text:
    NELSON v. ASSOCIATED BRANCH PILOTS OF PORT OF LAKE CHARLES et al.
    No. 3219.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Thos. C, Hall, Lake Charles, for appellant.
    Joe J. Tritico, Lake Charles, for appel-lees.
   DORE, Judge.

Plaintiff is a member of the Associated Branch Pilots of the Port of Lake Charles, Louisiana, sometimes otherwise known as Lake Charles Pilot Association and Lake Charles Pilots, hereinafter referred to as the Association, a voluntary association at the time of the filing of the suit, composed of Daniel Jessen, James P. Forrest, Lester Z. Cole, Ernest F. Clooney, George D. Carpenter, Kenneth Gonzales, Sam Hale and plaintiff.

He brings this suit against the said Association seeking a judgment against it for the sum of $684.39, with interest thereon at the rate of five per cent per annum from date of judicial demand until paid and costs, and against the other members of the said association, in solido, each for one-seventh of the said sum of $684.39, with interest and costs.

The claims are based on separate items as follows:

(1) Óne-seventh of $427.42 expended by the Association during the month of February, 1947, for repairing the Association’s pilot boat while he, plaintiff,' was inactive and did not participate in the earnings of the Association during the said month, contrary to the Articles of Agreement, by-laws and its rules and customs of the said Association, the amount being $61.06.

(2) Fines totaling the sum of $200 which were deducted from his earnings in January, 1948, and which fines he did not owe, he having committed no act of omission or commission which could or would justify the Association in imposing said fines upon him. In the alternative, in the event he did owe the fine or fines (which he denies), then he avers that the amount thereof would constitute an asset of the Association and not a fund available for distribution to only a part of its members.

(3) The sum of $30 for the performance of an extra day’s work when, on July 16, 1948, contrary to the rules and customs of the Association, he was ordered to take out the “Narica” from Lake Charles to sea.

(4) The sum of $360 for not being given the opportunity of shifting ships, in accordance with a custom of the Association, during the period of December 1, 1947, through November 30, 1948. This item is no longer 'in contest.

The defendants, in their answer, deny that the item of $61.06 deduction was not a proper charge and they specifically allege that such deduction, in accordance with the by-laws, rules, regulations and customs, was a proper one, and that the controversy had been compromised and settled by refunding t.o the plaintiff, on August 1, 1947, the sum of $53.57, which was accepted by him in full settlement of any and all claims which he might have against the Association in connection with the purported claim of $61.06. i In regard to the fines, the defendants deny that the fines were illegally assessed against the plaintiff; they specifically aver that the said fines were imposed for the violations, or refusal of four specific lawful orders ($50 for each violation or refusal to comply with lawful orders), all of said lawful orders being given to plaintiff in January, 1948. As to the demand in the alternative, defendants deny the same. As to the demand regarding the $30, they admit that the plaintiff did pilot the “Narica” from Lake Charles to sea on July 16, 1948, but deny that plaintiff is entitled to any extra compensation.

On these issues, the suit was tried, resulting in a judgment, with written reasons assigned, in favor of the defendants and against the plaintiff, rejecting, plaintiff’s demand at his costs. He has appealed.

As previously stated, plaintiff is a member of the Association. The members of the Association have joined each other for the purpose of piloting ships to and from the sea to the Port of Lake Charles; they pool all of their income and divide the profit equally after the deduction of operating expenses. They are governed by the Articles of Agreement and by-laws and resolutions adopted. The Association is managed by its Secretary-Treasurer, M. C. Morris, Jr., who, it appears, is not a member of the Association. Within certain limits, the Secretary-Treasurer, has absolute authority to call any member of the Association in an emergency or in case of need, and, according to the by-laws, should anj"' one fail to respond to such call, unless he or the members of his immediate family are seriously ill; that member of the Association is subject to a fine of $50 for each failure to comply with such orders. With such facts in mind, we shall proceed to discuss the merits of plaintiff’s claims in the order demanded in his petition.

It appears from the evidence that the Association owned a pilot boat, “Nonpareil”, which was operated for the benefit of the Association. The plaintiff was active, by that we mean, 'he worked throughout January, 1947. He- became ill and was inactive for the months of February and March, 1947. During the month of February, the boat needed repairs and was put in dry dock. The “Bama” was chartered in the place of the “Nonpareil”, the charter boat costing $375, and the repairs or expenses incurred for the “Nonpareil” amounted to the sum of- $427.42, one-seventh of which amounts to $61.06, the amount claimed in this suit. He bases his claim on the fact that he was “idle”' and did not participate in the earnings for the month of February, 1947. This is so, but plaintiff loses sight of the fact that he had had the use of this boat during January and the prior months. The evidence reveals that the repairs were brought about by the previous use of the boat and not by any accident or usage during the month of February. The itemized account filed in evidence showing the amount expended on the boat in February, 1947, consists of such items as “Cash (Various items, crew meals & cash spent by S. Vaughn & Clooney) ; Coastal Marine—Repairs to propellor; Haymark Shipyard'— Hauling out & Labor; Home Supply Co.— Boat Material; Bradley’s Machine Shop— Shop work; Swift Service Station—Boat Material.” In other words, these repairs or expenditures were made necessary by the general wear and tear occasioned by usage of the boat. No other boat expense was charged to him. It is a fact that at first he was, charged with one-seventh of the charges for the “Bama” charter but this was refunded to him. It is evident that the repairs made upon the boat must have been necessary to have caused another boat to be chartered. Regardless of his contention that the Articles of Agreement make no provision for a boat expense payment when a pilot is “off the books,” we are, like the trial judge, of the opinion that it is “no more than equitable that the plaintiff should pay his portion of the charges of the repairs on the boat upon which he and the other members of the Association depend for making a living.”

The next claim of the plaintiff is for a refund of $200 for which he was fined. According to Mr. Morris, the plaintiff was fined four times during the month of January, 1948, for refusing and failing to comply with four distinct orders given to plaintiff Fy Mr. Morris, .'viz.:

(1) On the morning of January 15, 1948, to sail the tug “San Marcos”' from the Cities Service Refining Company docks to sea;

(2) On January 16, 1948, to go on watch at Cameron and commence his duties at midnight on the 16th of January, 1948; '

(3) On the same day and date, to go on watch at Cameron at 10:00 o’clock a. m. on the following day, January 17th, and finally,

(4) To go on watch at Cameron at 5:00 o’clock a. m. on January 18, 1948.

We feel that it is unnecessary to go into great detail as to the controversies which gave rise to the alleged orders and their disobedience. Suffice it to say that it is the contention of plaintiff that he was not emphatically given orders as outlined supra, but was misled by Mr. Morris, while Mr. Morris testified that he gave to plaintiff what he considered an order, and that he thought he had made himself clear at each time that it, was an order.

Counsel for plaintiff concedes that solution of the question as to whether the orders were given depends upon the veracity of the testimony of the two witnesses, that is, plaintiff and Mr. Morris, and contends that we should accept the veracity 'of the testimony of the plaintiff. Fortunately, the trial judge has seen fit to give us written reasons and has solved the question for us. He states:

“The four fines which were assessed against the plaintiff, in the opinion of this Court were properly assessed. It is very apparent that the plaintiff has little regard for the Secretary-Treasurer of the organization, either for his veracity or jitdgment. However, since the Secretary-Treasurer has been given the authority to direct the business of the organization, the individual must surrender his individuality and become a working member of the association as are all other members of the association.
“It is apparent from the evidence in this case that plaintiff sought to interpose his own judgment as to the time he should be called and the duties.he should perform rather than accept the orders of the Secretary-Treasurer, and although the plaintiff may have been right in that it was not his turn to perform the duty he was called upon to perform, since the Secretary-Treasurer had the right to call upon him to perform the duties and to fine him in the event he did not perform, there is, in the opinion of this Court, nothing that can be done to refund the amounts collected.”

As to plaintiff’s alternative demand that the fines should constitute a capital asset of the Association and should not have been distributed to the other six pilots as was done in this case, we find no merit. Plaintiff does not give any reasons why the fines should so constitute a capital asset while defendant gives us cogent and forcible reasons why the fines should be divided amongst the non-offending pilots. We quote from their brief: “The reason for and the purpose of the penalty is to first require strict compliance by members of the association of the orders issued by its duly authorized agent and, secondly, if the order is not complied with, then certain members of. the association would necessarily be compelled to do the work of the violator. Under such circumstances it necessarily follows that the members should be compensated for the work which they were compelled to perform for the violation.”

In regard to the third claim of the extra day’s pay for work performed in connection with taking out the “Narica” to sea, the evidence shows that plaintiff was “on duty”' at the time that he was ordered to take the ship from Lake Charles to sea. He met the ship and sailed it from its dock to sea. The plaintiff has not cited or referred us to any rule or regulation awarding him extra compensation. Certainly the pilotage fee earned by him would become a part of the earnings of the Association to be distributed as all other earnings of the Association.

Finding no error committed by the trial judge, we therefore affirm the judgment appealed from.

J. CLEVELAND FRUGE, J., sitting ad hoc.


source: Caselaw Access Project

author: JONES, Judge ad hoc.

license: Public Domain

text:
    TATE v. TOWN OF VILLE PLATTE.
    No. 3175.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Paul C. Reed, Ville Platte, for appellant.
    Tate & Fusilier, Ville Platte, for appel-lee.
   JONES, Judge ad hoc.

The plaintiff brought this suit in the district court, seeking to have a certain pipe line, the property of the defendant (the Town 'of Ville Platte), removed from the plaintiff’s premises.

The facts show that in the year 1947 the defendant town contracted with one Louis O. Campbell for the laying of a pipe line from the Town of Ville Platte to the Ville Platte Oil Field in Tate Cove. The property of the plaintiff is situated and lies between the Town of Ville Platte and the said ojl field. It is alleged in the petition that the defendant is in possession of that part of the plaintiff’s property which is occupied by said pipe line, and it is further alleged that this possession is without any title whatsoever tó the said property. The defendant denied all material allegations of plaintiff’s petition and, from the evidence in the case, it is shown that the defendant relied on a verbal contract with Campbell, the contractor, for the authority for' said pipe line to be laid across the plaintiff’s property. Defendant further filed an alternative plea of the prescription of one year as a bar to a possessory action. The trial in the district court resulted in a judgment in favor of the plaintiff, ordering the Town of Ville Platte to remove the gas line from plaintiff’s property within ninety (90) days and assessed all costs of the proceedings against the defendant town. From this judgment the defendant has taken a suspensive appeal.

Even though it is not urged by the defense that the defendant Town of Ville Platte is a political, subdivision of the State of Louisiana, possessing the power of eminent domain, this is a factor which necessarily must be taken into consideration in order to reach a proper conclusion in this cause.

While it is true the defendant town, through its agent Campbell, did not obtain written authorization for the construction of defendant’s pipe line across the plaintiff’s property yet the evidence reflects that the plaintiff did know of the construction of said pipe line and consented thereto. Further than this, he permitted the pipe line to remain on his property for a period of many months before making any objection and it was not until over two years after the said pipe line was constructed; that he filed this suit seeking to have said pipe line removed from his property.

Article 2626 of the Louisiana Civil Code provides as follows: “2626 (2604) Expropriation — Inherent right. — The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the laws, any particular property, is tactily subjected to the obligation of yielding it to the community, wherever it becomes necessary for the general use.”

Under the provisions of Section 2860 of Dart’s General Statutes, Rev.St. § 1479, as amended by Act No. 176 of 1928, it is provided that the state or any political corporation or subdivision thereof must expropriate for public works. A reading of this section of the statute shows that one of the purposes for which the state, or a political sub-division thereof, must expropriate property is that of piping and marketing of natural gas for the purpose of supplying the public with natural gas.

In construing the above-cited article of the Civil Code and Section 2860 of Dart’s General Statutes, the Supreme Court of this State, in the case of Gumbel v. New Orleans Terminal Company, 186 La. 882, 173 So. 518, held that a railroad, as a public utility, possessing the power of eminent domain, acquired a servitude for railroad purposes across plaintiff’s land by actually constructing tracks across the property and using the tracks for many years in its operations as a public utility, to the knowledge and with the consent and acquiescence of the owner of the property. This was the holding, irrespective of the fact that there was no written authorization for the railroad right-of-way across the property. At page 520 of the opinion in 186 La., at page 520 of 173 So., the Supreme Court said: “In these circumstances, we find ample warrant for applying in defendant’s favor the well-recognized doctrine of acquisition of a servitude by unopposed use for a public purpose.”

And further, 186 La. on page 520, 173 So. on page 520, the court used the following language from the case of St. Julian v. Morgan’s Louisiana & T. R. Co., 35 La.Ann. 924, at page 925: “Having thus permitted the use and occupancy of his land and the construction of a quasi public work thereon without resistance or even complaint, he cannot afterwards require its demolition, nor prevent its use, nor treat the Company erecting it as his tenant. He is not debarred from an action for damages by reason of the taking of the land and for its value, but having acquiesced in the entry and encouraged if he did not -invite it, he cannot afterwards affect to treat it as tortious. Considerations of public policy, not less than the suggestions of natural justice, require that in such case the owner shall not be permitted to reclaim his property free from the servitude he has permitted to be imposed upon it, but shall be restricted to his right of compensation.”

Further, on page 520 of said opinion, in 186 La. on page 520 of 173 So., the Supreme Court said: “And the application of the doctrine is not dependent upon the lapse of any specific prescriptive period and even a brief period of occupancy and use of the-property by a public utility, with the knowledge, consent, or acquiescence of the landowner, will suffice to effectuate the doctrine in favor of the utility.”

And further, quoting from the case of St. Julian v. Morgan’s Louisiana & T. R. R. & S. S. Co., supra, the following language was used: “Slight acts of acquiescence on the part of the owner will estop him from interfering with the running of a railroad. He will not be deprived of his claim for damages, or his right to enforce it in all proper modes, but if he has, in any sense, for the shortest period, clearly given the corporation, either by his' express consent or by his silence, to understand that he did not intend to object to their proceeding with the construction and operation, he cannot, on nonpayment of compensation, maintain ejectment.”

The holding of the Supreme Court in the Gumbel case, 173 So. 518, was reaffirmed by the Supreme Court in the case of Gumbel v. New Orleans Terminal Company, 190 La. 904, 183 So. 212, and at page 213 of the opinion said: “* * * when the corporation has the right of eminent domain, the land owner waives his right to insist that the creation and exercise of the servitude be preceded by an expropriation proceeding and estops himself from asserting that right and restricts himself to'a claim for damages or compensation when he fails to object to the actual exercise of a servitude for a purpose of public utility on and across his property. * * *”

Thus, since the Town of Ville Platte was using the said pipe line for the distribution of natural gas, it unquestionably had the right to exercise the power of eminent domain for the reason that it was engaged in a governmental function for the public use. Therefore, even though the 'defendant did not acquire the servitude by written authorization it did acquire it by unopposed use for a public purposfe for the reason that the evidence not only shows that the plaintiff acquiesced in the pipe line remaining on his property many months without making objection thereto-but he also gave verbal permission for it to be constructed. Under the circumstances, his only recourse is an action in damages for compensation.

The district judge held that this servitude, being connected with land, was an incorporeal right and, consequently, in order for the town to have had a servitude on the property it was necessary that said town show that it was in writing. This is ordinarily true, but where the one who claims the servitude has the power of eminent domain, and has actually used the property with the acquiescence of the owner, then the rule that the agreement evidencing the servitude must be in writing does not apply. We feel certain that had the defense been urged in the trial court that this defendant had the right to expropriate the property and had used it for many months without objection by the owner, then, the holding of the trial court would have been the same as the views herein expressed.

Accordingly, for the above and foregoing reasons, the judgment of the trial court will be reversed and there will be judgment rejecting the plaintiff’s demand; the plaintiff to pay all costs.

DORE, J., not participating.


author: ELLIS, Judge.

text:
    PAGE v. MARCEL.
    No. 3188.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Pettigrew & Duval, Houma, for appellant.
    A. Deutsche O’Neal, Houma, for appel-lee.
   ELLIS, Judge.

This is a suit by the plaintiff Joseph H. Page, doing ’business in the name of the Page Insurance Agency, in which he alleged that he operates a general insurance agency in the city of Houma, Louisiana, and that he sold and delivered to the defendant various and sundry insurance policies which are fully described in the petition. Plaintiff further alleged, and it is admitted by the defendant, that he sold defendant a total of seven policies, five of which were taken with the Keystone Mutual Casualty Company and the other two were cancelled and credit given for the unearned premiums. He alleged that the total amount of the premiums was the sum of $1442.29 of which amount the defendant had paid $332.15, leaving a balance due on the account of $1054.14.

Defendant filed an exception of no cause or right of action and the plaintiff amended the petition in which he alleged that at the special instance and request of the defendant he allowed the defendant credit “but that defendant knew that petitioner would have to and did' pay the various insurance companies for the policies purchased by defendant and that petitioner did actually pay for all of said policies.”

The defendant answered and admitted the purchase of the policies described in the original petition but further alleged that the five policies of insurance with the Keystone Casualty Company were can-celled and rendered useless on June 26, 1947 by virtue of the fact that this company, domiciled in Pittsburgh, Pennsylvania, was dissolved on that date by an order and decree of the Court of Common Pleas of Dauphin County, Pennsylvania, and that the Insurance Commissioner of the Commonwealth of Pennsylvania was directed to take possession of the property of the company and to liquidate its business and affairs. Defendant further in its answer set forth that the plaintiff was not entitled to claim the full premium for the said policies but must credit the defendant with the return premiums due on the date the policies became ineffective and can-celled due to the failure of the company as of June 26, 1947. The District Court rendered judgment in favor of the plaintiff as prayed for and from this judgment the defendant has now appealed. The exception of no cause or right of action is not being urged on appeal as the supplemental petition cured the deficiency in the original petition.

The evidence discloses that the defendant owned a fleet of taxi cabs and the plaintiff solicited his public liability insurance business and, as the defendant was unable to pay the premiums, it resulted in the plaintiff paying the full premiums for one year with defendant’s consent. The defendant agreed to repay plaintiff in quarterly installments and did pay on the indebtedness $332.15 which the manager of the plaintiff company stated was the first installment and the only one paid by the defendant. The plaintiff has proven by documentary evidence as well as the testimony of the manager of the business that it paid the premiums as alleged.

Counsel for plaintiff, in his 'brief, stated that there is no proof made that the Keystone Mutual Casualty Company was dissolved and no proof is made that the Keystone Mutual Casualty Company could not and is not able to meet its due obligations. He himself introduced a notice from the Special Deputy Insurance Commissioner of the Commonwealth of Pennsylvania to the Page Insurance Agency dated August 18, 1947, and on the letterhead it states: “Liquidation Division, Insurance Department, Commonwealth of Pennsylvania, 327 Fifth Avenue, Pittsburgh, Pennsylvania. In the Liquidation of the Dissolved Keystone Mutual Casualty .Company,” notifying the plaintiff of the appointment of an ancillary receiver for this insurance company and in which it states that the company is dissolved. Also introduced by the plaintiff is a letter to the Page Insurance Agency from the receiver appointed in Louisiana. This letter is dated August 1st, 1947 in which it states that the insurance company in question “was dissolved by an order ‘and decree of the Court of Common Pleas of Dauphin County, Pennsylvania, as of June 26, 1947.” Counsel for plaintiff was, therefore, in error.

The effect of the decree of dissolution of the Keystone Mutual Casualty Company on June 26, 1947, coupled with the appointment of a receiver was the cancellation or termination of all outstanding policies by operation of law. 44 C.J.S., Insurance, § 129, page 698.

In American Jurisprudence, Vol. 29, page 100, Section 71, the effect of such a decree is stated as follows:

“While there are some contrary decisions, the general rule appears to be well established that on the adjudication of insolvency of an insurance company or upon the entry of a decree of dissolution upon a ground other than insolvency, the outstanding policies of the company are automatically cancelled * *

In Louisiana, the general rule is recognized. In Michel, Secretary of State, v. Southern Ins. Co., (Tyler Canning & Pickling Co., Intervenor) In re Whitney Central Trust & Savings Bank, 128 La. 562, 54 So. 1010, Ann.Cas.1912C, 810 the Court said:

“The sole question presented is whether the injunction against the company from further proceeding with its business 'and the appointment of a receiver to settle its affairs operated a cancellation of all of its outstanding policies at the date of the decree.”
* * * * * *
“The proposition that a bankrupt insurance corporation may go on earning premiums and incurring losses does not commend itself to our judgment, either from a legal or practical standpoint, and in this jurisdiction is repelled by both the letter and spirit of Act 105 of 1898. Under that statute any company whose capital stock is impaired to the extent of 25 per cent, or whose assets are insufficient to justify its continuance in business is 'deemed insolvent,’ and may be proceeded against by the Secretary of State as 'an insolvent corporation.’
“Upon application by the Secretary of State to the proper court, the judge is authorized, upon notice ‘and hearing, to issue a decree perpetually enjoining the corporation ‘from further proceeding with its business.’ Such a decree necessarily brings the current business of the company to an immediate standstill, and destroys the corporate capacity to do or perform any act that would change the situation as it existed at the date of the decree.
“Act 105 of 1898 is read into all policies of insurance issued or operative in the state of Louisiana, and every policy holder is charged with notice that his policy may be canceled by operation of law in Case of the insolvency of the insurance company.”

In Federico Macaroni Mfg. Co. v. Great Western Fire Ins. Co. et al., 173 La. 905, 139 So. 1, 2, 79 A.L.R. 1256, the Court recognized the general rule and stated it as follows:

“The rule is stated in 32 C.J. pp. 339, 340, §§ 102, 103, as f'ar as is applicable here, thus:
‘While there is authority to the contrary, the generally recognized rule is that a decree of dissolution or an adjudication of insolvency, coupled with the appointment of a receiver, cancels or terminates outstanding policies by operation of law, and subsequent losses under such policies are not liabilities which may be enforced against the receiver. * * * Holders of policies on which premiums have been paid for a term extending beyond the insolvency or dissolution of the company have valid claims for unearned premiums, and this is so even though there is no provision in the policy for refunding premiums paid.’
“The rule is stated in 14 R.C.L. 853, § 20, substantially the same, viz.:
‘While there are some contrary decisions, the weight of authority supports the proposition that, on the judicial adjudication of the insolvency of a stock insurance company and the appointment of a receiver, the outstanding policies of the company are ipso facto canceled, and that a claim for a loss thereafter occurring is not a provable claim against the company. The policy holders are creditors for the value of their policies at the time of the breach thus occurring, which in most cases is the pro rata return premium,’ etc.

“The doctrine stated was recognized by this court in Michel, Secretary of State, v. Southern Insurance Co., 128 La. 562, 54 So. 1010 [Ann.Cas.1912C, 810] and by the courts of other states in the following cases, cited in appellant’s brief, viz.: Moren v. Ohio Valley Fire & Marine Insurance Company’s Receiver, by the Court of Appeals of Kentucky, 224 Ky. 643, 6 S.W.2d 1091; Doane v. Millville Mutual Marine & Fire Insurance Co., by the Court of Chancery of New Jersey, 43 N.J.Eq. 522, 11 A. 739; People v. Commercial Alliance Life Insurance Co., 154 N.Y. 95, 47 N.E. 968; In re Equitable Reserved Fund Life Association, 131 N.Y. 354, 30 N.E. 114; People ex rel. Attorney General v. Life & Reserve Association, 150 N.Y. 94, 45 N.E. 8; Commonwealth ex rel. [Kirkpatrick] Attorney General v. American Life Insurance Company, by the Supreme Court of Pennsylvania, 162 Pa. 586, 29 A. 660 [42 Am.St. Rep. 844]; People v. Metropolitan Surety Co., 205 N.Y. 135, 98 N.E. 412, Ann.Cas. 1913D, 1180; Fogg v. Supreme Lodge of United Order of Golden Lion, 159 Mass. 9, 33 N.E. 692; Burdon v. Massachusetts Safety Fund Association, 147 Mass. 360, 17 N.E. 874, 1 L.R.A. 146; Boston & A. R. Co. v. Mercantile Trust & Deposit Co., by the Court of Appeals of Maryland, 82 Md. 535, 34 A. 778; Todd v. German-American Insurance Co., 2 Ga.App. 789, 59 S.E. 94; Fuller v. Wright, Insurance Commissioner, 147 Ga. 70, 92 S.E. 873, L.R.A.1917E, 1139; Johnson v. Button, Insurance Commissioner, 120 Va. 339, 91 S.E. 151; Lucas v. Pittsburgh Life & Trust Co., by the Supreme Court of Appeals of Virginia, 137 Va. 255, 119 S.E. 109; State ex rel, Gibson v. American Bonding Co., by the Supreme Court of Iowa, 206 Iowa 988, 221 N.W. 585.”

The Court then held that the general rule was not applicable and in departing from the general rule held:

* * * that the general rule that a judicial decree appointing a receiver or liquidator for an insolvent insurance company terminates the outstanding insurance policies is not applicable to a case where the court that rendered the decree had not jurisdiction over the person of the policyholder, and especially where the latter had no notice of the decree, and hence no opportunity to protect himself by obtaining other insurance.* * * ”

In the case at bar, it is conclusively shown that the manager of the plaintiff's business on the 26th day of June, 1947, the same da}' of the decree of dissolution, went to the defendant and told “him that it would be necessary for him to obtain other insurance as he had received notice that the Keystone Mutual Casualty Company was to be or had been dissolved. The record does not show when plaintiff received this notice, but it must have been prior to or possibly on the same day as the decree of dissolution for it was on that day that the defendant surrendered his policies to the plaintiff who in turn mailed them to the Commonwealth of .Pennsylvania, as he did all other policies in this company which he -had sold. Thus, the facts in the present case can easily be distinguished from those in the Federico case, supra.

Again, in the case of Dolhonde v. Tangipahoa Bank & Trust Company, La.Sup., 153 So. 71, 73, the Court stated:

“ * * * The facts herein show, however, that the asserts were placed in the hands of the liquidators for administration and settlement. In the case where a receiver is appointed, the doctrine is, if we remember correctly, that the, obligations which are incurred by the defunct corporation under its contracts are by authority of the state canceled and annulled.

The Dolhonde case, supra, was cited with approval by the Supreme Court in Williams v. De Sota Bank and Trust Company, 189 La. 245, 179 So. 303, 305, as follows:

“In the case of Dolhonde v. Tangipahoa Bank & Trust Co., La.App. 1st Circuit, 153 So. 71, it was held that where a bank is closed by the banking commissioner under the provisions of Act No. 300 of 1910, and its assets sold, that this was a complete dissolution of the bank and its legal existence was ended. See, also, First National Bank of Selma v. Colby, 21 Wall. [609] 640, 22 L.Ed. 687, 689; Thomas v. Marine Bank & Trust Co., 156 La. 941, 946, 101 So. 315; People’s Bank & Trust Co. v. Louisiana State Rice Milling Co., 10 La.App. 401, 119 So. 779; Michel v. Southern Insurance Co., 128 La. 562, 54 So. 1010, Ann.Cas.1912C, 810; Levy v. Union Indemnity Co., La.App., Orleans, 146 So. 182.”

This court, with Judge Ott as its organ, in Tangipahoa Bank and Trust Company v. Guwang (Same v. Arthur et al.), 15 So.2d 148, stated:

“Professor McMahon, in his treatise on Louisiana Practice, Vol. 1, page 161-163, under the heading of ‘Parties Plaintiff’ states that in the liquidation of certain types of corporations under special statutes such as banks, insurance companies, homestead associations, etc., the receiver or liquidator is the proper party to bring suit in his official capacity for the reason that the insolvency of such a corporation and the placing of it in the hands of a receiver or liquidator has the effect of dissolving the corporation and forfeiting its charter. He cites in support of this conclusion the cases of Michel v. Southern Ins. Co., 128 La. 562, 54 So. 1010, Ann.Cas.1912C, 810, and Levy v. Union Indemnity Co., La.App., 146 So. 182, where it was held that the appointment of a receiver for an insolvent insurance company had the effect of terminating its corporate existence.”

Also, see Owens et al v. Allied Underwriters, Supreme Court of Louisiana, 207 La. 437, 21 So.2d 490, which cites with approval the cases above cited and follows .the general rule .as laid down in those cases, and also distinguishes the Federico case, supra.

Although the insurance policies were cancelled by operation of law on June 26, 1947, there is also no doubt from the evidence that they were cancelled on that date by mutual consent. It is shown that plaintiff requested and obtained the policies from the defendant and told him that it would be necessary to protect himself with other insurance, mailed the originals to Pennsylvania, and stamped the agent’s office copies, which were introduced in evidence, “Cancelled June 26, 1947” with blanks for days in force and the earned and unearned premiums so much. There can be no question but that the policies were cancelled as of June 26th 1947 by operation of law as well as 'by mutual consent.

Where an insured is the holder of policies on which premiums have been paid for a term extending beyond the insolvency or dissolution of the company, he has a valid claim against the insurance company for the unearned premiums on the pro rata basis, and it is equally true that if the premiums were unpaid at the time of insolvency or dissolution of the company, such policyholders are liable to the receiver or liquidator for so much thereof as has been earned, but they are not liable for the unearned residue, that is, premiums for the unexpired term of insurance. 44 C.J.S., Insurance, § 129c, page 699. This is the contention of counsel for defendant and he would be correct if the plaintiff was the insurance company, but in the present case the facts are clear that the plaintiff loaned to or advanced on behalf of the defendant $1442.29 which was paid to Keystone Mutual Casualty Company to cover premiums for one year on the public liability insurance policies belonging to defendant.

Under the facts in this case, the defendant alone could claim the unearned premiums from the company and is entitled to same from the company. The Keystone Mutual Casualty Company is liable to the defendant for the unearned premiums, and it is equally true that the plaintiff is not, under the facts or law, responsible for these unearned premiums. Call the obligation sued upon herein a loan, an advance on ’behalf of the defendant, or a straight out payment of premiums for the defendant by the plaintiff, it still would be a personal account due 'by the defendant to the plaintiff, and under the facts in this case and the law, the plaintiff is entitled to recover. This case is nothing more nor less than a suit on a personal account for money loaned or, at least, a suit by an insurance agent for premiums advanced or paid on behalf of an insured for which he is entitled under the law to personally sue for and recover, regardless of the insolvency or dissolution of the company or cancellation of the policies. Defendant cannot offset unearned premiums against this debt, neither is the plaintiff given the right under the law nor is any authority shown under the facts in this case for plaintiff to collect the unearned premiums from the insurance company in order to satisfy the defendant’s obligation. The question of the collection and payment of unearned premiums is one strictly between the insured, defendant 'herein, and the insurer, Keystone Mutual Casualty Company.

In the case of Janvier & Company v. Fritz, La.App., 180 So. 172, 173, in which there was an exception of no cause or right of action filed, based upon the contention "that an agent for an insurance company cannot maintain an action in its own name for a premium due its principal.” The Court in considering the question statfid:

“Considering the exception in that light, we find that the pertinent allegations of the petition are to the effect that the plaintiff is a general insurance agency and, as such, sold and delivered certain policies to defendants. There is nothing in the record which qualified or enlarged upon this statement in the petition — no allegation and no proof that plaintiff had paid its principal, which is shown to be the Travelers Insurance Company, the amount of the premiums sued for or that it is in any way responsible for their payment.
"In Corpus Juris, Vol. 33, p. 67, we find the following:
‘Ordinarily an insurance agent has no right to sue for the premium due on a policy negotiated 'by him, even where he is authorized to collect the premium. However, if a note for a premium is payable to him, individually, he may maintain an action thereon; and, if the agent negotiating the insurance pays the premiums, 'he is entitled to recover the amount thereof from insured. Under some circumstances the agent may so recover, even though he has not actually paid the premium to the company. An action to recover a premium may in a proper case be brought by an agent in the name of the company to the agent’s use. Ordinarily an agent cannot sue in his own name to recover a premium, unless he is entitled thereto by way of assigment or subrogation. However, he may sue in his own name where the company holds him liable for premiums and he has paid the one in question.’
“In the case of Weisman Insurance Agency v. Bass, 14 La.App. 207, 127 So. 635, decided by our brethren of the Court of Appeal for the Second Circuit, it was held that an agent for a number of insurance companies could maintain an action in its own name for premiums due its principal without alleging a subrogation, where it was alleged that ‘the amount of said premiums were charged against it by the insurance companies and that it 'had paid the said amounts to the insurance companies.’
“In Barry & Brewer v. Wright, 168 Miss. 216, 150 So. 186, the Supreme Court of Mississippi, citing the Weisman Insurance Case, held that:
‘Where insurance company looks to agent for premiums and agent pays premium which insured fails to pay, agent is sub-rogated to all rights and remedies of company respecting premium and may demand and sue for it in his own name.’ (Syllabus by the Court.)
“In the case at bar there is no showing by way of allegation or proof of any fact which would take this case out of the general rule that an agent cannot maintain a suit in its own name or an insurance premium due its principal.”

The plaintiff herein was entitled to sue in his own name and recover the amount sued for from the defendant, as he has definitely proven that he actually paid this amount as premiums to the Keystone Company for and on behalf of the defendant and by agreement with the defendant. In support of defendant’s contention that the policies were cancelled as of June 26, 1947 and that on August 1, 1947 plaintiff himself must have thought that the defendant only owed him personally $374.00, defendant has offered in evidence a bill rendered by the nlaintiff to the defendant on August 1st, 1947 which states: “Balance due on policies canceled June 26, 1947 — $374.00.” While it might be true that the plaintiff was of the opinion that he could collect the balance of the earned premiums from the defendant and then collect the unearned premiums from the insurance company, there is no positive proof of this in the record. However, under the most favorable effect that might be given to this document, the bill in question could not be considered as estopping the plaintiff from exercising the rights accorded him by law.

Counsel for defendant argues that: “To permit the agent to collect an unearned premium, where he has cancelled the policy, would be giving him the right to sell an insurance policy, pay the premium himself, then cancel the entire insurance and still collect the entire premium from the entire .premium from the insured, who would be in the position of having no insurance and yet responsible for the entire premium.” There is nothing in the record to show that the agent has collected or been permitted to collect any unearned premium, nor is it shown that the agent cancelled the policies, rather, they were cancelled by operation of law and by mutual consent. The record is devoid of any proof as to the final condition of the Keystone Company other than it was dissolved and a receiver appointed. There is no mention made in the record of either party to this suit having called upon the Keystone Company for any unearned premiums nor that any 'have ever been paid. The collection and payment of any unearned premiums under the facts in this case is strictly a matter 'between the defendant and the insurance company, Keystone Mutual Casualty Company.

It is, therefore, ordered that the judgment of the District Court be affirmed.

ROBERT D. JONES, Judge, sitting ad hoc.


author: DORE, Judge.

text:
    PALMER v. PENTON LUMBER CO., Inc.
    No. 3205.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.

      Gahagan & Pierson, Natchitoches, for appellant.-
    Edward K. Alexander, DeQuincy, for appellee.
   DORE, Judge.

This is a suit under the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, wherein it is alleged that on and prior to July 14, 1948, the plaintiff was employed by defendant at its sawmill at De-Quincy, in Calcasieu Parish, Louisiana, in work commonly known as “dogging” and that while so working on the date aforesaid, he was very suddenly, violently and accidentally struck in the stomach with a large slab that had been thrown in his direction by what is known as the “steam nigger”; and that as a result thereof, he “suffered a rupture, a strained and sprained back, a disturbance of the spinal column and other internal injuries”, and that thereafter it was necessary for him to undergo an operation, and that as a result, he has remained totally and permanently disabled from doing work of any reasonable character. The petition shows that his weekly wage was Thirty-Five ($35.00) Dollars per week and that he received compensation at the rate of Twenty Dollars ($20.00) per week from the date of his injury to September 14, 1948, a total of eight weeks, but that he has been refused compensation since September 14th, and moreover, has been forced to expend Three Hundred Dollars ($300.00) for medical expenses. He prays for compensation at the rate of Twenty Dollars ($20.00) per week, plus legal interest on each instalment from its maturity, and Three Hundred Dollars ($300.00) for medical expenses less the eight weeks compensation heretofore paid.

The defendant admits the employment and further admits that the compensation rate of Twenty Dollars ($20.00) was correct. In its answer, defendant sets forth that it has paid to plaintiff the sum of One Hundred Sixty-Five Dollars ($165.00) cash and compensation checks, by reason of plaintiff’s disability resulting from his injury and that the last compensation check was paid on September 23, 1949 (1948). In further answering, defendant shows that plaintiff returned to work on August 9, 1948 and worked for five consecutive days through August 13, 1948; that he also worked on August 16, 1948, and on August 18, 1948, and was paid by defendant by payroll checks for the said days he worked; that he did not return to work again and was paid thereafter by insurance checks. The answer further sets forth that plaintiff failed to call for his compensation check on September 30, 1948, on which date said check was payable, or at any subsequent date, and that plaintiff in effect left his home at defendant’s lumber camp on September 25th without complaining and without any request for further compensation; that defendant has always been willing, and is still willing, to pay any and all compensation actually due plaintiff under the laws of the State of Louisiana.

In addition to its answer as summarized above, the defendant company filed a petition setting forth that plaintiff claimed that he was totally and permanently disabled, which was denied by defendant; that defendant has repeatedly requested plaintiff to submit to a physical examination to determine his condition, and that plaintiff has failed to do so, and that therefore, the defendant desired and prayed for a rule to show cause why plaintiff should not submit himself to a medical examination. The rule as prayed for was issued on March 3, 1949, and an answer thereto was filed on April 5, 1949, but apparently no hearing was had thereon, and it was referred to the merits, as it appears from the record that the case went to trial on the merits on April 20, 1949.

After t'he trial on the merits, Judge Hood, for written reasons assigned, rendered judgment in favor of the defendant, dismissing the plaintiff’s demands at his costs. From this judgment the plaintiff has appealed.

It is admitted that the plaintiff was employed as alleged and sustained the accident alleged on July 14, 1948, and that the correct rate of compensation is Twenty Dollars ($20.00) per week, if he is entitled to compensation. The defendant denies, however, that the injuries of which plaintiff now complains resulted from the accident.

The only direct testimony introduced by plaintiff is his own testimony and that of Dr. James N. Seale of Jasper, Texas.

Plaintiff states that he is thirty-three years of age and that at the time of his injury he was engaged in “dogging”, which he admits is not heavy work. He further states that at the time of his employment he had an inguinal hernia, or hernias, which he had had since childhood. He testifies, however, that as a result of being struck in the pit of the stomach with a severe blow, he fell over backwards on a banister, and as a result, suffered a rupture in the upper part of his abdomen, about the mid-line and above the navel, referred to by the physicians as an epigastric hernia, and also suffered an injury to his back; that later he was operated on for the hernia, but that the operation failed to correct the condition. In other words, his claim is not based on the inguinal hernias which he had prior to the accident, but on this alleged new hernia and on the injury to his back. It is shown that the reason he was given light work at the sawmill was .because of the inguinal hernias which he had prior to the accident.

It is shown that immediately after the accident he was taken to the Douglas Qinic in DeQuincy, where he remained for about one week, and that while there, Dr. Bishop made several attempts to examine him, but was unable to do so because plaintiff was not cooperative; that he left the clinic on his own accord and without the consent of the doctors in charge of it;, that he returned to work for defendant on August 9th and worked for approximately five days cleaning up around the sawmill; that thereafter, he complained of pain and that defendant then sent him to Dr. Drez for examination and treatment.

Dr. Drez testifies that he diagnosed his condition as a congenital epigastric hernia, which he felt was unconnected with the accident, but in any event, he recommended, and with the consent of the defendant, performed an operation on the plaintiff to repair this hernia. It is shown that the operation was performed on September 15, 1948, and .that plaintiff was discharged from the hospital on September 21, 1948, at which time .the operation appeared to be entirely satisfactory. Dr. Drez states that he advised the plaintiff to “take it easy” for some eight or nine weeks thereafter, and that he did not see the plaintiff again until one week before the trial. In describing the operation, Dr. Drez states that he was assisted by Dr. Bishop; that they found a small round hole in the fascia under the skin through which hole a' little piece of fatty tissue was protruding and was held firmly in place by adhesions; that incisions were made above and below the fatty mass to free it and it was then pushed back in and thus reduced. His testimony and that of Dr. Bishop is that the only incision made was on the outer skin and that the peritoneum was not touched. He states that a few days before the trial he found that the overlapping of the fascia had pulled loose so that the plaintiff now has a potential hernia, but he is of the opinion that plaintiff is now better able to work than he was before the accident because the fatty tissue is now free and no nerves are involved.

The testimony of Dr. Drez is corroborated by Dr. Bishop and both doctors are of the opinion that the epigastric hernia in no way affects plaintiff’s ability to perform the work he was doing at the time of the accident or any other work of a similar nature. Both of these doctors deny that plaintiff ever complained of any injury to his back.

On the other hand, plaintiff’s doctor, Dr. Seale, testified that when plaintiff came to him for examination on October 10, 19-18, he complained of pain in his back and upper abdomen, and gave a history of the accident which occurred at the sawmill on July 14, 1948, and the subsequent operation. At that time Dr. Seale found the operation to be an apparent success, hut upon subsequent examination several months later, he found a hernia in the anterior portion of the upper abdomen, which he diagnosed as an “inci-sional hernia”. He further testified that plaintiff has an intestinal obstruction caused by adhesions resulting from the operation, and in his opinion, plaintiff is not able to do any work requiring physical exertion because of this condition and danger of internal organs being forced through the hernia and becoming strangulated. Dr. Seale also found a condition in plaintiff’s back which he diagnosed as a myoma, a muscle tumor, and from an examination of X-ray pictures, he found a good deal of calcification in the lower back area, which he diagnosed as “hypertrophic arthritis of the fourth lumbar joint and the lumbo sacral joint”. It was his opinion that plaintiff had sustained a fracture of the vertebrae in this area at some time in the past, and that this fracture could have occurred as recently as July 14, 1948.

With reference to the latter part of Dr. Seale’s testimony, it must be noted that had plaintiff sustained a fracture of his lower back in his accident of July 14, 1948, it would seem that he certainly would have complained to Dr. Drez and to Dr. Bishop of severe pain in his back at that time. Also, it must be noted that had he sustained the severe fall on his back which is claimed in this case, certainly there should be some witness to corroborate his statement in that respect. It is admitted that he was struck in the stomach by a slab but the only statement we have with reference to his falling backwards on a banister is plaintiff’s own testimony. It is not shown that he was working alone in his duties of “dogging”, and on the contrary, it seems apparent that someone else was operating the carriage from which the slab was thrown in his direction.

The medical tetimony is somewhat contradictory because Dr. Drez and Dr. Bishop seem to be. of the positive opinion that the abdominal condition of plaintiff in no way affects his ability to work and does not create any danger. On the other hand, Dr. Seale seems to be of the opinion that the condition is dangerous and prevents plaintiff from engaging in physical exertion. We believe that the trial judge explains the contradiction by bringing out that Dr. Seale was unaware of the fact that in the operation there was only a skin incision with no disturbance of the peritoneum.

It is noted that the trial judge personally examined the plaintiff during the trial, and that he did find that plaintiff had in the upper part of his abdomen, about the mid-line and above the navel, a very slight bulging or protruding of the outer skin when plaintiff coughed, about the size of the end of a lead pencil. The trial judge also observed a mass or tumor about the size of an adult hand on his back, just below the shoulder blade and just to the right of his back bone.

It seems clear, therefore, that at the time of the trial the plaintiff had these two abnormalities, which possibly can be connected with his accident, or, in so far as the abdominal condition, with the operation. However, even if we conclude that they are connected with the accident, it does not appear that it has been proved that even these conditions render him disabled within the terms of the compensation act.

As observed by the trial judge:

“The plaintiff in this case, as in all other cases, is charged with the burden of proving his case by a preponderance of evidence. Powell v. American Employees Ins. [Co., La.App.], 14 So.2d 333; Gill v. Aetna Casualty Ins. Co. [La.App.], 23 So.2d 343; Hemphill v. Tremont Lumber Co. [La.App.], 24 So.2d 635.”

It may be observed in conclusion, that it is shown by the testimony of Dr. Drez that plaintiff was supposed to recuperate in some eight or nine weeks subsequent to the operation which he performed on September 15, 1948, and that his last compensation check was given on September 23, 1948. Therefore, the plaintiff is entitled to compensation for these eight additional weeks which he never received.

For these reasons assigned, the judgment appealed from is hereby reversed and set aside. It is now ordered that there be judgment herein in favor of plaintiff and against the defendant, granting unto plaintiff compensation at the rate of $20.00 per week, beginning on September 23, 1948, for a period of eight weeks, with legal interest on each instalment from due date until paid. Defendant to pay all costs.

J. CLEVELAND FRUGE, Judge, sitting ad hoc.


author: JONES, Judge ad Hoc.

text:
    CORMIER v. GRIMMETT & JANES et al.
    No. 3181.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.
    Waldo H. Dugas, Lafayette, Kaliste J. Saloom, Jr., Lafayette, for appellant.
    Maurice T. Mouton, Lafayette, for ap-pellees.
   JONES, Judge ad Hoc.

This is a suit for damages, which it is alleged resulted from an unlawful trespass by the defendant on the plaintiff’s real property during the construction of a parish-wide drainage project. The defense to the suit is that whatever entry was made on the property of the plaintiff by these defendants was done so by them as representatives and agents of the Department of Public Works of the State of Louisiana, and pursuant to the direction and authority of said agency. From a judgment dismissing said suit the plaintiff has appealed.

The material facts and issues in this cause are the same as those presented in the case of Chargois v. Grimmett & James et al., which was decided by this court on the 30th day of June, 1948 — a rehearing having been denied on August 9, 1948. This case is reported in 36 So.2d 390.

Just as in the Chargois case, the defendants here are representatives and agents of the state and they cannot be sued ex delicto for damages while carrying out a governmental function, unless it is shown that said agents were guilty of negligence. It is neither alleged nor proved that the defendants were guilty of negligence and, since here the defendants stand in the same relative position as the State, or the Department of Public Works thereof, they cannot be held liable for trespass because they are granted the same immunity as is applicable to the State. The record is bare of any negligence by these defendants in connection with the work and, accordingly, they cannot be held liable herein for the reason that they were prosecuting a governmental function for a governmental agency. See Dupont v. Thibodo, La.App., 5 So.2d 383.

Accordingly, the judgment of the lower court is affirmed at appellant’s costs.


text:
    TURNER v. MARYLAND CASUALTY CO.
    No. 3204.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Julius T. Long, Shreveport, for appellant.
    King, Anderson & Swift, Lake Charles,, for appellee.
   ELLIS, Judge.

Plaintiff has filed this suit on behalf of his minor son claiming compensation for total disability from the Maryland Casualty Company as insurer of the Allen Parish Police Jury for an alleged injury to his son on August 4, 1947, while employed by said Police Jury.

To the petition the defendant filed an exception of no right or cause of action which was sustained by the Lower Court and from which judgment the plaintiff has appealed.

The exception filed by the defendant and the ruling of the lower court in sustaining same was based upon an allegation of the plaintiff’s petition which reads as follows:

“2. That on or about August 4, 1947 in the Parish of Allen, Louisiana, about sixteen miled (miles) north-west of the town of Oberlin, Louisiana, while the said Kenneth W. Turner was in the employ the Police Jury of Allen Parish, Louisiana, at a weekly rate of pay of twenty-one dollars per week or a daily rate of pay of three and 50/100 dollars per day and was performing services arising out of and incidental to his employment in the course of the business of the said Police Jury of Parish of Allen, Louisiana, of building and repairing highways, the said Kenneth W. Turner in his work in connection with a, grader and on a highway of the said parish, stepped upon a clod or some other object in and on the said highway causing him to fall and when he got up immediately fell again, causing and resulting in the-serious, permanent impairment of his right hip, right leg and pelvic area, fraettiring and dislocating his right hip bones and bone of his right thigh and pelvis bones, totally and permanently disabling the said Kenneth W. Turner to do work of any reasonable kind.”
* * * * * *
“4. That the said Kenneth W. Turner is issue and child of the marriage of petitioner and Vernice Horton which occurred in the Parish of Allen, Louisiana, on or about September 5, 1926; that the said Kenneth W.' Turner was born on June 30, 1932.”

The defendant therefore contended in the lower court and again in this court that the petition on its face showed that Kenneth W. Turner, minor son of the plaintiff, •on the date of the alleged accident was less than sixteen years of age and was working in connection with a road grader and that same was a power driven machine and therefore the workmens’ compensation act -of Louisiana did not apply to the minor at .the date of the accident.

This contention is based upon Act No. 210 of 1944 which amended Section 8 of Act No. 301 of 1908, and upon Paragraph 6 of Section 3 of Act No. 20 of 1914, as amended,. Act No. 85 of 1926. Also, Kennedy v. Johnson Lumber Company, La.App., 33 So.2d 558, and Honeycutt v. National Automobile & Casualty Insurance Company, La.App., 41 So.2d 119.

The material and pertinent part of the district court’s opinion is as follows:

“According to the allegations contained in plaintiff’s petition, Kenneth W. Turner was under sixteen years of age at the time of the employment and accident. The next question presented, therefore, is whether according to the petition he was employed about or in connection with power driven machinery.”
“Counsel for plaintiff argues that the allegation contained in the petition to the effect that plaintiff’s .son was employed in connection with a grader is not sufficient to warrant the conclusion for the purpose of the exception that he was employed about or in connection with power driven machinery. The petition does allege, in substance, that the business of the employer was building and repairing highways and that Kenneth W. Turner worked in connection with a grader. Although there is no specific allegation in the petition to the effect that the grader was power driven, this court is satisfied that a grader used in building and repairing highways is a power driven piece of machinery.”
“Since plaintiff’s son was under sixteen years of age and his work was in connection with power, driven machinery, it is obvious that his employment was prohibited by Act 210 of 1944.”

It will be noted that the learned judge of the District Court recognizes in his reasons for judgment that there is no specific allegation to the effect that the grader was power driven, but that he is personally satisfied that such a grader is a power driven piece of machinery. Such a fact is susceptible of proof and should have been proven. It is not an affirmative allegation that it is a power driven machine. There is. nothing in the petition to indicate that the grader had an engine built in or upon it as a part thereof, nor is there anything in the petition to indicate that it was being pushed or pulled by a tractor or any other power machine at the time of the accident. Under the liberal construction given to the compensation act and pleadings necessary thereunder, it would have been proper to have treated the exception of no cause or right of action as one of vagueness and ordered the plaintiff to amend his petition.

It is also shown by the record that counsel for the plaintiff filed a timely motion for a re-hearing, as well as a supplemental motion for a re-hearing, in which he prayed that he be allowed to amend. In this supplemental and amended motion and application for re-hea,ring it was alleged:

“1. That at the time his minor son, Kenneth W. Turner, was injured as alleged in the original petition herein filed by plaintiff, the said Kenneth Turner was not working in connection with any power driven machinery or power driven grader, but was picking up roots and other similar things in .or on the said highway on which he was at work; that standing near within about ten feet of where said Kenneth Turner was injured was a grader which was not in operation; that in case a rehearing is granted herein, plaintiff will, if permitted by the Court file an amended or supplemental petition setting forth that he was not working in connection with any power driven machinery or power driven grader and was not working in connection with any grader whatever, and that the grader which was standing near where he was injured was not in operation.”
“2. That to support the foregoing allegations plaintiff attaches hereto and makes a part hereof the affidavits of I. N. Horton, Rudolph Reid and Kenneth W. Turner, all to effect that they each saw Kenneth Turner at work immediately before he was injured and at the time he was injured, and know he was picking up roots at the time he was injured and that he was not working in connection with any power driven machinery, and that he was not working in connection with the grader which was standing within about ten feet of where he was injured but was not in operation.”
“3. That if the plaintiff is afforded the opportunity in Court in this case to prove the foregoing allegations and the substance contained in said affidavits, plaintiff can and will produce the testimony of the said parties making the said affidavits to show the said Kenneth W. Turner was not working in connection with power driven machinery when thus injured.”
“Wherefore, the plaintiff T. Gilbert Turner, prays that a rehearing be awarded and granted in this cause, and that plaintiff be permitted to file a supplemental petition in this cause therein stating the substance of the foregoing allegations, and be permitted to prove on the trial of this cause that the said Kenneth W. Turner was -not working in connection with power driven machinery or a power driven grader when he was injured as alleged in this suit. Plaintiff prays for general relief.”

In connection with the above petition, counsel for plaintiff annexed as part of said motion three affidavits as set forth in Article 2 of the application. While there is no specific ruling by the court on the application and supplemental application for re-hearing, it was in effect overruled by judgment signed in open court on May 24, 1949 sustaining the exception of no right or cause of action and dismissing plaintiff’s suit.

In the case of Hollinsworth v. Crossett Lumber Co., La.App., 153 So. 722, 723, it was held:

“An exception of no cause of action will lie in a case arising under the Employers’ Liability Act where the failure of allegation is substantial to the extent that, considered on the merits, it would result only in the rejection of plaintiff’s demand. Dewey v. Lutcher-Moore Lumber Co., 151 La. 672, 92 So. 273; Stearns v. Love Drilling Co., Inc., 5 La.App. 174; Gros v. Millers’ Indemnity Underwriters, 1S3 La. 257, 95 So. 709.
“In workmen’s compensation cases, such an exception is only sustained in extreme cases. Clark v. Alexandria Cooperage & Lumber Co., 157 La. 135, 102 So. 96; McGuirt v. Gillespie, 141 La. 586, 75 So. 419; Pierre v. Barringer, 149 La. 71, 88 So. 691; Stockstill v. Sears-Roebuck & Co., La.App., 151 So. 822; McQueen v. Tremont Lumber Co., La.App., 151 So. 683.”

In Reagor v. First Nat. Life Ins. Co., 212 La. 789, 33 So.2d 521, 522, the Supreme Court through Justice McCaleb stated: “On the other hand, the mere failure of plaintiff to allege a cause of action does not authorize the absolute dismissal of his case. Under the well-established modern jurisprudence, he should have been given the opportunity to supply, if possible, the needed allegations by amendment. See Reeves v. Globe Indemnity Co., 185 La. 42, 168 So. 488; also Wheeler v. Rodriguez, 13 La.App. 97, 126 So. 715, where the case was remanded to allow amendment where defect was due to insufficiency of allegation. To the same effect are Beneficial Loan Soc. of New Orleans v. Strauss, La.App., Orleans, 148 So. 85; Messina v. Societe Francaise De Bienfaissance, La.App., Orleans, 170 So. 801; Arceneaux v. Louisiana Highway Commission, La.App., Orleans, 5 So.2d 20 and Simoneaux v. Gonzales, La.App., First Circuit, 4 So.2d 35.”

Therefore, plaintiff should have been granted the relief prayed for in his original and supplemental motion for rehearing.

It is unnecessary to pass upon plaintiff’s second contention.

It is, therefore, ordered that the judgment of the District Court be reversed and the exception of no cause or right of action be overruled and the case remanded to the District Court, and that plaintiff be allowed and ordered to amend his petition in accordance with the supplemental petition filed in connection with his application for rehearing, and the case then be proceeded with in accordance with law.

J. CLEVELAND FRUGE, J., sitting ad hoc.


text:
    LITTLE et al. v. SMITH et al.
    No. 3202.
    Court of Appeal of Louisiana. First Circuit
    Feb. 17, 1950.
    Ted. R. Broyles, Leesville, for appellants.
    Olin D. Moore, Many, for appellees.
   DORE, Judge.

This is a suit involving the title to the Southwest Quarter (SW^) of Northeast Quarter (NE^) of Section Six (6), Township 1, South, Range 11, West, of Vernon Parish, Louisiana. The facts involved are well established and are as follows:

The above described property was acquired by Joseph Smudriclc by Patent from the United States Government, dated February 25, 1900. Between that date and October 29, 1919, several other transfers of the property were made, and finally, on October 29, 1919, the property was again deeded to Joseph Smudrick, and the title remained in him until June 21, 1930, when he deeded the property to Mrs. R. L. Little, nee Virgie Mathis. It is shown that by some unexplained error the above described property was placed on the tax rolls of Vernon Parish for the year 1927 in the name 'of Anacoco Lumber Company, although Anacoco Lumber Company had never owned the said property. In 1927, because of failure to pay taxes, the property was adjudicated to the State of Louisiana, and in 1928, within six months from the date of the tax adjudication, the taxes were paid by the said Joseph Smudrick to the Sheriff and Ex-Officio Tax Collector of Vernon Parish. There is no showing as to whether or not interest and penalties were included in the payment to the tax collector.

On September 14, 1948, Lewis M. Smith effected a homestead entry on the land in question. Thereafter, on September 29 and again on October 18, 1948, counsel for plaintiffs herein wrote to Mr. Smith, outlining the historj'- of the title to this property and inquiring whether or not he was willing to authorize the cancellation of his homestead application in order that it would not be necessary to obtain a court order directing that the entry be cancelled. The request was never granted, and consequently, the plaintiffs filed this suit on January 7, 1949, naming the said Lewis M. Smith the entryman, W. C. Turner as Sheriff and Ex-Officio Tax Collector, and Mrs. Lucille May Grace as Register of the State Land Office, as defendants in the suit, alleging that the tax adjudication in view of the facts set forth was null and void, and praying for judgment against the said defendants, cancelling and erasing the forfeiture of the property to the State of Louisiana in the name of Anacoco Lumber Company for unpaid taxes for the year 1927, and praying further for judgment against defendant Lucille May Grace as Register, authorizing and directing the said defendant to cancel the homestead entry in the name of Lewis M. Smith, and praying further for judgment in favor of petitioners and against defendant Lewis M. Smith, recognizing petitioners to be the owners of the said property and granting them the possession thereof.

Lucille May Grace, the Register of the State Laud Office, through the Attorney-General of the State of Louisiana, filed an swer in which it was admitted that an entry was granted to Lewis M. Smith as alleged, but further answering:

“That the Register of the State Land Office is not a necessary party in a suit to cancel a tax adjudication, showing on the contrary that under the provisions of Act 73 of 1914, the sheriff and tax collector is the only necessary and proper party in such a suit; that there is no authority in law by which this court can order respondent to deliver a cancellation certificate of an illegal tax adjudication, the determination of the right to such cancellation being within her discretion; that, furthermore, she is not authorized by law to withdraw and cancel the homestead application after the same has been allowed.
“That in the alternative, the plaintiffs .herein have no standing in court because of the failure of the plaintiffs to comply with the requirements of Act 113 of the Legislature of 1938.”

Defendant Smith filed answer denying the material allegations of the petition, and in further answer, setting forth the following:

“Respondent further alleges that the irregularities accompanying the sale were, at most informalities; that any such defects were cured by 2 years’ prescription under the provisions of Article 123.113 of the Code of Practice.
“That respondent has detrimentally relied upon the tax sale of 1927; that plaintiff is estopped from now contesting the-validity thereof.
“Respondent further shows that there-was never a redemption of the property in question, that, although it is admitted that Joe Smudrick paid taxes of 1927 in 1928' after the adjudication to the state had been made, this did not operate as a redemption; that a payment of a debt is not the same thing as the redemption of land sold to satisfy the debt.
“That your respondent was granted permission to effect homestead entry No. 2099 on the property in dispute under Act 235 of 1938; that the provisions of Sec. 2 of said act imply that redemption will not be allowed subsequent to homestead entry.
“That there was never a payment made-prior by the time of adjudication; that in order to show a redemption of property erroneously adjudicated, it is necessary to show a receipt from collector bearing date prior to adjudication.
“That the only defect or informality, if any, concerning the tax adjudication was that the property was assessed in the wrong name.”

Defendant Smith filed' a further answer in which he claimed that on December 15, 1948, upon receiving permission from the Register, he proceeded to cut timber on the land in question and worked for a period of some 23 days clearing the fields, removing debris and establishing works; that as a result of his efforts, he enhanced the value of the soil at least $200.00. He sets forth further that the expense of making liis homestead entry was $10.18; and that assuming the position of plaintiff in re-•convention in the event that he should be evicted from the property and plaintiff declared owner, plaintiff would be indebted -unto him as plaintiff in reconvention to the extent of at least $10.18.

The Sheriff and Ex-Officio Tax Collector filed no answer or pleading, and a default was duly entered against him.

After hearing the case, the trial judge, without assigning written reasons, granted judgment in favor of the plaintiffs, confirming the preliminary default against the defendant Sheriff and Ex-Officio Tax Collector, and decreeing that there be judgment in favor of the plaintiffs and against all the defendants, declaring the tax adjudication in question to be null and void, and cancelling and erasing the forfeiture to the State of Louisiana of the said above described property. The judgment further orders Lucille May Grace, Register, to cancel the homestead entry covering the said described property, and it further recognizes the plaintiffs as owners of the property and as such entitled to the possession thereof.

From this judgment the defendant Lewis M. Smith has appealed. The defendant Lucille May Grace, Register, and the defendant Sheriff and Ex-Officio Tax Collector did not appeal or answer the appeal, nor made any appearance in this Court.

A review of the evidence shows that the title of plaintiffs is well established in that they received a deed to the property from the rightful owner, Smudrick, dated June 28, 193,7. It is also clearly shown that the property was adjudicated to the State of Louisiana for unpaid taxes in 1927, at which time the property was erroneously assessed to the Anacoco Lumber Company, which company had never owned the land in question. It is further clearly shown as set forth hereinabove, that a homestead entry was granted to Smith on September 14, 1948, and that shortly thereafter, Smith was notified by plaintiffs of their title and was requested to effect a cancellation of his homestead entry, to no avail. It is shown that upon securing permission from the Register, Smith, with the assistance of another man, cut pulpwood timber on about eight acres of the land in question; that he and his assistant were paid direct by the purchaser of the pulpwood for the cutting and for the wood itself. Under the permission received,' the income derived from the sale of the pulpwood was supposed to have been invested in improving the land, but apparently the funds derived therefrom were kept by Smith. In any event, it is shown that some eight acres were cleared and that about half of the brush thereon was piled and ready to burn and that the stumps left, according to the testimony, would rot in about one year, and that this land would thereupon be in condition for farming purposes. Towards the end of the trial, upon seeing that defendant Smith could not explain what happened to the funds derived from the pulpwood, his attorney announced to the Court that the re-conventional demand for $200.00 was abandoned, but that the reconventional demand of $10.18 for the cost of the entry was still being insisted upon. It is also clearly shown that the taxes for 1927 were paid in 1928 within six months by the owner •of the property and apparently were paid thereafter'for the subsequent years.

It is the contention of the plaintiffs that the payment of the taxes within the period of redemption amounted to a redemption. It is further contended that' since the .Sheriff, ánd ,Ex-Offic.io Tax Collector and Lucille May’ Grace, Register of the State Land Office of the S'-ate of Louisiana, have failed to appeal, they must be considered as co-appellees. With reference to their second contention, counsel cites the case of Reid v. Monticello, La.App., 33 So.2d 760, 762, in which Judge LeBlanc was the organ of the court and said: “ ‘In matters concerning the right of appeal in cases where there are co-appellees, it is a well settled proposition in our jurisprudence that the appellate court is powerless to revise, recast or amend the judgment appealed from, in so far as the co-appellees aire concerned. Standard Oil Co. of New Jersey v. Perkins et al., La.App., 29 So.2d 502, Maheu v. Employers Liability Assurance Corp., Ltd., et als., La.App., 25 So.2d 363, Thalheim v. Suhren et als., 18 La.App. 46, 137 So. 874, Corbitt et als. v. Hanson et al., 124 La. 108, 49 So. 995.’ ” (Italics ours.)

With reference to the first contention, among other citations set forth by plaintiffs, is the case of La Frenz v. La Baw, La.App., 23 So.2d 780, 781, wherein the court said:

‘The facts show that the redemption of the tax sales was effected, by payment of the amounts necessary therefor, by. plaintiff, La Frenz, into the hands of the Sheriff and Tax Collector, Redemption deeds to the 10 and 30 acre tracts, comprising the 40-acre tract attached by plaintiff, were executed by the Sheriff and Tax Collector of Natchitoches Parish on the 9th day of February, 1943, and duly filed and recorded in the conveyance records of Natchitoches Parish. Regardless of any right which in-tervenor originally might have asserted, it is evident that his rights ceased upon payment into the hands of the sheriff of the sums necessary to redeem.
“It is asserted in brief of plaintiff’s counsel that the redemption monies were actually paid over by the Sheriff to intervenor, through his counsel, but .since this matter does not appear in the record it may not be considered by this Court, and, further, the point is immaterial since the payment of the redemption monies into the hands of the sheriff for the credit of the purchaser at tax sale was sufficient.’ ” (Italics ours.)

We agree with counsel for plaintiff that there is a serious question as to whether or not any relief can be given to defendant Smith by this court in view of the fact that the real party in interest, to-wit, the Sheriff and Ex-Officio Tax Collector, has not appealed and is not before this court. In any event, the main contention of defendant is that since there was no redemption certificate issued by the Sheriff and Ex-Officio Tax Collector subsequent to the adjudication to the State of Louisiana, title to the property remained in the State of Louisiana subsequent to adjudication and could not be attacked after three years because of irregularity thereof; that the prescription of three years applies. We agree with the contention of plaintiff that the payment of the taxes, which must be presumed to have included all interests and costs and penalties due, amounted to a redemption of the property and that the issuance of a redemption certificate by the Sheriff was merely a ministerial act neglected by him.

Moreover, on the question of prescription, it is shown that subsequent to the adjudication, the owner of the property, Smudrick, remained in continuous possession of said property as owner, and later as caretaker for the petitioners herein, after he sold the property to them. This possession amounted to a continual exercise of ownership and therefore, the three-year prescription would not apply.

In so far as the reconventional demand is concerned, we feel that the plaintiffs are not responsible for any expenditures made by defendant Smith, and that on quantum meruit, there is no showing that the property was benefitted as alleged, and as a matter of fact, it appears that whatever acts Smith performed on the property were done in direct conflict to the expressed desires of the plaintiffs. We find no merit to the reconventional demand.

For the reasons set forth herein, the judgment appealed from is affirmed.

J. CLEVELAND FRUGE, J., sitting ad hoc.


author: FRUGE, Judge ad hoc.

text:
    LOGNION v. PETERS.
    No. 3200.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Selby & Hickman, Lake Charles, Lestage & Arnette, Jennings, for appellant.
    Moss & Graham, Lake Charles, Percy C. Smith, Jennings, for appellee.
   FRUGE, Judge ad hoc.

This is an action by plaintiff seeking recovery of damages for personal injuries claimed to have been sustained by him on August 29, 1946, at a pumping plant of the defendant in Jefferson Davis Parish, Louisiana. Plaintiff bases his right of recovery upon the doctrine of res ipsa loquitur but alleges, in the alternative, seven specific items of negligence on the part of defendant as the proximate cause of the accident in which plaintiff sustained his injuries.

The Trial Court dismissed plaintiff’s suit and he appeals.

Defendant admits that plaintiff was injured, denies that the doctrine of res ipsa loquitur is applicable to. this case, denies that defendant was guilty of any alleged act of negligence proximately causing the accident sustained by plaintiff and alleges that the accident was solely and proximately caused by four particular items of negligence on the part of the plaintiff himself. In the alternative, defendant alleges contributory negligence on the part of the plaintiff as a bar to any recovery. Further in the alternative, defendant alleges that the plaintiff was entirely familiar with all of the machinery in the pump house as well as the locale of the accident and deliberately placed himself in the proximity of such danger as existed on the premises and in the operation of the machinery itself and assumed all of the risks involved therein, which should bar any recovery herein.

The facts are that during the 1946 crop season plaintiff, Paul Lognion, farmed in rice approximately 160 acres of land owned by defendant, Ansel Vernon Peters, under an agreement by which defendant was to furnish the land, seed and water, one-half of the fertilizer, and was to pay one-half the costs of weed pulling. In consideration therefor he was to receive one-half the crop raised.

A water well and pumping plant was located on the west side of this tract of land adjacent to ,a public road which ran north and south long said tract, and it was from this well that defendant obtained the water used in irrigating or flooding plaintiff’s rice crop. The pumping plant consisted of a Prim crude oil engine, well, pump and other equipment or machinery used in operating such a pump, all of which was enclosed in a frame house Or shed. The pump was located near the public road and immediately inside the main gate which formed the principal entrance to the 160 acre tract of land.

About 1:30 o’clock p. m. on August 29, 1946, defendant stopped the crude oil engine which operated the pump in order to make some repairs to the pump. He took some parts of the pump to his home where the repairs were made and he returned with the repaired parts to the pump house about 4:00 o’clock that afternoon. He asked his son, Mondell Peters, to assist him in starting the engine, so his son joined him at the pump shortly after defendant arrived there.

Plaintiff, who resided about one and three-fourths miles from the well noticed that the engine was not rünning, and some time between 4:00 and 5:00 o’clock that afternoon he left his house and proceeded toward the pump for the'purpose of assisting defendant in starting the engine. When plaintiff arrived at the pump Mondell Peters was inside the shed getting the engine ready to be started and defendant was leaving the pump house to go to an oil tank on the outside of the shed to pump oil.

Unless the crude oil engine which operated the pump was. hot enough to ignite the oil, it was usually started by heating, in an open fire outside of the pump house, a plug which was known as a “hot plug”. When this plug was heated it was usually screwed into the top of the cylinder of the engine. At this particular time such a plug was being heated in an open fire near the pump house.

A few minutes after plaintiff arrived he took the hot plug from the fire, screwed it into the engine and then proceeded to the air tanks located in the pump house, and opened a valve which released air into' the engine for the purpose of starting it. Mondell Peters, who was at all times on the south side of the engine, operated the oil and water controls as the air was being released and the engine thereupon started.

After the engine started to run, plaintiff left the air tanks and went tO' the clutch lever, which is located on the north side of the engine almost directly opposite from the place where Mondell Peters was standing. Plaintiff then proceeded to push or pull the clutch lever from left to right in order to engage the clutch and cause water to be pumped. After the clutch was so engaged and water began to flow from the well, plaintiff stood up and waited one or two minutes to determine whether the pump, was operating properly. Plaintiff then asked Mondell Peters if the clutch was in, and upon being told that it was, plaintiff stooped over to pick up a piece of wood lying on the floor beneath the clutch handle in order to place said wood as a prop under the clutch lever to keep' it from vibrating.

Just as plaintiff bent over to pick up the stick of wood something struck him on the left side of his face and head with such force that it immediately knocked him unconscious and caused very serious injuries to plaintiff’s head, left eye, teeth and other parts of his body.

Plaintiff contended that at the time of the injury plaintiff was an “invitee” of defendant while defendant arg-ues that plaintiff was simply a “licensee”.

The lower court in its decision did not pass upon the question of whether plaintiff was an invitee or licensee because it considered that the case could be disposed of on other grounds. The court pretermitted the question and assumed that the plaintiff was an invitee at the time of the accident which assumption was most favorable to plaintiff. This court shall not disturb the decision and shall likewise take the position most favorable to plaintiff, namely that plaintiff was an invitee of the defendant because it is convinced that defendant as owner of the pumping house and engine did exercise ordinary care in maintaining the premises in a reasonably safe condition.

Plaintiff contends that- the doctrine res ipsa loquitur applies to this case and that accordingly the burden is on defendant to show the cause of the accident and absence of negligence.

Judge Provosty, in his opinion in the case of Lykiardopoulo v. New Orleans & C. R., Light & Power Co. et al., 127 La. 309, 53 So. 575, 576, Ann.Cas.1912A, 976, stated; “ * * * jn cases where the plaintiff cannot be expected to have any information as to the causes of the accident, whereas the defendant, on the contrary, must be assumed to be fully informed on the subject, and where the accident is of the kind which ordinarily do not occur when due care has been exercised, the rule of evidence is that the accident speaks for itself — res ipsa loquitur — that is to say, that a presumption of negligence arises from the fact itself of the accident. In such cases, the plaintiff not only need not allege that particular acts of omission or commission from which the accident has resulted, but need not even prove them. The accident itself makes out a prima facie -case, and the burden is on defendant to show absence of negligence.”

It is true that an accident of this type does not usually occur but the court believes that the plaintiff was in a better position to know or to determine the cause of the accident than was the defendant or defendant’s son, Mondell Peters.'

The evidence discloses that plaintiff was the only person who could have ascertained the cause of the accident. The defendant was not even present in the pump house at. the time the accident occurred and Mon-dell Peters was on the opposite side-of the engine from plaintiff and could not have possibly seen the clutch handle. On the other hand, plaintiff, himself, testified that when he started to pick up the piece of wood which he intended to brace the clutch handle of the engine with, something hit him in the face. He further testified that the stick of wood which he had stooped to pick up was lying under and directly beneath the clutch handle, and that he was “practically over the lever or maybe a little to one side or the other”. Pie further testified that his face “was still above that lever, just a little bit”. That on cross examination he stated “I remember up until then. I started to stoop. It seemed to me like I had my face pretty close to that lever, somewhere around there close”.

We see from the above stated testimony of plaintiff that he had information as to the cause of the accident, and it is not a case where the doctrine of res ipsa loqui-tur applies, that is, a situation where plaintiff cannot be expected to- have any information as to the cause of the accident and the defendant, on the contrary, is assumed to be fully informed on the subject. On the contrary, the plaintiff in this case is the only person who knows or could have known what happened and he has testified under oath what happened. Under such conditions there is no basis whatsoever for application of the doctrine of res ipsa loquitur.

Further, in practically every definition of the doctrine, it is stated that it is limited to a negligence case where the defendant is in control of the instrumentality involved in the accident. Again, the reason for that element of the doctrine lies in the fact that the defendant, in' a proper case, is in a better position to explain the accident than the plaintiff, where it appears that the accident probably was caused by some defect in the instrumentality or some act of negligence in defendant’s operation thereof. In the case at bar, although it is true that the machinery in the pump house was owned by defendant and was under his supervision, it is also true that the portion of the machinery involved in the accident was, at the time of the accident, under the sole control of the plaintiff himself.

Plaintiff in the alternative pleaded that if the doctrine of res ipsa loquitur was not applicable to this action, that the accident which caused the injuries to plaintiff resulted from the following gross acts of negligence on the part of defendant, to wit:

A. In allowing the ground (floor) of his said irrigation pump house to become greasy, slippery, slushy and unsafe on which to stand or walk in the proximity of dangerous machinery.

B. In allowing the crude oil engine, and more particularly the clutch collar and clutch handle attached to the said pump to become so worn, dilapidated and in such a bad state of repair as to render it unsafe to those who may work around and with the same.

C. In allowing the said machinery, and more particularly the clutch collar and handle to become so worn, unfit and unsafe as . to require a prop or brace made of timber for a stabilizer.

D. In allowing the piece of timber used as a prop or stabilizer for said clutch handle to be kept on the greasy or slippery floor or ground of said irrigation pump house beneath or immediately near a dangerously worn or loose clutch collar and clutch handle.

E. In placing unnecessarily long bolts or pins in the spider gear attached to said crude oil engine so that the extended and lengthy end of said pins or bolts might accidentally come into contact with the spokes or the other part of the drive wheel of the said engine and thereby result in the spider gear being forcefully and suddenly kicked back from the wheel and cause the said worn and ill-kept clutch collar to jerk and throw the handle thereof suddenly out of its normal course, thereby becoming a dangerous instrumentality, striking petitioner unexpectedly the severe blow, as aforesaid.

F. In violating his duty to use ordinary and reasonable care to provide a safe irrigation pump house floor and safe irrigation pump machinery for his employees and invitees.

G. In failing to warn petitioner as his employee and invitee of the dangerous condition of said clutch lever, it being an extremely dangerous instrumentality, which fact was known or should have been known to defendant.

The evidence discloses that none of the alleged acts of negligence stated by plaintiff were present in this case at the time of this accident. The testimony establishes the fact that the floor of the pump house where the accident occurred was not greasy, slippery and slushy as contended by plaintiff. It is true that there were some grease spots on the floor but none at the exact location where the accident occurred. Further, the lower Court, itself, examined the pump house and did not find the floor to be greasy' and unsafe, and plaintiff, himself, testified that he merely was stooping over when the accident occurred and had not slipped.

The testimony of experts on crude oil engines, and other witnesses substantiate the fact that the clutch collar and clutch handle attached to said pump were not worn and dilapidated as to render it unsafe. The evidence discloses that the clutch collar and clutch handle were in a fair state of repair and .that there were no broken parts or parts missing from the clutch mechanism. They further stated that clutch handles of this type and kind all vibrate at some time, even when new and that it was a common practice to use a prop or a pulley arrangement to hold up the handle to- prevent vibration. Although the engine was old, it had been kept in a fair state of repair, and this court can find no negligence on the part of defendant in continuing to operate it in that condition or in permitting plaintiff to assist in start - ing it.

It is alleged by plaintiff (see allegation "E” above) that the clutch handle might have become dislodged from its position and struck him, thereby causing his injury. However, the defendant and his son testified that after the clutch is locked in or engaged the clutch handle cannot move horizontally from side to side and it cannot jump out of gear or become disengaged, unless some external force is applied to it. They were supported in those statements by the testimony of Marshall Crowell, Ralph Lyons and Thomas Compton, all of whom were called as witnesses by plaintiff and were qualified as experts with that type of machinery. It is further established by the testimony that the clutch remained engaged and the pump continued to pump water from the moment the clutch handle was first moved to the right by plaintiff, about one and a half or two minutes before the accident occurred, until about two weeks later.

Therefore this Court concludes that even though plaintiff may have been an invitee of defendant at the time of the accident the defendant exercised ordinary care in maintaining the premises in and around the pump house in a reasonably safe condition.

For the reasons assigned judgment appealed from is affirmed at plaintiff’s costs.