Quantity”, the next column with the word “Bit Size,” written at the top; the next column with the word “Bit No.” written at the top, then over to the right and at the top of a column is- the word “Price.” Then, written in pencil by Hunt Tool Company is the following: “Two welders with one helper and equipment to location doing cutting and welding on your substructure as instructed.” Under this is “9 hrs on location plus traveling time.” Under this and apparently in the writing of the welder is “11 hrs welder and 1 helper @ 9.90,” and in the column under “Price,” is $108.90. Jennings, Louisiana is stamped underneath thisx then the date, 4-29-46, then the printed words “Received 'by:” and signed “I, L. West.” Each one of these tickets or bills is worded practically the same except one on May 4, 1946 which has written on it “Send welder, with helper equipment to location .to do rig up work- & weld on diesel tank as instructed.”

While the majority opinion has taken the statement' and information on the ticket as I have given it to mean that Morris & Meredith ordered welders and helpers and equipment each day from the Hunt Tool Company, to me it is clearly nothing more nor less than a statement by Hunt Tool Company as to the number of welders and helpers who worked on the Morris & Meredith welding job, with the general statement of what cutting and welding they did, together with the charges therefor. For example, “Cutting and welding on the substructure as instructed,” simply means that on that date it had sent two welders and a hélper and equipment to the Morris & Meredith drilling location who cut and welded on Morris and Meredith’s substructure as pointed out or, in other words, as needed welding. The words, “As instructed,” on these tickets, when taken in connection with the entire written part of the bill which was made out by Hunt Tool Company, simply means that their employees cut and welded on certain parts of the drilling rig of Morris & Meredith which required it. The two tickets in evidence dated May 1st, 1946 show more clearly the meaning of “as instructed” for on both of them is written “welder with helper and equipment to location to do cutting and welding on your stand pipe, making rat hole and other cutting & welding as instructed.” I do not see how any other interpretation could 'be given to the words “as instructed.” It does not mean that Morris and Meredith instructed the welders- as to the mode and method of the details of doing the job.

Neither, in my opinion, do these tickets mean that Morris & Meredith ordered in the sense of employing or hiring these welders or helpers. There is a document introduced in evidence which is a copy of invoice of Hunt Tool Company in which the Hunt Tool Company has totalled the amount of the services and balance due by-Morris and Meredith for the welding and has written- in each instance “send two welders” etc. However, this is no more evidence that Morris and Meredith ordered the welders sent to them than it might be, which I believe it is, an order from Hunt Tool Company to possibly their shop superintendent or employee in charge of the welders to send the welders to the Morris and Meredith company in fulfillment of its contract. As far as the evidence goes, it was entirely up to the Hunt Tool Company as to how many or which one of its welders or helpers it sent each day on this job, but it is -shown that one of the welders so sent by the tool company from beginning and up to and including the last day that it- did any sending on this rig was Henrie Guillory, who was in charge of the crew. According to his testimony, he was the foreman of the crew. Of course, it is shown that Guillory gave all orders to his helper and had complete control and supervision over him. The testimony does not show that Guillory was designated as foreman nor placed in charge of the welding crew by Morris and Meredith but, on the contrary, evidently obtained such authority from the Hunt Tool Company.

Henrie Guillory testified that he reported each day to West, the foreman of Morris and Meredith, for- full instructions as to what the crew was to do. He also stated that he -did not know how long he would work nor what he would be required to do. Of course, he meant what welding he would be required to do because the testimony shows that that is what he was trained for, what he was employed for by the Hunt Tool Company and all he ever did for the Hunt Tool Company and all that he was ever supposed to do on the drilling ■rig job.

It is clear from the evidence that Guil-lory expected to work as long as he had instructions from the Hunt Tool Company to do so on the drilling company’s job, and it is further shown that under the contract that Hunt Tool Company was to do all welding necessary on this particular rig. The fact that the Hunt Tool Company did not go over and check each little piece of machinery - that needed welding and have this information definitely before it sent its employees to do the job is immaterial. It chose to agree to do all welding on the rig for Morris and Meredith which theyt pointed out as being necessary, and for this service it was agreed that Morris and Meredith would pay by the hour. Therefore, the lack of -Such knowledge on the pa-rt of Guillory is immaterial. There was a definite and specific understanding as to the piece of work to be done. Guillory testified that he took all of his directions and instructions from Morris, the superintendent of Morris and Meredith', or from West, its “tool pusher.” The testimony shows that all that Morris or West did was to tell or show Guillory what to weld, which was clearly contemplated and implied by the agreement. It is shown that Morris would also ask Guillory to weld a certain part of the machinery prior to welding another part. It is easy to understand that with various and sundry parts of the machinery needing welding,- and with other workers upon the machinery at the same time that it was best for both parties, Hunt Tool Company and Morris and Meredith, Inc. that the welding be do'ne as pointed out by and when suggested by Morris -and Meredith. Such action was merely in the nature of a general supervision and was not the exercising of control as to the means or method to be used in accomplishing the welding of the machinery.

The Hunt Tool Company in addition offered the testimony of its shop foreman who had supervision of the welders to the effect that he exercised no supervision over them after they left the Hunt Tool Company place of business to report to the Morris ■and Meredith rig. He did not testify as to what the agreement was with Morris and Meredith or that the Hunt Tool Company had not contracted to do the welding on this rig. Hunt Tool Company also offered the testimony of its shop superintendent who stated that he had contacted Mr. Morris and Mr. West, who were connected with the Morris and Meredith drilling concern, sometime in May, 1946 in order to solicit any business they might be able to give “us” in the setting up and operation of their drilling rigs. He was told by Morris and West that should they desire to use any or part of the Hunt Tool Company’s services they would contact the Jennings shop. This witness did not testify that Morris and Meredith had hired this welder and helper and rented the equipment of Hunt Tool Company.

The mere fact that the shop foreman did not supervise the welders and their helpers after they left the Hunt Tool Company place of business is not proof that the Hunt Tool Company still did not have the right to do so. That is one reason why Hunt Tool Company employed these twelve skilled and trained welders and owned the necessary equipment for them to do a job with. It was not necessary for the Hunt Tool Company to exercise its right of control or supervision as these men were skilled in their trade and knew how to.perform the job. For this same reason, I do not believe it was contemplated by Morris and Meredith that they were to exercise the right of control or supervision, and the fact that they could obtain a complete welding service from the Hunt Tool Company and would not be required to direct or control the details of the work induced them to contract with the Hunt Tool Company.

While there is testimony of a general nature in the record which I have referred to, or simply a flat statement made by some of the witnesses that Morris and Meredith had full supervision and control of the welder or welders, I am. of the opinion that the only supervision and control exercised by Morris and Meredith was as shown by the questions propounded by the Court and the answers given by the witness Morris to those questions, as follows:

“The Court: Mr. Morris, you answered one question that is contrary to the idea that I obtained from the balance of your testimony. I just want it straightened up and cleared up in my own mind. You answered the questions propounded by counsel in other words, the welder was under •the complete supervision of the superintendent or the man in charge of your job, you answered that question in the affirmative. Now, I understood from your testimony up to that point, that when a welder came on the job you pointed out the job that you wanted him to perform.

“The Witness: That is right.

“The Court: And then he performed that job at the time that you told him or directed him to perform it; in other words, when it didn’t interfere with the rest of the business of setting up the rig. Is that correct?

“The Witness: Yes, sir.

“The Court: Now, did you tell him how to do the welding?

“The Witness: Not all the time, no, sir.

“The Court: Did you ever tell him how to do the welding?

“The Witness: I did on that particular job. Maybe I had better put it this way: I suggested it.

“The Court: You suggested on this particular tank that he use electrical equipment.

“The Witness: Yes, sir.

“The Court: But on any other job — for instance, if he were welding a collar on a pipe, would you tell him what to use?

“The Witness: No, sir.

“The Court: Except to say that that collar has to be welded and you can work now or you can work at 5:00 o’clock when it doesn’t interfere with .the rest of our work. Is that the way you would handle it ?

“The Witness: Well, of course, a job like that is supposed to take a certain amount of time, and it is usually done by electric. We don’t have to suggest what to use.

“The Court: I am only using the welding of a collar on a pipe as an example. I don’t mean actually. Well, you haven’t cleared it up in my mind yet; The thing I want to know is this: When this welder came on the job, now. did you show him the particular work that you wanted him to do that day or while he was on the job and then let him go. ahead and do it, or did you tell him how to do it ?

“The Witness: No, we just.told■ him what to do.

“The Court: Then, the only supervision, as I understand it, that you had of the welder was to show him the job and to tell him when he could do the work so that he wouldn’t interfere with the balance of the work on the job?

“The Witness: Yes, that is right.

“The Court: Now, it was your suggestion on welding this seam in the tank that the electrical equipment would be safe to use on that job?

“The Witness: Yes, sir. That was my suggestion.

“The Court: And he did weld it with electrical equipment. Is that right?

“The Witness: That is right, as long as I was there, he was welding with electric equipment.

“The Court: I see. You don’t know whether he completed the job with electrical equipment?

“The Witness: No, I don’t.

“The Court: All right.”

After the Court had examined the witness as shown above, counsel for Hunt Tool Company further cross examined the same witness and at the close of this cross examination the Trial Judge made the following remark which is in the record:

“Somebody had to tell the man what to do, didn’t they, when he came on the job? If the welder came on the job and nobody told him what to do he wouldn’t do any work, Is that right?”

“The Witness: No, sir. That is why I— someone would have to tell him the work to be done and when to do it.”

The only instance which might be taken as tending to prove that Morris and Meredith had the right to control the welder and his helper as to the details of the work was when Morris suggested to the welder that he weld the fuel tank with the electric torch rather than the acetylene torch.

There is no doubt that Morris and Meredith did point out the various parts of the fig to be welded which, as stated by the Trial Judge, had to be done or there would have been no welding and was not an act •of supervision of the details of the work nor such an act of supervision as would tend to prove that Morris and Meredith ;had the right to exercise such control. The Hunt Tool Company alone paid the wages of the welder and his helper and owned all the equipment they used, and this welder and helper were responsible for this equipment.

It is further shown that the Hunt Tool Company only had the right to dismiss Guillory or anyone of its welders. Morris and Meredith could only report to the Hunt Tool Company that Guillory’s work was not being done satisfactorily, whereupon the Hunt Tool Company could investigate the complaint and, if justified, could fire Guillory, and if in their opinion the complaint was unjustified, could retain him in their service.

The majority opinion further states that “the loan-servant doctrine has been recognized by this court and the other appellate courts of this State. See Sadler v. May, La.App., 185 So. 81; Hutto v. Arbour, La.App., 4 So.2d 84; Cali v. Cloverland, La.App., 21 So.2d 166; Spanja v. Thibodeaux Boiler Works, La.App., 2 So.2d 668; Duke v. Dixie Bldg. Material Co., La.App., 23 So. 2d 822; Dixie Machine, Welding & Metal Works v. Boulet Transfer Co., La.App., 38 So.2d 546.”

I do not believe these cases are applicable to the present case.

In the case of Sadler v. May, supra, Dan Wilson was the owner of a truck which he hired out to the defendant May Brothers, together with the services of Sadler as driver, at a given price per day. The defendant • attempted to call Wilson in warranty on the ground that at the time the plaintiff was injured he was in the employ of and driving the truck for Wilson. The Court held [185 So. 83] : “The lower court properly dismissed the call in warranty made on Dan Wilson as under the testimony adduced he bore no relation whatever towards the defendant except that of the owner of a truck which he had hired out to it, together with the services of the plaintiff as driver. Wilson himself had no supervision or control whatever over the plaintiff who was responsible only to the defendant for the work which he performed.”

The facts in this case are different from those in the one at bar. In the present case, the Hunt Tool Company did have supervision and control over its welder Guillory and his helper, and both were responsible to the Hunt Tool Company for the work which they performed for Morris & Meredith under penalty of dismissal by Hunt Tool Company.

The case of Hutto v. Arbour, supra, involved an automobile accident in which the plaintiff sued Arbour, the driver of the wrecker truck, Sidney J. Babin and the Iberville Motor Co., Inc. The latter two were sought to be held liable for the negligent acts of Arbour on the ground that at the time of the accident he was on a mission for Babin and the Iberville Motor Company. The Court found that Arbour was not on a mission for the motor company although regularly employed by the motor company. He was not at that time acting within the scope of his employment and in the furtherance of the motor company’s business. The Court stated [4 So.2d 88]:

“All of the evidence shows that Babin sent Arbour to Baton Rouge to pick up the burned truck and bring it to his junk lot; that Babin gave Arbour the money to pay for the burned truck and paid Arbour for expenses in crossing the river going to and returning from Baton Rouge. Arbour did not charge for the trip as he had accommodated Babin, a fellow employee, on several occasions. It is true that Arbour left some fifteen minutes before his regular quitting time at the motor company and got permission from the shop foreman to leave and take the wrecker which was being used by the motor company to make the trip. He did not go on this trip under any orders or instructions from the motor company or any of its agents, nor did he make the trip on time paid for by the motor company. An employee of Babin working at the junk lot made the trip with Arbour to help him pick up the wreck.

******

“The situation was that of one in the general service of another (Arbour in the general service of the motor company as a mechanic) being transferred, with his consent, to the service of a third person (Ba-bin) so that he became the servant of the third person and ceased to be the servant of his general employer, in which case the general employer is not liable for the acts of the servant. For a concise statement of the law on this point, see Vol. 5 Blashfield’s Cyclopedia of Automobile Law and Practice, pp. 71-74, §§ 2941 and 2942. Of course, as is stated in the last paragraph of Section 2941, ‘a servant may have two employers at a given time under certain circumstances, and one owning or ordinarily controlling the use of an automobile may become liable for injuries caused by the negligence of another in charge thereof, though not exclusively his servant at the time of the accident.’ But such a situation is not presented here.”

Certainly, under the facts of this case it is not applicable to the case under consideration, as I have given, and understand the facts.

The case of Cali v. Cloverland Dairy Products, Inc., supra, merely cites the Hutto v. Arbour case and reiterates the doctrine laid down therein, which is not applicable to the case at bar.

The case of Spanja v. Thibodeaux Boiler Works, supra, was one in which the plaintiff and his associate were the owners of a boat, all of which were under contract to The Texas Company, and it was the duty of the plaintiff to transport machinery, supplies and employees of The Texas Company back and forth between the scene of drilling operations and Empire. A boiler of The Texas Company needed repairs and it engaged the Thibodeaux Boiler Works to make them and it was necessary to transport certain heavy machinery by means of plaintiff’s boat. During the loading of the machinery upon the boat, the plaintiff was assisting by attempting to guide an air compressor down the runway when it fell and struck him. The Court held that the plaintiff was an employee of The Texas Company and, naturally, was barred from any recovery in tort in so far as that company was concerned. It further held that the transferring of machinery to the boat was not the job of the plaintiff and was not the job of The Texas Company but was the job of the Thibodeaux Boiler Works and when, at the request of employees of that company, he undertook to assist them in that particular work he became an eru-ployee of their employer, the Thibodeaux Boiler Works. The Court stated that the principle was identical with that of the Baltimore & O. S. W. R. Company v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433, and stated [2 So.2d 675]: “We think ■that, similarly here, Spanj a became an -emergency or borrowed employee of the Thibodeaux Company. * * * ”

There is no question of an emergency or borrowed servant in the case at bar. For the present case to be similar to this case, Guillory, the regularly employed welder of the Hunt Tool Company would have had to be requested by Morris and Meredith to turn aside from the duties of his regular employment with the Hunt Tool Company and perform some duty for Morris and Meredith. Then Guillory, while performing these duties for Morris and Meredith, say, for example, in moving a piece of machinery would at that time be the emergency or borrowed employee of Morris and Meredith. For these reasons I do not think this case is applicable to the case at bar.

The case of Duke v. Dixie Bldg. Material Company, supra, was one in which the plaintiff was suing tor damages for personal injuries which resulted while he was in the employ of a contractor and engaged in the laying of concrete foundations, and the driver of a concrete mixer truck belonging to -the defendant which was loaded with ready mixed concrete attempted to back the truck over the curb to the sidewalk and Duke was injured in the. backing process. The defendant as an alternative defense averred that there was no liability for the reason that at the time of the occurrence of the accident the driver of the truck was following the orders of the contractor in pouring the concrete and had become “pro hac vice” an employee of the contractor and thus a fellow servant of Duke, the plaintiff; that he had stepped out of character as cm employee of Dixie Building Material Compcmy, Inc. and had become the borrowed employee of the contractor. This special defense was based upon the fact that the contractor had ordered the ready-mixed concrete to be delivered on the job, and as the concrete was being used as a foundation for a brick wall and was quite long, the contractor found that it expedited his- work to have defendant’s truck, which was delivering the concrete, pour a portion of it at one part of the trench and then move and pour another portion several feet further along in the trench, rather than pouring it ail in one place. It was the theory of the defendants that it was only their obligation to deliver the concrete at one place and that since it was on the orders of the contractor and for his convenience that the driver of the truck was making the delivery in different places and was assisting in pouring the concrete under the orders of the contractor, in doing so he became “pro hac vice” an employee of the contractor. The Court held [23 So.2d 824]: “Here, however, it was the duty of Green, as, an employee of Dixie Building Material Company, to deliver the concrete and anything done by him in connection with that delivery was done as an employee of that company and not as a borrowed employee of the contractor, Moray.- The mere fa.ct that the contractor required Green to divide the load and to make two or more deliveries, each in a different place, did not alter the fact that in doing so the driver was merely delivering something which was being sold 'by his employer. We are aware of the fact that those companies which sell ready mixed concrete have la-rgely increased their business by pointing to the convenience of having the concrete delivered in a ready-mixed condition and in having it poured directly into the hole or form into which it is to set or harden. It would not do to permit it to be said that, although when such a delivery is made and the entire load is poured into one hole or form the delivering driver remains.the employee of the selling company, when the purchaser asks that the delivering truck be moved to two or more points, the driver after the first partial unloading of the truck, becomes the borrowed employee of the contractor merely because he is making the delivery a little more convenient for the contractor.”

Again it would appear to me that this case, insofar as the loaned or borrowed servant doctrine is concerned, is not applicable to the case under consideration. If anything, it supports the contention of the plaintiffs and is against the conclusions reached in the majority opinion. Guillory was engaged by the Hunt Tool Company as a skilled and expert welder to do nothing but welding. During the entire time that he was on the job at the Morris and Meredith drilling rig he did nothing but weld and at the time of the accident he was performing the duties for which he had been employed by the Hunt Tool Company and which were in the furtherance of its business and within the scope of his employment. He had not “stepped out” of character as an employee of the Hunt Tool Company. It was the duty of Guillory as an employee of the Hunt Tool Company to weld anything pointed out to him by Morris and. Meredith, and anything done by Guillory in connection with this welding was done as an employee; of the Hunt Tool Company and not as a borrowed employee of Morris and Meredith, Inc.

In Dixie Machine, Welding and Metal Works v. Boulet, supra, the plaintiff obtained :a contract for the erection of a smoke stack and in order to perform' their contract rented a crane with a sixty foot boom from the defendant. It is shown that the defendant rented out this machine to other persons doing heavy construction work. When the crane was delivered to the plaintiff, the defendant sent an operator for the reason that prior to that time he had been requested by the plaintiff to furnish a competent operator. The boom on the crane wás damaged while being used by the" plaintiff and the plaintiff filed suit to collect the ■ cost of these repairs, whereupon the defendant' reconvened for the charges for the rental of the crane and for the reimbursement of the wages and expenses incurred in connection with the operator. The Court stated [38 So.2d 550]:

“ * * * It is made very clear that in an operation of this kind the foreman or superintendent is in complete charge and that his orders must be obeyed. This foreman in this instance was Berniol, a regular employee of the Dixie Company. It is made clear also that, an operator of a crane, who, in this instance, was Zeagler, has no right to refuse to obey orders of the superintendent except that'if he'believes that the carrying out of the orders will endanger himself, he may refuse to carry them out. * * *

******

“ * * . - * If we are in error in holding that Berniol was entirely at fault and in not finding that Zeagler, too, might have been careless, we do not see that any dif-férent result would be brought about, for, as we view the evidence, it shows that Zeagler, during that entire operation, was the employee of the Dixie Company and was not the employee of Boulet.

“Zeagler was not a regular employee of Boulet * *

Therefore, this case differs from the case under consideration for' Guillory was the regular employee of the Hunt Tool Company and the foreman or superintendent of Morris and Meredith was not in complete charge of the welding and had no right to control the manner, method or details of the work, and the accident and damage in the present case was caused solely and proximately by the fault of Guillory, the regularly employed welder of the Hunt Tool Company and, in my opinion, under the facts, the welder and helper were not hired to nor the equipment rented by Morris and Meredith. It is my opinion that under the terms of the contract and agreement between Morris and Meredith and the Hunt Tool Company and the facts as contained in this record that the Hunt Tool Company was an independent or subcontractor and as such was a third party as referred to in Section '7 of the Compeiisation Act, and could be sued in tort by the plaintiffs herein as the accident and resulting damages were caused by the negligent act of the employee of the independent contractor, Hunt Tool Company, and that plaintiffs are entitled to recovery.

For these reasons, I respectfully dissent.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    Stanford BENOIT v. HUNT TOOL COMPANY et al.
    No. 3212.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Bass & Brame, Lake Charles, for appellant.
    St. Clair Adams & 'Son, New Orleans (P. A. Bienvenu, New Orleans, of counsel), for defendant.
    Patin & Patin, Lake Charles, for war-rantor.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Benoit, Holloway and Anchor Casualty Company v. Hunt Tool Company, La.App., 45 So.2d 512, the judgment appealed from is affirmd.


text:
    Joseph HOLLOWAY v. HUNT TOOL COMPANY et al.
    No. 3213.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Bass & Brame, Lake Charles, for appellant.
    St. 'Clair Adams & Son, New Orleans (P. A. Bienvenu, New Orleans, of counsel), for defendant.
    Patin & Patin, Lake Charles, for war-rantor.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Benoit, Holloway and Anchor Casualty Company v. Hunt Tool Company, La.App., 45 So.2d 512 the judgment appealed from is affirmed.

ELLIS, J. (Reasons given in Benoit case, 45 So.2d 512), dissenting.


text:
    ANCHOR CASUALTY COMPANY v. HUNT TOOL COMPANY.
    No. 3214.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Patin & Patin, Lake Charles, for appellant.
    St. Clair Adams & Son, New Orleans (P. A. Bienvenu, New Orleans, of counsel), for appellee.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Benoit, Holloway and Anchor Casualty Company v. Hunt Tool Company, La.App., 45 So.2d 512, the judgment appealed from is affirmed.

ELLIS, J. (Reasons given in Benoit case, 45 So.2d 512), dissenting.


author: TALIAFERRO, Judge.

text:
    BLANCHARD v. SMITH. SMITH v. BLANCHARD.
    Nos. 7481, 7482.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Gahagan & Pierson, Natchitoches, for appellant.
    J. D. Rusca, Natchitoches, for appellee.
   TALIAFERRO, Judge.

As'a decision o.f the questions involved in these two cases depends upon an interpretation of Act No. 39 of 1932 in conjunction with Art. 3547 of the Civil Code, they were, consolidated for argument and decision in this Court.

On November 24,' 1928, judgment was rendered and signed by the Judge of the Tenth Judicial District Court of Louisiana, in favor of J. H. Blanchard, and against Moody Smith, for $1,102.22. The judgment was not paid in whole or part, and on November 23, 1938, Blanchard filed suit in said Court to have the judgment revived. However, citation thereon did not issue until March 10, 1939. It, with copy of petition, was served on Smith on March 22, 1939. He made no appearance. Judgment of revival was signed May 10, 1939.

Moody Smith, the defendant, according to the record, died intestate and without issue or forced heirs, on August 20, 1947. He left a widow, Merdas Smith, who is his sole heir.

On February 19, 1949, Blanchard instituted suit to again have the judgment revived. . Merdas Smith, as surviving widow and sole legal heir of the deceased judgment debtor, was impleaded as defendant. This demand was met by a plea of peremption. It is predicated upon the contention that the judgment of revival of May 10, 1939, is absolutely null, void and of no effect ab initio because it was based upon a citation issued and served more than ten years after the .original judgment was signed by the Court, and which had, therefore, ceased to exist as a judgment.

The plea was sustained and judgment dismissing the suit was signed on November 21, 1949. Plaintiff appealed. This is suit No. 7481 on the docket of this Court.

On July 9, 1949, Blanchard caused execution to issue on the judgment and thereunder was seized the homestead in Natchi-toches Parish, owned and occupied by the deceased and his said wife at date of his death. To arrest sale of the seized property Merdas Smith applied for preliminary injunction, and attacked the validity of the judgment (under which the writ issued) on the ground that it had prescribed prior to the date of service in the revival- suit. There was judgment for the plaintiff in this injunction suit as by her prayed. Defendant in injunction appealed. .This suit carries No. .7482 on docket of this Court.

Solution of the question tendered in each case turns upon whether the laws relative to interruption of the current of prescription liberandi causa, or those pertinent to the peremption of rights and causes of action apply, although the appellee advanced as a defense peremption in one case and prescription in the other. The Lower Court, in written reasons for judgment, in the injunction suit decided that the judgment had perempted, and ruled likewise in the other case.

Prior to the adoption of Act No. 274 of 1853, money judgments were imprescripti-ble. This act, while fixing the life of such a judgment at ten years from rendition, also prescribes the method by which the judgment’s life could be extended. It was embodied in the Civil Code of 1870 as Article 3547, and, so far as necessary to this discussion, reads: “Provided, however, that any party interested in any judgment may have the same revived at any time before it is prescribed, by having a citation issued according to law, to the defendant or his representative, from the court which rendered the judgment, unless defendant or his representative show good cause why the judgment should not be revived * *

Each revival continues the life of a judgment for ten years. This article of the Code was amended by Act No. 278 of 1936 and again by Act No. 73 of Í942, but neither amendment changed the part quoted above.

Act No. 39 of 1932 worked radical changes with respect to the interruption of prescription of causes of action sought to be enforced judicially. It provides: “That the filing of a suit in a court of competent jurisdiction shall interrupt all prescriptions affecting the cause of action therein sued upon, against all defendants, including minors and interdicts.”

The method for reviving a money judgment prescribed in Article 3547 of the Civil Code is exclusive. In this respect this, the highest form of liquidated indebtedness, is entirely in' a class to itself. There is no other way to prevent its extinction. See: Fritz Jahncke, Inc., v. Fideiity Deposit Company of Maryland et al., 172 La. 704, 135 So. 32; Bailey v. Louisiana & Northwest Railway Company et al., 159 La. 576, 105 So. 626.

And an action to revive is not a new suit, but a part of the original suit. See: Scherrer v. Caneza, Sheriff, et al., 33 La.Ann. 314; Jaubert Bros., Inc., v. Landry La.App., 15 So.2d 158.

It is argued - by appellant’s counsel that even though it be conceded that prescription was not interrupted by the filing of the first suit to revive, and, further, in order to accomplish interruption, service of citation and petition had to be made within the ten year period, all this has become immaterial and moot in view of the fact that service was actually made on the judgment debtor (although after the ten year period had elapsed) and he did not plead the prescription prior to.judgment of revival being rendered against him, and signed.

This position is well founded if the laws relative to prescription apply. Whether or not a debtor wishes to avail himself of the benefit of an accrued prescription, in a given case, is a matter that addresses itself to him personally. A court is without authority to supply on a debtor’s behalf such a plea. Civil Code, Article 3463. And when the debtor allows judgment to go against him without tendering the plea, and the time for appealing has expired, the door is thereafter closed against him doing so. Code of Practice, Article 346.

But the appellee argues and contends that the 1932 act has no application to this sort of case, because its purview is general, whereas Article 3547 is special in its operative effect and must be followed literally. Pursuing this premise, it is argued that said article specifically ordains the steps that must be followed as a condition precedent to procuring a judgment of revival, viz.:. that citation isme prior to the expiration of the primary ten year period, which was .not done in this cuse.

It is further argued on appellee’s behalf' that since Act No. 39 of. 1932 does not apply, and the imperative requirements of said codal article .were not followed prior to the expiration o'f the primary period of ten years, the judgment perempted, ceased to exist, and that issuance of citation and service upon the judgment debtor thereafter was wholly abortive of any legal effect or result. To support by analogy this argument, it is said that a judgment, like a conventional mortgage, when barred by the statute of limitations, perempts, but does not, strictly speaking, prescribe.

Article 3547 of the Civil Code is one of four that fall under the title “Of The Prescription of Ten Years”. Evidently the framers of the Civil Code and the Legislature that adopted it, believed, by the incorporation of this article therein, a prescription of ten years as to money judgment was thereby established. Had not provision been made for revival of such judgments, their life would have been at a definite end at the expiration of the ten year period.

What was meant and intended by the words “by having a citation issued according to law”, was that the citation should issue upon a petition for revival, and be served with copy, of the petition as in other suits. As the law was, until the passage of the Act of 1932, service of the petition and citation must have been made before the expiration of the primary ten year period or else the judgment would become extinguished by prescription. At that time the simple act of issuing a citation (which could be done only after the filing of the petition) without following same by service, would have been without effect as a means of extending the life of the judgment beyond the ten year period.

In the case of Geisenberger v. Cotton, 116 La. 651, 40 So. 929, 930, which involved the revival of a judgment, the Court said:

“It is the judicial demand which interrupts prescription, and it suffices if the plaintiff in an action of revival has any color of right or interest for himself or others. • •
“Prescription will be interrupted by a judicial demand, though the plaintiff be nonsuited on the merits or the court be without jurisdiction. The interruption inures to the benefit of all parties in interest. Flower v. O’Connor, 17 La. 213, 219; Blanc v. Dupre, 36 La.Ann. 847.”

Attention has been called to the language of the 1932 act which says that the filing of suit “shall interrupt all prescriptions affecting the cause of action therein sued upon”, from which it is argued that this has reference only to the obligation which originally formed the basis of the suit; that thereafter this cause of action passed out of the picture and left nothing (no cause of action) for prescription to operate against. We think this argument without solid foundation. The right conferred upon the judgment creditor by the Code to keep alive his judgment by following a well-defined procedure is as much a cause of action as was the right to petition the court for judgment on the original obligation. It is true the original obligation ceased to exist, but a new form of one came into existence by court action.

We do not concur in the contention that the 1932 Act, because of its general character, does not apply to an action to revive a judgment!

Prior to the passage of the 1932 Act, when a suit of any character was filed with the Clerk of Court, it wás his duty, as now, to immediately prepare a copy of the petition, issue citation to the defendant and deliver both to the Sheriff for service. Service of one without service of the other produced no legal effect, and until legal service of both the current of prescription on the obligation forming the suit’s basis, was not interrupted. This is the course intended by the codal article, the difference, of course, being that now the failure of either officer to perform his ministerial duty will not unfavorably affect the plaintiff since he has by filing suit with the proper officer, done all that the law requires of him to preserve his rights.

There are many cases in the jurisprudence of this state wherein revival of a judgment is sought. Invariably, the time element mentioned in them is denominated prescription and not peremption. Analogous to this discussion is Stroud v. Standard Oil Company of New Jersey, La.App., 41 So.2d 539.

In Fritz Jahncke, Inc., v. Fidelity Deposit Company of Maryland et al., supra, it was held, as reflected from the syllabus, to-wit: “Only [way] judgment creditor may prevent * * * judgment from prescribing * * * is by filing suit to revive * * * before [judgment] is prescribed. (Civ.Code, art. 3547).”

Therefore, for the reasons herein assigned, the judgment in case No. 7481, on the docket of this Court, being No. 26,922 on the docket of the lower court, appealed from, be and the same is hereby annulled, avoided and reversed.

It is further ordered, adjudged and decreed that there be judgment herein in fav- or of the plaintiff, J. H. Blanchard, and against the defendant, Merdas Smith, reviving the judgment first rendered against Moody Smith, and signed on the 24th day of November, 1928, by the Honorable J. F. Stephens, Judge of the Tenth Judicial District court of Natchitoches Parish', as revived by judgment of said Court on May 10, 1939, in the following words and figures, to-wit:

“It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, J. H. Blanchard, and against the Defendant Moody Smith, in the full sum of Eleven Hundred and Two and 22/100 Dollars ($1,102.22) with five per cent interest per annum from June 16th, 1928 until paid, and all of cost of this suit.

“Thus rendered and read and signed in open court ,on this 24th day of November 1928.

“/s/ Judge J. F. Stephens

“Tenth Judicial District Court.”-

And giving to said judgment, as revived hereby, full force and effect for ten years from-date of finality of this decree.

It is further ordered that defendant Mer-das Smith pay all costs of suit.

And in suit No. 7482, on the docket of this Court, being No. 27,094% on the docket of the lower Court, for the reasons herein assigned, the judgment appealed from is annulled, avoided' and reversed. There is now judgment in favor of the defendant, J. H. Blanchard, and against the plaintiff, Merdas Smith, dissolving the preliminary writ of injunction issued herein and dismissing the suit at appellee’s cost.


author: REGAN, Judge.

text:
    BUISSON v. PRESTIA.
    No. 19345.
    Court of Appeal of Louisiana. Orleans.
    April 10, 1950.
    Robert J. Pitard, New Orleans, for appellant.
    Harry R. Cabral and William M. Campbell, New Orleans, for appellee.
   REGAN, Judge.

Plaintiff, Harry Buisson, initiated this suit against the defendant, Joseph Prestia, for malicious prosecution,, in the amount of $1,758.00 for. damages, incurred when plaintiff allegedly suffered “humiliation, mental anguish, annoyance” and his name was defamed by virtue of an affidavit filed by defendant in the Recorders’ Court of the City of New Orleans, charging plaintiff with “petty larceny”.

Defendant filed an exception of vagueness to plaintiff’s petition which was overruled by consent and, subsequently, in effect, answered by way of a general denial and specifically pleaded that defendant “made these charges on the advice of the Clerk of the Recorders’ Court and that he made the charges with just and probable cause and without malice”. Defendant further answered and maintained that he believed that plaintiff had taken certain kitchen utensils, valued at $11.25, from his apartment.

From a judgment in favor of plaintiff awarding him damages in the amount of $758.00, defendant prosecutes this appeal.

The record reveals that plaintiff, a provisional police officer, rented, presumably from month to month, a furnished apartment from defendant, on September 11th, 1946, the contents of which were inventoried and the correctness thereof verified by plaintiff’s signature. Plaintiff remained in the apartment until July 11th, 1947, at which time, he moved. Defendant being absent from the City, plaintiff surrendered the keys to defendant’s sister. On or about July 15th, 1947, defendant returned to the City and a short time thereafter, the exact time being disputed by both litigants, the defendant caused the contents of .the apartment to ¡be reinventoried and allegedly ascertained that kitchen utensils, valued at $11.25, were missing from the apartment. While the record is vague, it appears that defendant experienced some difficulty in locating plaintiff’s address, and approximately two weeks elapsed before he called at plaintiff’s home on July 23rd, 1947, between seven and eight o’clock p. m. and attempted to effect a settlement. Defendant’s version of this conversation is to the effect that plaintiff told him “if you don’t get away from here, I’m going to put you in jail”. Plaintiff’s version is that he was not interested and advised defendant to leave. In any event, the conversation abruptly terminated and defendant proceeded to the Third Precinct Police Station, where he complained to Sergeant Reilly that plaintiff “had moved from his apartment and that a number of kitchen utensils were missing”, and that he had attempted to discuss the matter .with plaintiff without success. Thereupon, Sergeant Reilly, apparently endeavoring to amicably effect a settlement between plaintiff and defendant, sent defendant, accompanied by two police officers, .to plaintiff’s home. The record is vague as to the nature of the conversation that ensued on this occasion, however, it does reflect that defendant and the two police officers, about one-half hour later, returned to the Third Precinct, and plaintiff, accompanied by his wife, voluntarily followed in his own car. ' Sergeant Reilly testified “they more or less turned it over to me to handle. It seemed that they could not handle it outside or come to any agreement. So I heard both sides of the story”. Sergeant Reilly stated that defendant wanted plaintiff charged with the theft of the kitchen utensils, which he refused to do and advised defendant to see his lawyer or consult the affidavit Clerk of the Recorders’ Court. Sergeant Reilly terminated his testimony by stating that plaintiff was not placed under arrest and was detained at the Third Precinct “only to the extent of my interview with him. I would say ten or fifteen minutes”.

The following morning, on July 24th, 1947, defendant proceeded to the Municipal Court and there, in the presence of the Deputy ¡Clerk, Louis E. Nelson, swore out an affidavit, charging plaintiff with petty larceny of kitchen utensils valued at $11.25. Plaintiff was subsequently arraigned and placed under bond. Defendant contends that he made this charge against plaintiff on the advice of the Deputy Clerk, Nelson, which contention is vehemently denied and disputéd by Nelson. Subsequently, the charge of petty larceny was heard by the judge of the Municipal Court, and defendant testified (a transcript of the testimony is contained in the record) “I can’t say he stole them” and thereupon the case was dismissed by the Court.

The. only question posed by virtue of the pleadings herein is one of fact and that is whether defendant, in initiating the charge of petty larceny against plaintiff in the Municipal Court, was actuated by malice and whether he acted' without probable cause?

As to what constitutes probable cause in the sense in which the term is used in actions for malicious prosecution, many definitions, differing more or less rhetorically, or by virtue of a difference in the association of ideas, are to be found in the decisions of our Courts. A definition possessing the characteristics of mathematical precision; or sufficient to comply with every conceivable test, would be impossible to supply, inasmuch as the comprehensive legal idea manifested by the terminology “probable cause” is not to be gathered from a mere definition. However, notwithstanding the different illusive and shaded words and phrases used in many judicial definitions, there appears to be a fundamental accord among them all to substantiate the assertion that the yardstick, or standard of conduct, for initiating or pursuing any civil or criminal proceeding, is that of a reasonable or ordinarily prudent man placed in the same situation as the defendant. That is, if a reasonable man would have believed and acted, under the circumstances, as the defendant did, there would be probable cause, otherwise not.

Assuming arguendo, that the kitchen utensils in question were missing from the apartment when defendant made an inventory approximately two weeks after plaintiff’s departure, and conceding that civil liability may have attached to plaintiff, we can then pass to the consideration of whether defendant, in view of these assumptions, and the chain of circumstances that followed, had probable cause for his subsequent actions in charging plaintiff with petty larceny.

The record reflects that defendant, on or about July 23rd, 1947, between seven and eight o’clock p. m. proceeded to plaintiff’s home to discuss the missing kitchen utensils and thereupon a dispute e.nsued which afforded defendant no satisfaction. Leaving plaintiff’s home, defendant-proceeded to the Third Precinct Police Station where he related^ his story to Sergeant Reilly. Following this narration plaintiff was requested to come to the Third Precinct at which time Sergeant Reilly “heard both sides of the story”,- and advised defendant that there was not sufficient evidence for the police to charge plaintiff with the theft of the kitchen utensils, and that he should' see his lawyer because, in his opinion, the former occupant of the apartment, was civilly but not criminally responsible for the allegedly missing articles. Defendant, through his persistence, conveyed to Sergeant Reilly that he was dissatisfied with the results obtained"through the police, and deffendant was then advised to consult the “.Affidavit Clerk” of the Municipal Court, which defendant did and which resulted in the filing of a charge against plaintiff of petty larceny.

It occurs to -us that an ordinarily reasonable and prudent man would not have initiated these proceedings in the Municipal Court, especially after -defendant’s interview with Sergeant Reilly, and it is at this point, if not -before, that defendant ceased to act with probable cause in attempting to charge plaintiff with petty larceny.

As to what constitutes malice, it is not necessary to prove any actual spite, ill-will or grudge for ‘one having no ill-will against another may, notwithstanding, be guilty of the malicious prosecution of him.

That the defendant was actuated by malice is also an inference which may be drawn from proof of the lack of probable cause.

• In our opinion the filing of an affidavit in the Municipal Court, charging-plaintiff with petty larceny, for the purpose, as admitted by defendant,- of compelling the person prosecuted to pay a debt or to turn- over property in his possession, constitutes a malicious act such as will support an action for malicious prosecution.

The reports of the Supreme Court and the -Courts of Appeal are replete with cases establishing-the rule that, where there is an acquittal, he who has instigated the prosecution is liable unless he acted with probable cause and without malice. In view of the innumerable cases enunciating this rule of law, we think it unnecessary to cite them.

In our.. opinion the award of damages of $75,8.00 in this case was excessive. We realize,, of course, that it is difficult to place a monetary value upon the suffering, humiliation and embarrassment sustained by- a. plaintiff and we have, therefore, given consideration to several' cases in which awards have been made for .humiliation and embarrassment caused by malicious prosecution or false imprisonment.

“In Sargent v. Polar Bar Ice Cream Co. Inc., La.App. 196 So. 541, we allowed only $150, but there the plaintiff was arrested without any unusual noise or disturbance, and there was no crowd congregated. In fact, plaintiff was permitted to complete the sales which he was negotiating with two customers. He was put into a cell for an hour and a half and then transferred to another precinct station where he was not put into a cell, and where he remained only abount fifteen or twenty minutes before making bond and being released.

“In Barrios v. Yoars, La.App., 184 So. 212, there was no aggravating circumstances and no actual incarceration, and $200 was allowed. In Buchert v. Schumacher, 166 La. 111, 116 So. 718, $200 was allowed, but there was never any actual arrest. In Campbell v. Deville, 163 La. 575, 112 So. 491, only $100 was allowed, 'but there was only a constructive arrest. The plaintiff was never taken into custody. In Hunter v. Laurent, 158 La. 874, 104 So. 747, only $200 was allowed, but it was shown that the plaintiff was not arrested by police. He heard that a warrant had been issued for his arrest and he voluntarily surrendered and remained in custody from eight to ten hours when he was released on bond.” Dauphine v. Herbert, La.App., 37 So.2d 829, 832.

Taking these awards into consideration and bearing in mind that plaintiff was never arrested, and only voluntarily detained by the police for ten or fifteen minutes, and that he suffered no great humiliation, mental anguish and defamation of his name, we are of the opinion that the award of damages should be reduced from the sum of $758.00 to the sum of $250.00.

There is evidence contained in the record to the effect that plaintiff and his counsel agreed upon a fee of $250.00 for resisting the charge filed by defendant in the Municipal Court and we, of course, have no doubt that plaintiff considered this a reasonable fee, however, we are of the opinion that the facts divulged herein do not warrant a judgment for the plaintiff of sufficient amount to compensate him for both 'his damages and attorney’s fee.

For the reasons assigned the judgment appealed from is amended by reducing the amount of the award from $758.00 to $250.00 and as thus amended, it is affirmed.

Amended and affirmed.


author: ELLIS, Judge.

text:
    BENCAZ et al. v. BECKENDORF et al.
    No. 3231.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.

      Weiss & Weiss, New Orleans, Leonard E. Yokum, Hammond, for appellants.
    Joseph A. Sims, Hammond, for plaintiffs.
    Robt. C. Taylor, Baton Rouge, for in-tervenor.
   ELLIS, Judge.

Plaintiffs sued Edward Beckendorf and "his alleged insurance carrier for personal injuries and property damages suffered by them as the result of an automobile collision which occurred on the 19th day of December, 1946 at about 12:00 o’clock noon, on U. S. Highway 51 in the Town of Ponchatoula, Louisiana, and near , a place ¡of business in said town known as “Max’s Blue Room.”

The Western Casualty and Surety Company filed an intervention in which it alleged that it wrote an insurance policy in favor of plaintiff Bencaz upon the 1946 Plymouth Sedan which was owned and being driven by the said Bencaz at the time of the collision referred to, and under the provisions of the policy it had paid to Ben-caz $400.00 and had secured a subrogation for this amount, and, therefore, prayed for judgment against the defendants in solido for said amount.

To the petition of intervention the defendant insurance company filed an exception of no right of action and, alternatively, no cause of action. The defendant, Beck-endorf, filed an exception of misjoinder of parties plaintiff, misjoinder of causes of action, as well as one of lis pendens.

The defendants filed answer on May 9, 1949 denying the material allegations of plaintiffs’ petition and further answered that the defendant insurance company had issued an insurance policy on a truck owned by defendant Beckendorf which insured him only against any loss or losses chargeable by third persons against him as the result of the operation of said truck and the said truck only, and on the day of the accident he was driving a Ford car not covered by the policy and further specially plead contributory negligence on the part of the plaintiffs.

On May 23, 1949 the defendant insurance company filed a plea of res judicata on the following grounds: .

“That in the matter entitled ‘Iowa Mutual Liability Insurance Company, a corporation, versus Edward Beckendorf, Leslie B. Ben-caz, Ernest S. Davis, and Ernest E. Davis,’ No. 1994, Civil Action, of the United States District Court for the Eastern District of Louisiana, New Orleans Division, on May 20th, 1949, the Court rendered and signed a judgment in accordance with an order entered on May 11th, 1949, in favor of Iowa Mutual Liability Insurance Company, plaintiff in that .action, for a declaratory judgment; that said judgment ordered, adjudged and decreed that no coverage or liability to Iowa Mutual Liability Insurance. Company exists under automobile Policy No. 190319, issued by said Iowa Mutual Liability Insurance Company to Edward Beckendorf, for an accident which occurred on or about December 19th, 1946j while said Edward Beckendorf was driving a Ford automobile; that Iowa Mutual Liability Insurance Company is under no duty or obligation to appear or to defend any action, claim or suit on behalf of Leslie B. Bencaz, Ernest S. Davis and/or Ernest E. Davis, or to assume any liability for the acts or omissions of said Edward Becken-dorf while driving said Ford automobile that none of the defendants herein, Edward Beckendorf, Leslie B. Bencaz, Ernest S. Davis and Ernest E. Davis, has any right, basis or cause of action under said policy as against plaintiff, Iowa Mutual Liability Insurance Company; that the present action is founded on the causes of action that gave rise to said declaratory judgment; that the said declaratory judgment is a final judgment; that a true copy of said judgment is attached hereto and made a part hereof;”

The exceptions were referred to the merits and the plea of res judicata was overruled.

The case was tried and resulted in a judgment as prayed for, in favor of the plaintiffs, Leslie B. Bencaz, Ernest E. Davis, and Ernest S. Davis.

Prior to the beginning of the trial it was agreed between the plaintiffs and defendants and the intervenor, subject to the reservation of all rights of all the parties to the'Suit, that any judgment rendered in the case' for property damages resulting to the automobile of Mr. Bencaz shall be in favor of Mr. Bencaz to the extent of l/9th thereof and in favor of the Western Casualty and Insurance Company to the extent of 8/9th thereof. Despite this agreement there is no judgment for or against the intervenor and they are not even mentioned in the judgment. Therefore, in effect their demands have been refused.

The. judgment was signed on June .30, 1949 and Court went into vacation on July 1, 1949. No appeal was taken by the defendant Edward Beckendorf. The defendant insurance company by petition and citation prayed for an order of suspensive and devolutive appeal and also prayed for service and citation upon Leslie Bencaz, Ernest S. Davis and Ernest E. Davis, the only parties named in the judgment. On the day that the case was argued in this Court counsel for plaintiffs and the defendant insurance company and the intervenor entered into the same stipulation as previously in the District Court, that any judgment in favor of Bencaz for any damages to his automobile shall be-rendered in favor of Bencaz for l/9th and in favor of the intervenor for 8/9th thereof.

Counsel for intervenor,' despite the fact that there is no judgment in their favor and they have not appealed, filed a motion to dismiss the appeal on the ground that judgment'was rendered on June 30, 1949, which was' the' last day of the term of the Twenty-first Judicial District Court, and that the appeal was by motion signed July 18, 1949 which was more than ten days, exclusive of Sunday, after the judgment, and second, that no, citation of in-tervenor was prayed for or served and, •therefore, the intervenor is not before the Court although a necessary party to the decision herein. Even if they had the right to file such a motion, the judgment was rendered and signed on June 30, 1949 which was a Thursday, and the delay for the appeal did not start on that date but started to run after July 7th, the date on which the judgment was due to have been signed. Between June 30th and July 7th there intervened a Saturday, a Sunday, Monday, the Fourth of July which was a legal holiday, and three judicial days. The effective date of the signing of the judgment was July 7th. See State ex rel. Wellman v. Bell, 142 La. 662, 77 So. 493; Bonnelucq v. Bernard, La.App., 29 So.2d 486; Caspari v. Osborne, 169 La. 983, 126 So. 500. Therefore, computing ten days exclusive of Sundays from July 7th, the last day for obtaining the order of appeal and filing the appeal bond was July 19, 1949, and as-the order was signed and the bond furnished on July 18th, the motion to dismiss on this ground would not be well founded.

As to the second ground, it is not well founded, as the intervenor should have requested the District Court to render a judgment in its favor in accordance with the stipulation. Until a judgment was rendered in favor of the intervenor, the defendant insurance company was not required to .cite it. The appellant prayed for service and citation of all parties in whose favor the judgment was rendered.

The plea of res judicata was well founded and should have been sustained by the District Judge. See Picard v. Mutual Life Ins. Co. of N. Y., 212 La. 234, 31 So. 2d 783.

It is, therefore, ordered that there be judgment in favor of defendant, Iowa Mutual Liability Insurance Company, dismissing plaintiffs’ suit at their cost, and as thus amended the judgment be affirmed.

      . No opinion for publication.


author: JANVIER, Judge.

text:
    QUAKER CITY FIRE & MARINE INS. CO. et al. v. DEVROUAX.
    No. 19406.
    Court of Appeal of Louisiana. Orleans.
    April 10, 1950.
    Montgomery, Fenner & Brown, New Orleans, Arthur B. ■ Hammond, Jr., Baton Rouge, for plaintiffs-appellants.
    Theodore H. McGiehan and Michael H. Bagot, New Orleans, for defendant and plaintiff in reconvention, appellee.
   JANVIER, Judge.

This litigation results from an automobile collision which took place at about 5:30 P. M. on December 24tH, 1947, in the intersection of Second and Magnolia Streets, in New Orleans. The two automobiles, which were involved/ were a 1946 Dodge delivery truck owned by Belmont Haydel, who does business as Haydel Flower Shop, and which was being operated by Dallas Broussard, an employee of Haydel, and a 1938 International truck, which was owned and operated by Paul Devrouax. Both trucks were damaged and Quaker City Fire & Marine Insurance Company having issued to Haydel a policy of collision insurance with what is termed a Fifty Dollar Deductible Clause, and having paid Haydel the cost of repairing his truck after a deduction of $50.00, and having obtained from Haydel a subro-gation to any rights which he might have against Devrouax, joined with Playdel in bringing this suit against D.evrouax.

Plaintiffs alleged that the collision resulted from the negligence of Devrouax, and Haydel prayed for judgment for $50.00 and Quaker City Fire & Marine -Insurance Company prayed for judgment for $532.75; Devrouax answered, denying all negligence on his part and averring that the accident had been caused by the negligence of Brous-sard, who was operating the Haydel truck. Devrouax, then assumed the position of plaintiff in reconvention and, averring that the collision had been caused by the negligence of Broussard, prayed for judgment in reconvention against Haydel in the sum of $1192. 58, of which he claimed $322.58 as the cost of repairing his truck and $870.00 as his loss of earnings due to being deprived of the use of his truck for a period of thirty weeks.

There was judgment in the Civil District Court for the Parish of Orleans dismissing the suit of Quaker City Fire & Marine Insurance Company and Haydel, and, on the reconventional demand there was judgment in favor of Devrouax and against Haydel in the sum of $322.58. Haydel has appealed devolutively and suspensively.

Though Devrouax neither appealed nor answered the appeal, his counsel, in brief and in oral argument, assert that the judgment in his favor should be increased and that he should be awarded a substantial amount to represent his loss of earnings due to his having been deprived of the use of his truck. Of course, no increase or amendment in his favor can be granted since no answer to the appeal was filed and no independent appeal was taken.

As we said in Giardina v. D’Antoni, 1 So. 2d 706, 707: “The defendant has neither appealed nor answered plaintiff’s appeal. Consequently, this court is without right or power to reverse or amend the judgment in defendant’s favor. Westwego Canal & Terminal Company, Inc. v. Louisiana Highway Commission, 189 La. 870, 181 So. 429; Pecoraro v. Kopanica et al., La.App., 173 So. 203; Dupuy v. Godchaux Sugars et al., La.App., 184 So. 730; Douga v. Ancona Baking Company, Inc., La.App., 193 So. 271; Peppers v. Toye Bros. Yellow Cab Company et al., La.App., 198 So. 177.”

The Haydel truck was being driven up Magnolia Street and the Devrouax truck was on Second Street, going towards the Mississippi River. On Magnolia Street, at the time, there were street car tracks. Since there is no evidence to the contra'ry, we will assume that since there were street car tracks on Magnolia Street, street cars were being operated over those tracks. Consequently, the provisions of Ordinance 14,104, C.C.S., became applicable. This ordinance amends paragraph (b) of Section 2 of Article VII of Ordinance No. 13,702, C. C.S., which is the General Traffic Ordinance of the City of New Orleans. Section 2(b) of Ordinance No. 14,104 reads as follows : “Every operator of any street car or bus, either gas or electric, used to carry passengers or school children, or any self-propelled or any other vehicle or pedestrian travelling on any street intersecting any other street, on which street cars or trains are routed by any Ordinance of the City, shall come to a full stop where the street on which they are travelling meets the prolongation of the nearest property line of such other street they are about to enter or cross, and shall listen and look for approaching street cars and trains before crossing or turning into said street, subject, however, to the direction of any traffic control sign or signal or any police officer at such intersection.”

It is clear then that there was an absolute duty in Devrouax to stop and look both ways before entering that intersection. In addition, it is shown that the Police Department had erected on Second Street a traffic control sign with the word “Stop” on it. It is shown, however, that sometime prior to the occurrence of the accident which gave rise to this case, that sign had been knocked down.

As against Devrouax, it is charged that he was driving his car at a fast and reckless speed; that he failed to keep a proper lookout, and failed to come to a stop before entering the intersection. It is especially alleged that, immediately after the accident, he admitted that it had been caused by the fact that the brakes of his truck failed to work, and it is also charged that he agreed to pay for the damage to the Haydel truck.

On the other hand, it is charged by Dev-rouax, who denied all negligence on his part and denied that he had admitted that he had been at fault, that Broussard, the driver of the Haydel truck, was at fault in that he was proceeding at a “speed of 40 miles per hour on wet streets,” and in that he did not have his truck under control.

The records shows rather conclusively that Broussard, the driver of the Haydel truck, was operating it at a speed of approximately 25 or 35 miles an hour and this in spite of the fact that the street was wet. Furthermore, Broussard admitted that he did not see the other truck of Devrouax until it was about five feet away. Since he was on a street on which there were street car tracks he was warranted in assuming that no vehicle would enter the intersection from Second Street without coming to a full stop. Still it is settled that it does not follow that he could enter the intersection himself at an excessive speed and without looking for possible traffic on the other street. As we have said, we think that Broussard was at fault in entering the intersection without looking for traffic on the other street, and it necessarily follows that this negligence on his part, having had casual connection with the ensuing accident, prevents recovery by the Quaker City Fire & Marine Insurance Company and by Hay-del.

On the other hand, however, we are not impressed by the testimony of Dev'rouax, nor by that of the other witnesses produced on his behalf. He himself says that after stopping and looking in both directions, he started his car and entered the intersection at a speed probably not as great as five miles an hour. If he entered at that speed, and it is hard to believe that it was so slow as that, he was travelling at about seven and one-half feet per second and therefore in about two seconds reached the spot at which he was struck. In other words, the Haydel truck was only two or possibly three seconds away from him when he entered the intersection. It could not have been so far away as to justify his conclusion that he “had a chance to get across.” We think, on the contrary, that he took a chance, which in fact he did not have. Furthermore, if his car was moving at only five miles per hour, or possibly a little less as he says, he could have stopped it in a very few feet and could have permitted the Haydel car to pass safely in front of him, if he was looking and if he saw the Haydel car, as he says he did. We realize, of course, that when one is looking at a car coming “head-on” it is difficult to determine its exact speed, but we are certain that if a car, even approaching “head-on”, is going at so high a rate of speed as forty miles an hour, it can easily be realized that it is dangerous to cross in front of it when it is already so near that it can reach the intersection in from two to three seconds. If Devrouax looked and saw the Haydel car as he says he did, it is certain that it was so near to him that he should not have attempted to cross.

The testimony of Devrouax’s supporting witness does not impress us.

Our conclusion is that had Dev-rouax been careful to any extent at all, the accident would not have occurred. It necessarily follows that since his contributory negligence played a part in causing his damage, he cannot recover.

The judgment appealed from, in so far as it runs in favor of defendant and plaintiff in reconvention, is annulled, avoided and reversed and the reconventional demand is dismissed at the cost of plaintiff in recon-vention; in all other respects the judgment is affirmed at the cost of plaintiffs and appellants.

Affirmed in part; reversed in part