author: PONDER, Justice.

text:
    217 La. 406
    RIGGS v. AMERICAN SURETY CO.
    No. 39311.
    Supreme Court of Louisiana.
    April 24, 1950.

      Irion & Switzer and Harry A. Johnson, Jr., Shreveport, for plaintiff'and appellant.
    Browne, Browne & Rodenheimer, Shreveport, for defendant and appellee.
   PONDER, Justice.

The plaintiff brought suit against the defendant seeking to recover $2,782.29 with S'% per annum interest and 10% as attorneys fees. The lower court rejected his demand and he has appealed.

In this suit the plaintiff is seeking to recover under three surety bonds in the amount of $2,000.00, $2,000.00 and $1,-000.00 respectively insuring the plaintiff against larceny, theft, embezzlement, forgery, misappropriation, wrongful abstraction, -wilful misapplication and other fraudulent or dishonest acts that might be committed by Lawerence Ebarb, Fred Rivers, and Henry F. Martin. The basis of the suit is that Ebarb, Rivers and Martin committed fraudulent and/or dishonest acts causing the plaintiff a loss of $1,082.29, $1,-000.00, and $700.00 respectively. After filing various pleas to the suit the defendant answered denying any liability under the bonds. The evidence shows that the plaintiff advanced Ebarb $1,000.00; Rivers $1,-000.00 and Martin $700.00 to buy ties for him and that the parties were to receive a commission of 3‡ per tie purchased for the plaintiff.

An examination of the evidence reveals no fraud or dishonest act on the part of the t>e buyers. It appears that these parties were unable to return the money when it was demanded. Martin could not. return the money because of losses suffered from bad business deals and because he had loaned money to various persons. Ebarb could not return the money because of losses resulting from consistent down grading on the ties and because of the payment of bank charges on many small checks. Rivers claimed that the plaintiff had breached his contract by refusing to accept certain ties which he had manufactured. He claims the plaintiff is indebted to him for the breach of contract. The pertinent portion of the surety bonds are the same and provide as follows:

“In consideration of an annual premium, the AMERICAN SURETY COMPANY of NEW YORK Surety will pay J. H. Riggs, Shreveport, Louisiana, Employer, not exceeding Two Thousand and No/100 Dollars ($2,000.00) for loss of money or property (including that for which the Employer is responsible) sustained through Larceny, Theft, Embezzlement, Forgery, Misappropriation, Wrongful Abstraction, Wilful Misapplication or other fraudulent or dishonest acts committed by - Employee in any position, alone or in collusion, while coverage is in force * *

Counsel for the appellant concedes that no question of larceny, theft or forgery is presented. He contends that there has been a wrongful abstraction, a misapplication 'and misappropriation of the funds. It might be observed that his suit is based on the ground that he suffered loss because of fraudulent and/or dishonest acts of the tie buyers. Without commenting on the per-tinency of the decisions cited from other jurisdictions, it is sufficient to say that under the decisions of one of the appellate courts of this state and a decision of this court that the plaintiff is not entitled to recover under these bonds when no fraud or dishonest acts have been proved.

In Cresent Cigar & Tobacco Co. v. National Casualty Co., La.App. 155 So. 505, the plaintiff, upon discovering that an employee had failed to account for certain merchandise, brought suit on a fidelity bond wherein -the surety bound itself for any loss sustained through “any act or acts of Fraud, Dishonesty, Forgery, Theft, Embezzlement, Wrongful Abstraction or Willful Misapplication committed by any employee.” The court pointed out that there could be no recovery unless dishonest acts •had been proved. Recovery was denied because dishonest acts had not been proved.' The court stated therein that a policy insuring against dishonest acts, affords no protection against loss resulting from carelessness, noncriminal stock shortages, or other losses not due to dishonesty. 'Many authorities were cited to support the court’s conclusion.

In the case of Curran & Treadaway, Inc. v. American Bonding Co. of Baltimore, 193 La. 763, 192 So. 335, 337, this court had occasion to entertain a surety 'bond issued to protect an employer against any loss sustained through any act of larceny, or embezzlement committed by -an employee. In that case this court made the following pronouncement and cited many authorities to support it, viz.: “It is to be observed that while every act of embezzlement involves a shortage, every shortage does not involve an act of embezzlement. A shortage in the accounts of an employee causing loss to an employer may result from mistake, disobedience of orders, or bad judgment, and not from any wrongful intent on the part of the employee. Thus, it has been held that an employee who becomes indebted to his employer through mistake or carelessness, or using funds of the employer for his personal use with no intent to defraud, is not guilty of embezzlement and therefore of a dishonest act within the meaning of a fidelity bond.”

It also quoted with approval the rule stated in Couch’s Cyclopedia of Insurance Law, vol. 5, sec. 1199, p. 4355, as follows: “But a fidelity bond indemnifying against loss by any act of fraud or dishonesty on the part of a bonded employee, covers only loss from acts of fraud or dishonesty. And loss must be actually suffered by the employer in order to warrant recovery on a bond conditioned against the dishonesty of an employee. Nor does the mere fact that a shortage is found justify a finding of fraud and dishonesty. For instance, a bond guaranteeing against loss by fraud or dishonesty does not cover a mere indebtedness of the employee to the employer. And ■a mere technical diversion of funds does not constitute personal dishonesty.”

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


source: Caselaw Access Project

author: MOISE, Justice.

license: Public Domain

text:
    217 La. 411
    STATE v. SCOTT.
    No. 39767.
    Supreme Court of Louisiana.
    April 24, 1950.
    Fuller & Harrison, Winnfield, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Sam L. Wells, Dist. Atty., Colfax, for appellee.
   MOISE, Justice.

The defendant is appealing suspensively from a judgment of conviction and sentence under a bill of information charging him with having violated the Local Option Ordinance of The Police Jury of Winn Parish. He was sentenced to imprisonment for a period of 5 months and fined $500.00.

The bill of information was filed on June 27, 1949. On July 15, 1949, counsel for the accused filed a motion that the trial judge recuse .himself, and that the motion to recuse be tried by another judge. The motion , to recuse was denied. The case went to trial and the' accused was found guilty as charged. A motion for a new trial was overruled.

The transcript of the record does not contain the written motion to recuse, nor does it show the evidence and testimony submitted on the trial of the motion to recuse.

At the time this case was set for argument and the record filed in this Court, defendant filed a motion for a continuance and order to remand for completion of the transcript of appeal. The case was submitted and the defendant was granted permission to amplify the record, as well as time in which to file a typewritten brief. Our Clerk’s office used every endeavor to obtain the amplification of the record without avail. On April 13, 1950, he received a letter from defendant’s attorney which, in part, reads:

“I have decided to submit the case of State against Frank Scott, appealed from the Parish of Winn, on the record as it stands, * * * No brief will be filed on behalf of the defendant under the circumstances, but I wish the Court to know that the right granted the defendant to file a typewritten brief was appreciated.”

The appellant having been granted time to amplify and complete the transcript in compliance with the provisions of Act No. 234 of 1932, and having failed to do so, the appeal should be dismissed. Smith v. Atkins, 215 La. 310, 40 So.2d 475.

For the reasons assigned, the appeal is dismissed.


author: REGAN, Judge.

text:
    THIGPEN v. MANGIN et al.
    No. 19447.
    Court of Appeal of Louisiana. Orleans.
    May 15, 1950.
    Deutsch, Kerrigan & Stiles and Breard Snellings, New Orleans, for appellants.
    Cyril F. Dumaine, New Orleans, for appellee.
   REGAN, Judge.

Plaintiff, Charles C. Thigpen, owner and operator of a 1941 Oldsmobile, instituted this suit endeavoring to recover the sum of $297.49, representing property damages incurred to his automobile on September 13, 1948 at 7:30 a. m. by virtue of a collision in the ascending inbound intersection of Esplanade Avenue and N. Tonti Street, with a 1948 Chevrolet, owned and operated on the morning of the accident by the defendant, J. W. Mangin.

Defendant answered denying that he was guilty of negligence in the premises and, in the alternative, pleaded contributory negligence. Defendant further answered in reconvention and maintained that his car was damaged to the monetary extent of $70.00, and, accordingly, prayed for judgment dismissing plaintiff’s suit and for judgment in reconvention in the foregoing amount. In oral argument defendant did not seriously urge his reconventional demand, but urged the alternative plea of contributory negligence.

From a judgment in favor of plaintiff, defendant prosecutes this appeal.

' The record reveals simple, but the usual controversial facts present in an intersec-tional collision.

Esplanade Avenue, which begins at the river 'and ends at the entrance to City Park, is a well known boulevard in the City of New Orleans and consists of an ascending and a descending roadway, separated by what is colloquially referred to as a neutral ground, measuring about three feet in width. North Tonti Street is a conventional street which intersects or crosses Esplanade Avenue and begins at Canal Street and ends at the St. Bernard Parish line.

Plaintiff was driving his car, near to the neutral ground, in the ascending (inbound) roadway of Esplanade Avenue, which is a right of way or preferred street, in the general direction of the river at a speed varying from between fifteen and twenty-eight miles per hour.

Defendant, accompanied by his brother-in-law, Robert M. Dupas and a friend, Arthur C. Holland, was driving his car close to the righthand curbing in N. Tonti Street towards the descending (outbound) roadway of Esplanade Avenue; that upon arriving at the intersection he stopped, looked to the left and then placed his car in “first gear” and proceeded to cross the descending (outbound) roadway of Esplanade, at a' speed of five to six miles per hour; that as he was approaching the neutral ground he “looked to the right to see if anything was coming on the uptown (ascending or inbound) portion of Esplanade Avenue” and defendant had, he maintains, traversed about fifteen feet or two-thirds of the ascending roadway of Esplanade Avenue when he was struck by plaintiff’s car. Defendant’s witnesses, Dupas and Holland, almost, without variation, corroborate defendant’s version of the accident.

Defendant and his two witnesses, are most positive in their testimony that plaintiff was traveling between forty and forty-five miles per hour immediately preceding the accident. In this connection, it is interesting to note, that they testified respectively, that they did not observe'plaintiff’s automobile until it was from eight to fifteen feet from them, yet they were certain that in the intervening split second they could intelligently estimate or calcu late the speed of plaintiff’s car.

Plaintiff, and a disinterested witness, Sidney Meilleur, testified that the speed of plaintiff’s car was under thirty miles per hour, “around 28 miles per hour”; and that the speed of defendant’s car, before the collision was about twenty miles per hour.

The witness Meilleur further testified that it was raining on the morning of the accident and he was driving his car about one-half block in the rear of plaintiff’s car at a speed of about twenty-five miles per hour in Esplanade Avenue approaching the intersection of N. Tonti Street, when he observed defendant’s car emerging from N. Tonti Street and cross the descending (outbound) roadway of Esplanade Avenue, and then proceed to pass around another car which had stopped in the neutral ground section awaiting Esplanade Avenue traffic; that “it looked like the guy was going to slow up or stop but he kept on coming” into the ascending (inbound) roadway of Esplanade Avenue, where the right front fender of defendant’s car struck the left front fender of plaintiff’s car. Plaintiff had also previously testified that defendant passed around another car which was stopped in the neutral ground section of Esplanade Avenue and then struck his car.

The evidence adduced in the court, a qua, does not support defendant’s contention that, “conceding plaintiff’s right of way, plaintiff must yield to any other vehicle which may have already entered and preempted the intersection”.

Defendant contended in the court, a qua, and before this court, that he had already entered and preempted the intersection, and that, therefore, plaintiff should have yielded his “right of way”.

The, evidence, however, does not support defendant’s contention. Plaintiff was trav-elling in Esplanade Avenue which, under Ordinance No. 13,702 C.C.S. of the City of New Orleans, is a boulevard and a favored street, and he possessed the “right of way” over defendant’s vehicle. Plaintiff, under the prevailing circumstances at the time of the accident, was reasonable in assuming that this right of way would be respected by the defendant who was negligently travelling on a less favored roadway.

In our opinion, plaintiff was travel-ling at a moderate rate of speed, that he had observed defendant emerge from N. Tonti Street into the descending (outbound) roadway of Esplanade Avenue, and as he passed around the automobile, stopped and awaiting traffic in the neutral ground section of the roadway, defendant indicated he would come to a stop, but he either failed to observe what he should have seen or he elected to gamble that he could cross the ascending (inbound) roadway of Esplanade Avenue safely. In either event the sole cause of the collision was defendant’s failure to come to a stop and permit the automobiles approaching from his right in Esplanade Avenue to pass safety-

The record conclusively reveals that neither defendant nor his two passengers observed plaintiff’s car until a split second before the accident occurred. In fact, the witness, Holland, saw plaintiff when he was about fifteen feet from defendant’s car and the witness, Dupas, saw plaintiff when he was about five feet from defendant’s car. Defendant testified that he did not observe plaintiff’s car until the witness, Holland, yelled “lookout” and then plaintiff was about eight or ten feet from the defendant’s car.

Defendant’s testimony on cross examination is, in our opinion, incredible. He stated that he had traversed all but five feet of the ascending (inbound) roadway of Esplanade Avenue when he was struck by plaintiff. In other words, according to defendant, the front of his automobile was five feet from the right curbing of the ascending (inbound) roadway of Esplanade Avenue when plaintiff, collided with him, and, therefore, plaintiff, of necessity, if defendant’s version of the accident is to be believed, had to be travelling in Esplanade Avenue hugging the righthand curb when the collision occurred.

In our opinion, the sole cause of the accident was defendant’s failure to see and observe plaintiff’s car before entering the right of way street in which plaintiff’s car was travelling and defendant’s failure to see that which he should have seen constituted as much negligence as though defendant had not looked at all. Hartford Fire Insurance Company et al. v. Romero, La.App., 5 So.2d 208.

Plaintiff, in the trial court, adequately proved damages to his automobile in the amount of $290.50, and this amount was not disputed by defendant in the court, a qua, or in this court on appeal.

This is, therefore, manifestly a case which involves the application of the well known doctrine that the findings of a trial court will not be disturbed or reversed where only questions of fact are involved, unless that finding is obviously erroneous, consequently, and

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: DORE, Judge.

text:
    MANUEL v. TRAVELERS INS. CO.
    No. 3241.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.
    Tate & Fusilier, Ville Platte, for appellant.
    Edward Dubuisson, Opelousas, James G. Dubuisson, Opelousas, for appellee.
   DORE, Judge.

This is an appeal from a judgment sustaining a plea of prescription or peremption to a demand of plaintiff for compensation at the rate of $20 per week, not to exceed four hundred weeks, allegedly due as a result of disabling injuries sustained by plaintiff in an accident which occurred in the course and scope of his employment on or about April 30, 1948. On the said day and date while carrying building materials, plaintiff slipped and fell on a flume, hitting tire said flume with his left knee.

Plaintiff alleges “that on or about October 27 or 28th of 1949, an injury developed from this accident which totally and permanently disables him from following the occupation in which he was engaged at the time of the accident, which injury did not result at the time of or develop immediately after the accident. * * *. That the disabling injury is described as a rupture of the bersae or bursae in the left knee, which said ruptured condition is a direct and proximate result of the accident of April 30, 1948, while in the employ of employer; ‡ if: >>

Plaintiff further alleges “that at the time of the accident, your, petitioner received a blow to his left knee, causing a condition for which he was opérated upon by Dr. C. V. Hatchette, and paid compensation up to approximately October 1, 1948; that the operation and removal of the semi-lunar cartilidge (cartilage) apparently produced a complete cure from this disabling condition; that, however, your petitioner’s present injury developed on October 27th or 28th of 1949, as a direct and proximate result of the accident on April 30, 1948, without previous warning, and that as a result of this injury, your petitioner is totally disabled from following the occupation in which he was engaged at the time of the accident.”

He filed his demand on December 13, 1949, making the Travelers Insurance Company, the compensation insurer of W. H. Patterson & Company, plaintiff’s- employer, defendant. Thereupon, defendant filed the plea of prescription or peremption, which plea was sustained by the trial judge, hence this appeal.

The trial judge, in his written opinion, based his judgment on the following cases, which he deemed most pertinent to the issue involved: Richard v. Blair, La.App., 20 So. 2d 577; Hannafin v. Pelican Cracker Factory, Inc., La.App., 185 So. 479; and Stephenson v. McCook Brothers Funeral Home, La.App., 27 So.2d 644.

There is no question in this case of interruption of prescription, nor is there a question of fact which we must decide, because for the purposes of this plea, the allegations of the petition must be taken as true. The only question involved is whether plaintiff’s claim is barred by the prescriptive or peremptive provisions of the Workmen’s Compensation Act, Act No. 20 of 1914, the pertinent section of said Act being Section 31, as amended by Act 85 of 1926 and Act 29 of 1934, which reads as follows:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties shall have agreed upon the payments to be made under this act or unless within one year after the accident proceedings have been begun as provided in Sections 17 and 18 of this Act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment. Also, where the'injury does not result at the time of, or develop immediately after the accident, the limitations shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the said proceedings have been begun within two years from the date of the accident.”

Both the plaintiff and defendant have submitted clear, well written briefs in which, they set forth what they consider to be the contention of the other and with criticism of the cases cited by each in support of his respective contention.

We feel that the contention of the plaintiff, as gathered from his pleadings and his brief, is that regardless of the fact that the accident of April 30, 1948 produced an immediate disabling injury to ’his left knee of such a degree that an operation thereon was necessary and performed, resulting in the removal of the semi-lunar cartilage of the said knee and apparently producing a complete cure of his disabling condition as of October 1, 1948, and was paid the maximum compensation to said date, since his present injury developed or manifested itself on October 27th or 28th of 1949, as a direct and proximate result of the accident on April 30, 1948, his claim therefor is saved by the last sentence of Section 31 quoted supra. In other words, plaintiff contends that the injury which manifested itself on October 27th or 28th of 1949, was in effect, a new injury arising out of the accident unrelated to the injury which immediately manifested itself necessitating an operation.

Plaintiff cites and relies upon the cases of Guderian v. Sterling Sugar & Ry. Co., Ltd., 151 La. 59, 91 So. 546; Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228, 229; Rabitaille v. Steel Tank Construction Co. et al., La.App., 42 So.2d 300; Kinder v. Lake Charles Harbor & Terminal District et al., La.App., 31 So.2d 498; Cook v. International Paper Company, La.App., 42 So.2d 558, and Anderson v. Champagne, 8 So.2d 373, in substantiation of his position.

In the Guderian case, the plaintiff suffered a gash over the left eye, which required slight medical attention, gave plaintiff no concern, and did not cause him any loss of time from his work. This was on January 9, 1919. In the early part of April, following, plaintiff observed dark spots before his eye. This at once alarmed him, and he immediately consulted a local physician, who informed him that the condition mentioned was due probably to a derangement of the kidneys or to indigestion. On April 23, 1919, he noticed his eyesight was failing, and immediately consulted the same physician, who advised him to consult a specialist. He acted on this advice, for on April 29, 1919, he was under treatment in the Touro Infirmary. The evidence disclosed that the blow over the left eye caused the detachment of the retina on the temporal, and that at sometime after April 23rd, perhaps in the early part of May, 1919, plaintiff, as a result, lost his eye completely, and, for the reason above stated, became totally blind. The suit was instituted on April 20, 1920. Hence, over a year elapsed between the blow and the institution of the suit, whereas, less than a year intervened between the loss of the eye and the filing of the suit.

The defendant contended that prescription began to run from the time the blow (accident) was struck, whereas plaintiff contended that it commenced at the time of the loss (injury) of the eye. Section 31 of Act 20 of 1914, had not yet been amended. The peremptive or prescriptive period then required the claimant to file his proceedings “within one year after the injury.”

The Supreme Court held with the plaintiff, that is, that the prescription of one year did not run until he lost his eye, as his cause of action did not arise until that time.

It is to be noted at this time that a disabling injury did not immediately manifest itself as in the present case. In the present case, a disabling injury immediately manifested itself, necessitating an operation and plaintiff was paid compensation to October 1, 1948, at which time he was discharged as being apparently cured.

In the Carlino case, the plaintiff suffered an inguinal hernia on September 15, 1936, while in the course and scope of his employment, but he continued to work until February 25, 1937, when he submitted to an operation. He was discharged as cured by the surgeon and returned to work about May 22, 1937. He was paid compensation at the rate of 65 per cent of his weekly wages from February 27th to May 22, 1937. On the second day after he returned to work, about May 24, 1937, a small lump or swelling appeared at the place where the operation had been performed. He |gain consulted the physician and he was -told by the physician that there was a recurrence of the hernia and that another operation would be necessary. However, plaintiff continued in his effort to work and actually did the lighter part of it until August 1, 1937, when he suddenly suffered a complete rupture. The suit was filed on June 18, 1938. The main defense argued by the defendant was that the suit was barred by the prescription of one year, under Section 31 of the Employers’ Liability Act, as amended by Act 29 of 1934. Anent this plea the Supreme Court stated: “It is not necessary to decide whether the one-year term of prescription against a suit based upon the hernia which occurred on or about the 15th of September, 1936, went on while the employer was paying the injured employee his wages as a gratuity. It is sufficient to say that a suit for compensation for the disability resulting from the rupture which' occurred on- August 1, 1937, is not barred by prescription, because -the suit was filed on June 18, 1938.” [199 So. 233]

In fact, the Supreme Court would have fixed the compensation period from August 1, 1937 instead of February 25, 1937, if it had not been for the fact that such a fixing would result in allowing the plaintiff more than he had sued for.

In our opinion, the Court took the position that plaintiff had received two distinct injuries while in the employment of the same employer, and was entitled to-recover regardless of the fact that he previously sustained a compensable injury and was cured therefor.- In our case, the plaintiff does not contend that he received two accidents causing two compensable injuries at different times while in the employ of W. H. Patterson &. Co.; his contention, as we understand it, is that he received, two injuries arising out of the same accident, one of which immediately manifested itself for which an operation was performed and apparently cured, while the second injury did not manifest itself until October 27th or 28th of 1949. The Carlino case therefore is not of any help to us in determining the issue.

In the Rabitaille case, the plaintiff, on July 13, 1947, sustained an injury to his left ankle arising out of an accident on thát day, for which he was paid compensation at the rate he was entitled to from that date through December 2, 1947. He went back to work for the same employer and on August 25, 1948, he claimed to have met with another accident in which he injured the same ankle and had to undergo an operation. His contention was that his disability was the result of both accidents and, conceding that he had recovered from the first accident of July 3, 1947, his injury was nevertheless, aggravated by the subsequent accident of August 25, 1948. A mere reading of the case clearly Shows that the case was concerned only with the aggravation of a previous injury. Nowhere in-the opinion is reference madq. to a plea of prescription being filed or considered by the Court. It is obvious, therefore, that the case is not pertinent to the case at bar.

In the Kinder case, the question at issue was whether the payment of medical expenses by the employer or employer’s insurer within one year preceding commencement of suit for-compensation interrupted or tolled the running of prescription or peremption. Obviously this case is not pertinent.

In the Cook case, plaintiff, while in the course of his employment with defendant, received an injury to his shoulder and foot as the result of an accident on July 23, 1946.: He alleged that recovery was complete from the shoulder injury but that his total disability from the injury to his foot had manifest itself first on December 20, 1947. He filed his suit on July 28, 1948, two years and five days after the accident. The suit was dismissed under the two-year prescriptive period.

Plaintiff’s able attorney states that “the Court indicated that suit could have been filed between December 20, 1947, and June (July) 23, 1948, a situation on all fours with the present case.” We find no such indication in reading the case. We do not find wherein this case is apposite to the case at bar.

In the Anderson case, plaintiff alleged that while engaged in the course and scope of his employment, he sustained an accident in 1936 or 1937 causing an injury to his left arm and that, thereafter, he continued to work arid experienced nothing more than a soreness and occasional pain in his left arm until some time towards the end of 1940, or the beginning of 1941; that a blood tumor finally developed on the injured arm which necessitated an operation in March, 1941. The suit was filed in January, 1942. The, Court held that the action was prescribed or perempted under the plain provision of Section 31, as amended in 1934. We fail to see wherein this case is pertinent to the case at ban

The defendant argues that the contention of the plaintiff is founded on a false premise. It contends that the only question presented to us is whether an employee who suffered a disabling injury of the left knee on April 30, 1948, the result of an-accident occurring that same day, and who was operated on for that injury and paid compensation until October 1, 1948, at which time he was apparently cured, may more than one year after payment of the last compensation benefit, bring suit under the compensation law for an alleged disability resulting from a recurrence of that injury. In other words, defendant contends that the condition in which plaintiff finds himself is a recurrence of the original injury which immediately manifested itself after the accident and not caused by a new injury as of date of October 27th or 28th, 1949. It cites and relies upon the cases followed by the trial court and the additional case of Jaume v. Maison Blanche Co., La.App., 193 So. 90S.

In the Hannafin case, the plaintiff was injured on April 8, 1936, when a falling' door struck her on her back near the base of her spine. In July of 1936, it was found that plaintiff was suffering from “lumbosacral sprain and right -and left sac-ro-iliac sprain and fracture, with displacement of the lower two segments of the coccyx.” [185 So. 481] The attending physician performed an operation upon the plaintiff, removing her coccyx and provided her with a brace for the relief of the “sacro-iliac and lumbosacral strain”. Plaintiff wore this brace to September 16, 1936, when she complained that it was uncomfortable and a sacro-iliac belt was substituted. The physician continued to treat the plaintiff until November 29, 1936, at which time he discharged the plaintiff as cured. Plaintiff was paid compensation until November 29, 1936. On May 5, 1937, plaintiff was advised by another doctor, after examination, that she was suffering from a sacro-iliac strain, and subsequently, on February 10, 1938, plaintiff brought suit against her employer for compensation benefits.

The Orleans Court of Appeal found that plaintiff “suffered more or less from the time of her injury (accident) up to the time of the filing of her suit and is, perhaps, still suffering, but we are also convinced that whatever might have been the cause of her suffering it was due either to the fractured coccyx^ bone or the sacroiliac strain, both of which injuries were manifest immediately after the accident. * * * Be that as it may, the section of the compensation law upon which the defense is based prohibits the bringing of a suit more than one year after the discovery of the disability due to the accident, in this case the sacro-iliac strain. Under the evidence in the record it cannot be said that the sacro-iliac strain did not manifest itself until within one year before the suit was filed.” It upheld the judgment of the lower court sustaining the plea of prescription or peremption. It is the contention of the defendant that a similar situation exists in the case at bar. We disagree with it. In the Hannafin case, as noted above, the Court found as‘ a fact that the evidence justified the conclusion that the injury, that is, the sacro-iliac strain, had immediately manifested itself, while in our case, the rupture of the bursae or bersae in the left knee did not develop or manifest itself before on or about October 27th or 28th of 1949, without any previous warning. Thus, in the Hannafin case, the plaintiff could have filed her suit within a year after her last compensation payment of November 29, 1936. She failed to do so, and consequently, her suit was barred. But in the present case, plaintiff could not have instituted any suit in the year following his last compensation payment of October 1, 1948, because he was not suffering from any disability or injury during that time. His cause of action only arose on October 27th or 28th, 1949, when the injury, the rupture of the bursae of the left knee, developed.

In the Richard case, involving a suit for an injury resulting from an accident of October 28, 1942, for which compensation was paid to December 22, 1942, this Court sustained a plea of prescription or peremption to the suit filed December 24, 1943, stating:

“The second contention of the plaintiff is based on the last sentence of Section 31 of the Compensation Law wherein it is provided that if the injury does not result at the time of, or develop immediately' after the accident; the limitation shall not take effect until after the expiration o'f one year from the time the injury develops, not however, more than two years from the date of the accident. This contention is clearly without merit as the injury in this case, according to plaintiffs -own petition, developed at the time of the accident or immediately thereafter. After describing the manner in which he was injured, plaintiff alleges that he became immediately sick and dizzy and suffered much pain; that he reported his injury to the officials of his employer and received medical treatment from his employer’s physician for about seven weeks, and received compensation for his injury.

“Plaintiff testified that the doctor who was treating him told him that he could go back to work; that about the middle of January, 1943, he tried to go back to work, but found that he was still disabled. He 'does not show that his employer misled him in any way as to his claim for further compensation. If he was disabled in January, 1943, this disability resulted from the same injury which developed at the time of the accident, and for which he was paid, the last compensation on December 22, 1942. He had a year from that date in which to determine the extent of any further disability resulting from the accident, but he failed to file his suit for further compensation within the statutory limit.” (Italics ours.) [20 So.2d 579]

Thus, we have again a situation wherein the injury developed or manifested itself at the time of the accident. Our remarks or distinction made in the Hannafin case to the case at bar equally apply to this case. Furthermore,' in that case, plaintiff did not contend that he was cured when discharged ; in the case at bar, plaintiff was discharged as cured on October 1, 1948, and remained so for a period of over a year; thus plaintiff’s disability which .developed on October 27th or 28th, 1949, cannot be said to be the result of the injury for which he was operated and is not a recurrence thereof.

In the Stephenson Case, plaintiff sued on behalf of his minor son for compensation. It appears that in the early part of July, 1944, plaintiff’s minor son, while in the course and scope of his employment, suffered a bad strain or injury of some kind; from that time on, his son suffered- severely from said cause and was hardly able to do any work, and began passing blood. His son consulted Dr. Harmon, who diagnosed his case as “chronic non-specific prostati-tis”, [27 So.2d 645] and treated him a few times, causing the passage of blood to cease, but not stopping the pains. On September 3, 1944, his son resigned and thereafter sought and found occasional jobs of light work, and was finally inducted into the U. S. Navy, December 13, 1944, but was discharged-on February 6, 1945, because of inability to perform his duties, and he again sought and found occasional light, jobs. Finally, on April 8, 1945, his son again consulted Dr. Harmon, who then found that his son had developed a serious injury, that his spine had separated at the lower part, and the X-ray examination confirmed this and also revealed an ephysitis of the dorsal vertebrae. In order to circumvent the one year prescription, the suit having been filed twenty-one months after the date of the accident, the plaintiff alleged “that he had no way of, knowing of the spine injury until the examination, by Dr. Harmon on April 18, 1945, which is less than one year prior to the filing of the suit.”

In affirming the judgment of the District Court sustaining a plea of prescription or peremption, the Court-of Appeal, Second Circuit, said: “In the present case, the allegations of the petition are conclusive that the injured employee suffered the'pain and discomfort almost continuously -from the time of the accident, and in view of that, it must be held that the accident and the injury occurred at the same time. Counsel argues in his brief that the injury was in the process of developing during this intervening time, and that it was only when Dr. Harmon examined him on April 18, 1945, that the injury actually manifested itself. It is true that the exact nature of the injury was discovered only at that time, but the injured employee knew, according to the allegations of his petition1 that he hafl sustained an injury. In fact, it is alleged that he had to leave the job he was on and look for jobs of light work, so that it can hardly be contended that he did not know that he had been injured, though it is true that he did not know the exact nature of the injury. This according to what was said by Judge Westerfield in the case of Esthey v. Avondale Marine Ways, La. App., 25 So.2d 631, would not have the effect of tolling the statute.”

Thus, it is evident that we have a similar situation as in the cases of Hannafin and Richard, supra, that is, that the plaintiff was suffering a disabling injury continuously from the date of the accident to April 18, 1945, and thence on to the filing of the suit, and he -could have filed his suit within a year from the accident.

In the Jaume case, plaintiff was injured on March 9, 1937, while employed as a painter by defendant, when he fell from a ladder to the cement floor. He was sent by his employer to the Touro Infirmary, where he remained about four weeks in a more or less unconscious condition under the care of a physician engaged by his employer. After leaving the hospital, he was confined to his home until May 21, 1937, when he returned to his employment and continued working for about nine and one-half months, or until March 4, 1938, when he was sent home by his employer. Jaume testified that after he returned to his employment with defendant he did the same sort of work he was doing before, but that he was “full of pains”; nevertheless, he says he carried on in spite of the pains because he needed the money to support himself and his family. His pains, Jaume said, consisted of a continuous heada-che and dizziness from which he suffered when he attempted to mount his painter’s ladder. On June 13, 1938, one year and three months after the accident, plaintiff brought his suit claiming compensation. The suit was defended upon four grounds; however, the Orleans Court of Appeal considered only two grounds: “First, a plea of prescription or peremption based upon Section 31 of Act No. 20 of 1914, as amended by Section 1 of Act No. 29 of 1934; Fourth, that whatever conditions plaintiff was suf-‘that whatever conditions plaintiff was suffering from * * * was not result of the accident of March 9th, 1937’.” [193 So. 196] In affirming the judgment of the lower court dismissing plaintiff’s suit on the merits, the Orleans Court of Appeal stated:

“It is clear from this review of the medical testimony that Jaume had failed to prove that his present disability is due to the accident, but if it were otherwise and he had been able to show that the accident caused all his trouble, there is nothing to indicate that his present disability was the delayed result of his injury, of which he could have no knowledge, or ability to anticipate so as to prevent the running of prescription, or defer its starting point to such time as the result was made manifest.”

“Our conclusion * “* * is that prescription was not interrupted by any delayed effect of the accident so as to bring the plaintiff’s claim within the provisions of Section 31 of the Compensation Statute, as amended, and postpone the beginning of the prescriptive period of one year from the date of the accident to some later date fixed by the manifestation of latent injuries.”

This case is in the same category as the other three cases cited and relied upon by the defendant; that is, that in all four cases cited and relied upon by the defendant, plaintiff in each case had continuously suffered from the moment of the accident to the time of the filing of suit; while in the case at bar, plaintiff suffered two injuries arising out of the accident. One of the injuries immediately manifested itself, and was completely cured by October 1, 1948; he did not suffer with any disability for a period of more than a year thereafter. The other injury from which he is now suffering suddenly developed on October 27 or 28, 1949, as a direct and proximate result of the accident on April 30, 1948. He filed his suit on December 13, 1949, within the two years of the date of the accident. The plea of prescription should have been overruled.

For the reasons assigned, the judgment appealed from is hereby annulled, reversed and set aside. It is now ordered that the plea of prescription or peremption be and the same is hereby overruled, and the case is remanded to the District Court for the Parish of Evangeline for further proceedings; the costs of this appeal to be paid by the defendants, all other costs to await the final termination of the case.

FRUGE, Judge ad hoc, recused.


text:
    CREDEUR et al. v. JONES.
    No. 3247.
    Court of Appeal of Louisiana, First Circuit.
    May 15, 1950.

      Welton P. Mouton, Lafayette, for appellant.
    J. Minos Simon, Lafayette, for appellees.
   DORE, Judge.

On or- about August 26, 1945, John Credeur and Joseph E. Simon, Oran Pre-jean and Cletus Mier organized the business of operating a taxicab service under the name of Diamond Cab Company, in the City of Lafayette, Louisiana. At the beginning, these four individuals owned two cabs, and shortly thereafter, Simon Prejean and Mier sold all their interests to John Credeur, who in turn, sold an undivided one-half to 'Chester Credeur. It also appears that on -or about September 10, 1945, the original parties in the taxi business permitted the defendant to run his car in connection with their business. It is also alleged and shown that a sign painter by the name of Downs painted the Diamond Cab insignia and the name on plaintiffs’ cab on or about September 10, 1945. It is further shown that the phone number of the Diamond Cab Company was number 402. The plaintiffs allege that during the latter part of January, 1948, there was a disagreement between them and the defendant, and that thereafter, the defendant continued to operate under the name of Diamond Cab Company and continued to use the phone number 402, and “that the said defendant is making unfair use of the name Diamond Cab Company and of the telephone number.” Plaintiffs sue to be decreed to be owner of the Diamond -Cab Company trademark and of the phone number 402, and also -pray for damages in the amount of $500.00 for the unfair use of said trade-name and 'said phone number by the defendant.

The defendant, in his answer, alleges that he originated and designed the emblem or trade-mark and trade-name and was the first to use the same, and his use thereof in the taxicab business in the City of Lafayette, Louisiana, pre-dates its use by plaintiffs or any of their alleged predecessors. He further alleged that he permitted the plaintiffs to operate their taxis from the Diamond Cab Company location and permitted them to use the name and telephone number, “but at all times the said name, design and telephone number remained the property of respondent and never belonged to plaintiffs or any of his predecessors.” He then set up a reconventio-nal demand for an injunction to prevent the plaintiffs from using and appropriating the trade-name Diamond Cab Company and the diamond insignia, and also prayed for damages.

After hearing the -case, the trial judge, for written reasons assigned, rendered judgment in favor of plaintiffs, John and Chester Credeur, and against the defendant, E. Kade Jones, recognizing plaintiffs’ ownership to the emblem and name of Diamond Cab Company and enj oining and restraining the said defendant, E. Kade Jones, and his agents and employees from using in his business or on his cabs the emblem and trade-name Diamond Cab Company, and rejecting plaintiffs’ demand for damages and also rejecting the plaintiffs’ demand for an injunction preventing the defendant from using the telephone number 402, and rejecting defendant’s recon-ventional demand. From this judgment, the -defendant has appealed, and before this--Court again insists that he is the owner of the Diamond Cab Company trade-mark. The plaintiffs have answered the appeal, praying- that the judgment below be amended so as to award the damages in the amount of $500.00, and that, as so amended, it be affirmed.

The case involves strictly questions of fact, which are very well discussed in the written reasons for judgment of the trial judge. As brought out 'by the trial judge, the Diamond Cab Company was organized sometime in August, 1945, by the plaintiff, John 'Credeur, the defendant, E. Kade Jones and Joseph E. Simon, Oran Prejean and 'Cletus Mier. Under the plan worked out 'by them, Simon and Prejean were to furnish one car, and Mier and John 'Cre-deur were to furnish one car, and E. Kade Jones was to furnish one car. Under their agreement, the expenses to run the office were to ’be prorated between the five, but each one was to 'bear the expenses of operating his automobile and was to receive and retain all the fares he made and collected.

During the latter part of August, 1945, Mier, Jones, Simon and Prejean had a meeting at White’s Service Station, where Jones was employed, and at this meeting, it appears that the Diamond trade-name and insignia was agreed upon. The trial judge states that the evidence is not clear as to who suggested the name, but he felt justified in concluding that Jones originated or designed the insignia or emblem and drew a rough sketch of a diamond shape on a match box.

The trial judge also came to the conclusion, from the evidence, that following the conference above referred to, Credeur and Prejean called on Robert Downs, a sign painter, who painted *the emblem or trademark of Diamond Cab Company on the car to be operated by John Credeur and Cletus Mier and on the car to be operated by Oran Prejean and Joseph E. Simon.

The trial judge also correctly states that the record shows that on August 30, 1945, E. Kade Jones signed a contract with the Southern Bell Telephone & Telegraph •Company for a business individual line telephone at 206 E. Vermillion Street in Lafayette, and that this phone was installed on that date, August 30, 1945, and was given the number 402. The contract in question was signed Diamond Cab Company, by E. Kade Jones.

It seems clearly established that the telephone number 402 was installed on August 30, 1945, and that all the parties except the defendant began operating a taxi business under'the name of Diamond Cab Company on or 'before that date, and that the emblem and trade-name was painted on the two cars in question on or before August 30, 1945; that at that time, the defendant was employed by J. K. White, and that for that reason, he did not begin the actual operation of a taxicab business until September 10, 1945, and the emblem and trade-name, Diamond Cab 'Company, was not printed on his automobile until September 13, 1945.

The trial judge states:

“After a careful consideration of all the evidence in this case, I am satisfied that the emblem and trade name ‘Diamond Cab Company’ was painted on the car owned by John Credeur and Cletus Mier and on the car owned by Joseph E. Simon and Oran Prejean, and that the same was adopted and used by them prior to September 10, 1945, the date on which the defendant actually began the operation of the taxi business.

“It is the defendant’s contention that he was the originator and first proprietor of the insignia or emblem and the owner of the trade name ‘Diamond Cab Company.’

“Defendant states in his brief:

“ ‘It was Jones, and Jones alone, who developed the idea of going into the Taxi ■business. He was the one who named Diamond Cab Company and he was the one who confected and designed the emblem to be painted on the taxicabs. He was the Diamond Cab Company and it was his trade name and under that name on August 30, 1945, he -made application for and received telephone number 402 from Southern Bell Telephone and Telegraph Company, which phone was installed on that date.

“ ‘The claim of the plaintiffs is based entirely on their erroneous assumption that just because two of the cabs carried the insignia for about ten (10) days or less, prior to Jones’s cab, that they are entitled to the same under the doctrine of secondary use of a trade-mark or trade name. Nothing could be more erroneous for the evidence shows quite distinctly the origination thereof by Jones and his authorization and permission to the others to use it on their cabs.’

“The Court cannot agree with defendant when he states he was the Diamond -Cab 'Company. He may be the one who originated the name and the emblem and who suggested it to the others, but the four who met at the White’s Service Station all agreed to adopt the name and the emblem.”

We can -find no error in the -conclusion of the trial judge set forth hereinabove.

In so far as the trade-mark or trade-name is concerned, we agree with the trial judge that the plaintiffs have established their prior use thereof an-d are entitled to the continued use thereof, as set forth in the case of New Orleans Checker Cabs, Inc., v. Mumphrey, 205 La. 1083, 18 So.2d 629, 633, wherein Chief Justice O’Niell, as organ of the Court, stated: “The law’s protection against unfair competition by the use of another’s trade name rests upon the deceit or fraud which the newcomer in the -business practices — not only upon the one already established in the business but also upon the public. 63 C.J. p. 323. In such -cases priority of appropriation of the trade name determines the question as to which one of the conflicting claimants is entitled to use the trade name. 63 C.J. p. 340; Handy v. Commander, 49 La.Ann. 1119, 22 So. 230; Paducah Distilleries Co. v. Crescent Mfg. Co., 6. Orleans App. 151. In Handy v. Commander it was said that the right to the exclusive use of a trade-mark was ‘founded (exclusively) on priority of appropriation’.”

It is also shown that in so far as the telephone number is concerned, the application therefor was -made by Jones individually, and therefore, the trial court was correct in concluding that said phone number belonged to the -defendant, and that he should not be enjoined from using it.

As found by the trial judge, there is no showing on which to support the claim of plaintiffs for damages and we are, again, in accord with him that the record does not justify the claim for damages.

Counsel for defendant makes a contention in his brief with reference to costs in which we find merit. His contention is that since the plaintiffs have sued for both the trade-mark and the telephone number, and the judgment is in their -favor in so far as the trade-mark is concerned, but against them in so far as the telephone number is concerned, the costs should be divided -between the parties equally. Using the discretion vested in us, the judgment will be so amended.

For these reasons, the judgment appealed from is amended by casting both the plaintiffs and defendant in equal proportion for all -costs incurred in both courts, and as thus amended, the judgment is affirmed.


author: FRUGE, Judge ad hoc.

text:
    HEBERT v. FIFTEEN OIL CO.
    No. 3245.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.

      Bauer & Bauer, Franklin, for appellant.
    L. O. Pecot, Franklin, Alex P. Allain, Franklin, for appellee.
   FRUGE, Judge ad hoc.

Alleging total permanent disability as a result of an accident injury to his ear on October 24, 1946, while in the course of his employment, plaintiff, Charles H. Hebert, instituted this suit against defendant, Fifteen Oil Co., claiming compensation at the rate of Twenty and No/100 ($20.00) Dollars per week for a period of four hundred weeks.

Defendant admitted that while in the course of plaintiff’s employment he, plaintiff, received a slight accidental injury to his ear on the date alleged and that said employment was hazardous under the terms of the Louisiana Workmen’s Compensation Act. Act 20 of 1914, as amended. However, defendant denied that there is any connection between the slight injury sustained by the plaintiff on the 24th day of October, 1946, and the admittedly total permanent disability from which plaintiff is and was suffering at the time of the filing of his suit in October, 1947. Further answering, the defendant alleged that plaintiff continued in the employ of defendant for a period of 33 weeks after the date of the accidental injury at a rate of pay greatly in excess of the maximum weekly payments allowable under the Workmen’s Compensation Law of the State of Louisiana, and that defendant has expended the sum of $23.01 for medical expenses in connection with the accidental injury sustained by plaintiff on October 24, 1946, which is admitted by plaintiff.

The lower court rendered judgment for plaintiff as prayed for, subject to a credit in favor of defendant of thirty three weeks at twenty dollars per week, and the $23.01 expended by the defendant for medical care of plaintiff. From said judgment the defendant appealed to this court.

The sole question before the Court is whether or not the accidental injury suffered by plaintiff on October 24, 1946, during the course of his employment is the cause of his present disability, or aggravation of a dormant pathology which has precipitated or resulted in his present disability.

Plaintiff testified that he was injured on October 24, 1946, at approximately nine o’clock in the morning while rolling casing in the Charenton Oil Field and while acting within the scope of his employment as a roustabout for the defendant; that while thus employed a small twig or limb from a tree or bush penetrated his right ear causing severe pain and some bleeding all of which is admitted by defendant.

The evidence disclosed that he was given first aid by Dr. Rushing and returned to work, and about eight or ten days later called on Dr. LeBourgeois in New Iberia, who treated him about twice a week for five or six weeks and then discharged him. about two weeks after his discharge by Dr. LeBourgeois, he again called on that doctor and complained about his vision and Dr. LeBourgeois prescribed glasses for him which contained very thick lenses.

Shortly thereafter, a Dr. Alexander of New Orleans, recommended that he have his tonsils removed, said operation being performed by Dr. LeBourgeois. After this operation the plaintiff still complained of intense pain and the impairment of hearing and sight.

Sometime later, upon the advice of Dr. Edward Landry of New Iberia, plaintiff went to Ochsner Clinic in New Orleans, from whence he was sent to Foundation Hospital where Dr. Dean Echols performed an operation on the base of plaintiff’s brain. After leaving the hospital he remained in New Orleans for approximately three weeks receiving X-ray treatments.

The record in this case contains the report of Dr. Echols who performed an exploratory operation on the base of plaintiff’s brain on July 22, 1947, the report of Dr. Howard Karr, and the testimony of Dr. C. M. Horton.

Dr. Echols believed that a tumor was the seat of plaintiff’s troubles and he expressed the opinion that plaintiff would soon die when he wrote his report on January 28, 1948. He stated in his report:

“At operation on July 22, 1947, I explored the cerebellar portion of the brain. I did not actually see or remove a tumor of the cerebellum, but I was able to conclude that in all probability the patient was dying of a tumor of the brain stem.

% ‡ # # %

“While I feel quite certain that the injury to the ear mentioned above could have no connection with the patient’s present illness, only an autopsy could settle this matter to everyone’s satisfaction.”

After seeing Dr. Echols and having the operation performed, the plaintiff returned home and his condition became progressively worse.

On June 28, 1948, plaintiff was examined in the City of New Orleans by Dr. Howard Karr. Dr. Karr submitted a report which was introduced in the case by the defendant. Dr. Karr’s report is a very lengthy one stating most emphatically that the plaintiff is not suffering from a tumor. He states: “The X-ray pictures of the brain which were taken on July 22 may have revealed dilatation of the lateral ventricles; however, the statement that the dilatation was due to an obstructive lesion in the region of the cerebellum is not warranted and is purely an inferential statement with respect to the dilatation. * * * The conclusion that a brain tumor exists is purely an inferential one and is not justified by the subsequent clinical course of this patient. Furthermore, in view of the present clinical findings the diagnosis of tumor cannot be justified under any circumstances. Even so had a tumor been present, this tumor could not exist on the basis of the type of trauma this man is alleged to have received.”

Dr. Karr diagnosed plaintiff’s illness as multiple sclerosis and stated: “This man’s present condition is due to the natural course and progression of a chronic central nervous system disease which is characterized by a chronic and progressive course with numerous remissions and exacerba-tions.”

Further he stated: “The initiation of the disease as well as its progress bears no relationship whatsoever to trauma and occurs spontaneously with reference to trauma.”

Plaintiff testified that Dr. Karr’s examination of his person consumed only about ten minutes, but Dr. Karr submitted a report, part of which is quoted above which consisted of three and one-half typewritten pages.

Dr. C. M. Horton of Franklin, Louisiana, is the only doctor who testified at the trial of this matter. Dr. C. M. Horton testified that he had known the plaintiff for approximately thirty years and had never known him to need medical attention until after the accident which occurred on October 24, 1946. He testified that the disease known as multiple sclerosis was relatively speaking a rare disease and that little was known about its causes. From medical books, he stated that the probable causes were listed as trauma, injury or fatigue, exposure, intoxications and inflammatory processes. He further opinioned that a toxic condition as a result of a trauma or injury could have some effect in causing the disease or aggravating the disease. He further stated that the disease known as multiple sclerosis usually occurs between the ages of 20 and 40 and that it was possible that a man could-be suffering from multiple sclerosis and a toxic condition after forty could aggravate the disease. Dr. Horton did testify that he was not a specialist in nervous diseases and that the causes of the disease were not too well understood, but the effects on the nervous system were clearly demonstrated.

Considering the above medical reports and medical testimony this Court finds itself with conflicting medical evidence. The lower court concluded that plaintiff was suffering from the disease known as multiple sclerosis which is a disease'which attacks a portion of the brain or central portion of the nervous system. Sclerosis is defined in Gould’s Pocket Pronouncing Medical Dictionary, Tenth Edition Revised as “induration and overgrowth of the connective tissue of an organ”.

As stated before there is no denying that plaintiff is totally unable to. do any work of a reasonable character, and the only question is whether the disease plaintiff is suffering of was latent, or dormant and has been aggravated and rendered active by the accident, or if it originated on account of the infection resulting from the ear injury, or the resulting weakened physical condition of the plaintiff, which if the case would allow plaintiff to recover. See Robichaux v. Realty Operators, Inc., 195 La. 70, 196 So. 23.

Finding itself with medical evidence which is confusing and lacking, this court is compelled to reach a decision which will do equity to the parties. The court is not unmindful that, as in all other civil cases, the plaintiff must prove his case by a preponderance of the evidence. However, it has been repeatedly held by the Louisiana courts that when medical testimony is too vague, indefinite, confusing or contradictory for the courts to draw upon said evidence for an intelligent conclusion that the court should look to lay testimony and the circumstances surrounding the issues in the case in order to arrive at an equitable conclusion. See Bearman v. Fuller Construction Company, La. App., 148 So. 720; Rogers v. Union Indemnity Company, La.App., 146 So. 505. The court citing the above cases said in the case of Hennen v. Louisiana Highway Commission, La.App., 178 So. 654, 656: “It is thus to be seen that we are confronted with a deplorable and irreconcilable conflict in the testimony of members of the medical profession relative to an important issue in the case. When situations of this kind are at hand, and such are not infrequent, the court must look to the lay testimony and to the other evidence for assistance in its endeavor to do justice between the parties.”

In the case of Christy v. Brown Paper Mill Co., Inc., La.App., 27 So.2d 917, 918, the court stated: “The medical testimony unquestionably preponderates in favor of the contention that none of the bones in plaintiff’s body was fractured or seriously injured from the reel of paper falling against him; and if a decision of the issue in the case depended solely upon this sort of testimony, perforce the judgment appealed from would have to be affirmed. But, we are of the opinion that the medical testimony concerning bone injury may be entirely cast aside and yet there remains ample lay testimony in the record to warrant an award in plaintiff’s favor.” For similar general statements see Lowery v. W. Horace Williams Co. et al., La.App., 8 So.2d 704; Crier v. Kent Piling Co., La. App., 12 So.2d 472; Vautrot v. Maryland Casualty Co., La.App., 32 So.2d 500.

The court, in going beyond the medical evidence in reaching an equitable deci-sión, is nqt doing so on a supposition that it wishes to substitute its opinion of those who are specialists in that field, but it must do so when the evidence is confusing and lacking.

In the instant case we find that the plaintiff is a man of about forty three years of age; that he has a robust physique and up to the time of his injury had never required medical attention. He had a limited education and had to depend upon hard physical labor to earn his livelihood and was at all times regularly employed.

After he received the injury to his ear to the date of the trial of this case in the lower court his condition grew progressively worse and he found himself in the hands of a physician continually. It was only several weeks after the accident that his eyesight failed him. Dr. Karr opin-ioned in his report that the plaintiff’s vision was normal, but the lower court found him wearing thick-lensed eye glasses. Then sometime later his tonsils became infected and had to be removed. Plaintiff then found himself suffering from dizzy spells and headaches. He lost his strength in his right limbs and had to seek the use of a cane to hobble around.

Further, Dr. Karr stated in his report of June 28, 1949, that the likelihood of plaintiff dying in the near future was remote. He stated that “the average case of multiple sclerosis will live for easily ten years”. On the 28th day of February, 1950, after the lower court rendered its decision, the plaintiff departed this life. Considering what Dr. Karr said in his report, and the fact that Dr. Horton testified that the trauma could have aggravated the disease, the court is compelled to find that the injury suffered by the plaintiff while in the employ of the defendant aggravated the disease of multiple sclerosis which was dormant in plaintiff at the time of the accident, and to such an extent, as to permanently disable plaintiff, or the said injury contributed to the position that plaintiff found himself in.

As stated before, the plaintiff departed this life on the 28th day of February, 1950, approximately one month after the lower court had rendered its decision in. his favor. Counsel for plaintiff has by proper motion asked this court to substitute the heirs of plaintiff in plaintiff’s stead, introducing a certified- copy of the judgment of possession in the Succession of Charles H. Hebert, which this court has granted. The law of this State is clear that under such circumstances, that is, where the employee has died more than one year after the date of the accident, the heirs are only entitled to the weekly payments that have accrued at the time of the employee’s death. The benefits are personal to the original plaintiff and after his death payments that have not accrued are not heritable. Act No. 20 of 1914, Section 8, subd. 2, as amended by Act No. 242 of 1928, p. 358; Hall v. Southern Advance Bag & Paper Co., La.App., 158 So. 829, affirmed on rehearing La.App., 164 So. 345; Guillot v. Weaver Brothers & Thompson Lumber Co., La.App., 31 So.2d 278.

Therefore, for the reasons assigned the judgment of the lower court is amended by limiting the compensation payments to February 28, 1950, the death of plaintiff, and it is further amended by substituting the following persons as parties plaintiff in lieu of Charles H. Hebert (original party plaintiff, now deceased) : Mary Louise Hebert, individually and in her capacity as natural tutrix of minors Dolores Hebert, Loretta Hebert and Patricia Hebert, and in all other respects affirmed, the costs to be borne by defendant appellant.


author: PER CURIAM.

text:
    POWERS v. ALLIED CHEMICAL & DYE CORPORATION.
    No. 3226.
    Court of Appeal of Louisiana, First Circuit.
    May 15, 1950.

      Hirsch & Greene, Baton Rouge, for appellant.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellee.
   PER CURIAM.

In his application for rehearing, the sole complaint which plaintiff finds with our opinion, affirming the judgment of the lower court, lies in the failure of both courts to award him compensation for the period from March 5, 1948, the date on which his employment was terminated for' lack of work, to April 11, 1949, the date compensation payments were begun under the judgment rendered on April 1, 1949.

The lower court found that plaintiff had been offered and tendered “by the defendant at all times and particularly at the time the plaintiff was terminated on March 5, 1948”, an operation for the removal of the injured finger, which said operation had been consistently refused by the plaintiff. A careful review of the record fully justifies the trial court’s finding.

It is now well settled in our jurisprudence that an employee should not be paid during the period when his disability is occasioned by his own wilful refusal to submit to proper medical treatment. * Rehearing refused.


author: ELLIS,. Judge.

text:
    ANDRIES v. NELSON et al.
    No. 3255.
    Court of Appeal of Louisiana, First Circuit
    May 15, 1950.

      Kaufman, Anderson & Leithead, Lake Charles, for appellants.
    Alva Jones, Oakdale,, for appellee.
   ELLIS,. Judge.

The plaintiff on September 1, 1948 sold to the defendants, William Nelson and Harry Chozen a used D-7 bulldozer and scraper for $7,000 cash. The plaintiff, during November and the early part of December made certain repairs on the bulldozer, the charges therefor totalling $1068.44. Defendants having failed or refused to pay for the repairs, plaintiff filed this suit to recover same and seized the bulldozer under a writ of provisional seizure which was released upon the defendants furnishing bond in the amount of $2,-000.

The defendants admit that certain repairs were made to the bulldozer by the plaintiff but defend the suit upon the ground that they purchased the machine from the plaintiff a short time before the repairs were made and that the plaintiff having warranted the machine to 'be in first class condition when, as a matter of fact, it was not, that the repairs were made by plaintiff in order to make the machine suitable and fit to do the work for which it was sold under plaintiff’s warranty and they are not liable for the labor and materials furnished and the expenses incurred by the plaintiff in making such repairs. Defendants, assuming the position of plaintiff in reconvention, further contended that because of the hidden defects and vices that existed at the time of the sale they are entitled to a reduction of $2500 in the purchase price of the machine.

The case was tried and judgment rendered in favor of the plaintiff in the sum of $552.25-with recognition of the lien and privilege claimed by the plaintiff on the bulldozer. From this judgment the defendants have appealed to this court and the plaintiff has answered the appeal asking that the judgment be amended by increasing it to the full amount claimed.

There is no doubt that the plaintiff made the repairs and furnished the parts as shown by itemized statements which are, in effect, bills for the work, dated November 18, November 24, November 27, 1948 and December 6, 1948.

The law applicable to this case is set forth in the following quoted articles of our Civil Code:

Article 2475: “The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.”

Article 2476: “The warranty respecting the seller has two objects; the first is the buyer’s peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices.”

Article 2520: Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

Article 2521: “Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

Article 2522: “The buyer can not institute the redhibitory action, on account of the latent defects which the seller has declared to him before or at the time of the sale. Testimonial proof of this declaration may be received.”

Article 2530: “The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

There was no waiver of any warranty by the defendants and, therefore, the plaintiff warranted the machine as suitable for the purpose intended. A. Baldwin Sales Co., Inc. v. Mitchell, 174 La. 1098, 142 So. 700. J. B. Beaird Co. v. Burris Bros., 216 La. 655, 44 So.2d 693. In addition, the District Judge found, and we thoroughly agree with him, that at the time of the sale of the machine the plaintiff warranted it to be in first class condition and suitable for the work for which it was sold except for the tracks, rails and rollers. The facts as revealed by the record show that the defendants, previous to the purchase of the machine, watched it work for fifteen or twenty minutes, and, after discussing the matter with the plaintiff and being told that the machine was in good condition other than as stated, purchased same on September 1, 1948. The machine was in DeQuincy, Louisiana, and on September 2d the defendants began to use the machine, and the first day in seven hours of work the machine used five gallons of oil. The machine was operated by the same person until September 28th and it used as high as ten gallons of oil in one day during that time. It is shown that during that period they were only able to operate it on an average of from four to six hours per day and that it did not work each day of the twenty-eight days and was continuously breaking down.

Complaints were made about the condition of the machine and plaintiff installed new rings in the engine at his own expense. The machine was operated on September 28th for the first time after the installation of the new rings for approximately two hours. Shortly after the rings were placed in the machine by the plaintiff at his own expense it was moved from De-Quincy to Lake Charles where it was put to work and was still found to use an excessive amount of oil and, in addition, the “clutch links” kept breaking and the defendants then put the machine in their shop and had a complete new clutch installed without saying anything to the plaintiff about it.

The testimony shows that this machine, after the rings were put in at DeQuincy, was used two hours and when moved to Lake Charles it worked three different days for only a total of eight hours when it was moved to Ville Platte, and after working thirty minutes a connecting rod in the engine burned out. It was then that the plaintiff was called, and on November 18th went to Ville Platte and began making the repairs which are the subject matter of the present suit.

It is shown that on November 18th the plaintiffs fixed the connecting rod and installed a new bearing and three rings which took a total of sixty-four hours, and three trips totalling 600 miles and $213 worth of parts. The total amount of the repairs and parts be-ing $344.14, the Lower Court reduced the purchase price by this amount on the erroneous finding of fact that this was the amount it cost to overhaul the engine, and that the engine on the day of the sale was not suitable to do the work and contained latent defects and would have to be overhauled, and the cost of the same would be as shown by the itemized statement or bill introduced.

We are not impressed with the testimony that the connecting rod burned out as the result of the machine being operated down hill or standing still for fifteen minutes with the motor running with the front end pointing down hill and as a result the rear connecting rod did not get sufficient oil. There is no positive testimony that this machine was left with the motor running long enough to burn out a connecting rod, merely that the plaintiff thought that is what happened, whereas it is disputed by the defendants. It is more likely that the rod burned out due to the worn or defective condition of the oil distribution system of the motor.

The plaintiff was obligated under his warranty to make all' the repairs which he made as shown by the bill of November 18, 1948 and he is not entitled to collect this amount. The defects were latent and were not apparent by simple inspection.

We are also of the opinion that these defects or weaknesses which manifested' themselves from the first day that the defendants operated the machine until it finally broke down to where it could not be operated in December, 1948, existed in the machine at the time of the sale.

On November 24th plaintiff, as shown by bill or itemized statement, installed final drive bearing, adjusted ring' gear, overhauled a steering clutch assembly for which there was $250 labor and $265.31 parts, or a total of $515.31. There is no doubt that all of these parts were warranted and if they had been in good condition on the date of the sale would not have needed to be replaced this soon. There is nothing in the record to show that the necessity for the replacement of these parts on such a machine could be due to anything other than use. The record shows that this machine was used a comparatively small number of hours the first twenty-eight days that defendants owned it, and during this time it was broken down the greater part of the time and the plaintiff, at his own expense, installed rings in an attempt to correct the defective parts of the motor. After the rings were installed the machine was used two hours at DeQu-incy, moved to Lake Charles and used eight hours, then moved to Ville Platte during which time the repairs now in dispute were made and it was used a total of twenty hours, making a total of thirty hours use of this machine even with all the repairs which the plaintiff made to it. It is apparent that the machine was badly worn at the time of the sale.

The machine was hauled back to Lake Charles from Ville Platte on February 10, 1949 and it is shown that the steering gear had broken down and it could not be steered, and that it blew oil out of the exhaust pipe and had water in the base. The machine, even after all of the repairs, still would not operate.

The plaintiff was obliged under his warranty to make the repairs as shown by the statement of November 24, 1948, and is not entitled to recover for same.

The plaintiff next worked on the machine in Ville Platte on November 27, 1948 for which he charged $38. It is shown that these repairs were due to the fact that the transmission got out of shift but it is undisputed that a competent operator could have gotten it back in without sending for a mechanic. The plaintiff is entitled to collect for this repair as it is not shown to be due to a defect in the transmission.

On December 6th, 7th, 8th, and 9th, plaintiff again worked upon this machine. These repairs were made on the track and rollers which were expressly excluded from any warranty and, therefore, plaintiff is entitled to collect this amount which is $171.

While plaintiff testified that he had put all new parts in this engine approximately two months prior to its purchase by the defendants, and the operator of the machine for the plaintiff also testified that it was in good order the day before the defendants bought it and began to operate it, this could not be true unless the work done upon the machine and the installation of the new parts was done in a defective manner, for there is no doubt that this machine immediately used excessive amounts of oil and began to break down in various parts which were covered by plaintiff’s warranty. It is clearly shown by the testimony that where new rings are installed in a motor such as the bulldozer in question and it continues to use oil, it is a sure sign that the sheafs, which are a part of the motor, are worn out and also the pistons.

The defendants offered an expert witness, C. M. Key, who testified that he had examined this machine when it was brought into the shop on the 10th of February, 1949, and that it was unloaded with a winch as it would not unload itself; that he had gone over it and that it would take approximately $1000 worth of labor, $800 or $900 worth of parts which did not include a new crank shaft which, if defective, would include an additional $235 plus labor to install. He had run the engine in the shop and it blew oil out of the exhaust to such an extent that he could hardly stay on the seat, and it was also getting water in the base of the engine, and he testified that such a condition must have existed for some length of time and that the machine could not possibly be used in that condition. When asked what would be needed to make this machine suitable for the purpose for which it was sold, this witness stated: “It needs to have the engine completely overhauled, the sheafs, pistons and rings and inserts. I couldn’t say about the crankshaft. It needs a steering clutch and a right hand brake. The transmission needs complete overhauling. I couldn’t say just what that would run but it would come pretty nearly to that. The right bellow is out, worn out.”

It was his opinion that either the work which was done on the machine was improperly done or that it was worn out before. There is no doubt that the defects in the motor manifested themselves the first day that the defendants operated this machine and that the defects were latent and covered by plaintiff’s warranty. As far as we are able to determine from the testimony, all of the defects in this machine which were covered by the warranty were latent. We are also of the opinion that they existed at or prior to the date of the sale, for they manifested themselves within such a short time after the sale that it; would have been impossible for them to have worn out within thirty to sixty days, especially since this machine was operated only thirty hours during the last sixty days, and a very few number of hours the first twenty-eight days. The work was not shown to have been too difficult for this type of machine and eight to ten hours per day was considered a days work for a 'bulldozer. In other words, during the last-sixty days the defendant operated the machine, we might say, only three full days.

We are, therefore, of the opinion that: this machine was defective to such an extent that it was practically useless for the-purpose of performing the work for which-it was bought and that defendants would not have purchased it had they known of' the vices which immediately began to manifest themselves the day after its purchase- and throughout the entire time they attempted to operate it.

In view of the testimony of the expert witness that it would take $1800 to repair this machine so that it would be suitable for the purpose for which it was sold, and as the plaintiff has shown this to be a small or reasonable amount for repairs on such a machine, we are, accordingly, allowing a reduction in the purchase price for this amount.

For reasons assigned, the judgment appealed from is reversed, annulled and set aside, and it is now ordered, adjudged and decreed that there be judgment herein in favor of the defendants, plaintiffs in recon-vention, William Nelson and Harry Cho-zen, and. the co-partnership of • William Nelson and Harry Chozen, in the full sum of $1800 with legal interest from the date of judicial demand until paid, subject to a credit and judgment in favor of plaintiff, Albert V. Andries, and against the defendants, William Nelson and Harry Chozen and the copartnership of William Nelson and Harry Chozen in the full sum of $209.-00 with legal interest from judicial demand until paid.

It is further ordered that the costs he equally divided between the plaintiff and defendants.

It is further ordered, adjudged and decreed that the writ of provisional seizure be now recalled and that defendant’s bond in the amount of $2000 be cancelled upon the payment of all costs in connection with the issuance of the writ of provisional seizure and the release of the D-7 Bulldozer under the bond.