author: FRUGE, Judge ad hoc.

text:
    PACIFIC FIRE INS. CO. v. EUNICE MOTOR CAR CO., Inc.
    No. 3242.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.
    Rehearing Denied June 29, 1950.
    See 47 So.2d 403.
    Bass & Brame,. Lake Charles, for appellant.
    'Chas. F. Boagni, Jr., Opelousas, L. B. Sandoz, Jr., Opelousas, for respondent.
   FRUGE, Judge ad hoc.

This case is up before us for the third time. Our original opinion is reported in 28 So.2d at page 474. Upon rehearing on the 20th day of May, 1947, the opinion being reported in Volume 30 So.2d at page 441, the original judgment of this Court was set aside and the case was remanded to the District Court for the purpose of having filed in the record the answers or copies thereof of interrogatories on facts and articles, and for the purpose' of taking such additional and relevant testimony as either party .would desire to offer.

This is a suit instituted by the plaintiff. Pacific Fire Insurance Company, subrogee of the. Gulf Public Service Company, to recover the sum of Two Hundred and Fifty Dollars ($250.00) paid by the insurance company to the Gulf Public Service Company under its policy of insurance covering a certain 1938 Ford Truck, which was damaged by fire which occurred in the defendant’s garage on the 20th day of November, 1941. The said truck which was owned by the Gulf Public Service Company was- undergoing repairs in the defendant’s garage when a fire occurred in the garage and it was damaged. The plaintiff brought this suit- qn the subrogation clause in-the policy of insurance which it had issued to Gulf Public Service Company -covering the said truck, alleging that the defendant company is liable under the doctrine of res ipsa loquitur.

The defense to the suit is a denial of liability under the contract of bailment between the defendant and the Gulf Public Service Company, and in the alternative .a denial of any breach of duty on its part as to the care required'of it in handling,' repairing and taking care of the truck.

Upon rehearing of this case on May 20, 1947, the case was remanded to the Trial Court, and after the additional evidence was introduced in the District Court, the Honorable District Judge Ad IToc found that this additional data had not added anything new and had not in any way altered his appreciation of the facts involved in the matter and found judgment in favor of the defendant.

The evidence taken in the district court after the case was remanded to said court, consisted solely of the testimony of two employees of the defendant company. These two men were working on the Gulf Public Service Truck just prior to and at the time of the firej which originated at the very place where the truck was located.

One of the employees, a Mr. Gurvis Son-nier, testified that he was employed as a mechanic by the Eunice Motor Car Co., Inc., and that he was working on the Gulf Public Service Company truck at the time of the fire. He testified that he first noticed the fire when he and the other witness, Percy Doucet, had just removed'the gasoline tank from the truck; that the fire was underneath the truck on the floor and that the flames were about two feet high and occupied an area of about two feet in diameter; he further testified that the substance burning, in his opinion, was gasoline; he stated that the first thing he and Mr. Doucet did when they saw the fire was to drop the gasoline tank three or four feet to the floor and that the gasoline tank then and there caught on fire. He opinioned that the gasoline burning on the floor had come from the fuel line which he had disconnected from the gasoline tank.

Mr. Doucet, the other witness who testified after the case was remanded to the District Court, was also an employee of the defendant company and was helping Mr. Sonnier remove the gasoline tank from the truck that was destroyed by fire. His testimony corroborated the testimony of Mr. Sonnier in all respects and when asked whether he or Mr. Sonnier was smoking when the fire was first started or discovered he stated that he was unable to answer the question.

As we held in our original opinion, the doctrine of res ipsa loquitur applies to this case. It is conclusively shown that the fire that damaged the truck started with a kind of explosion; that these two above-mentioned employees were removing the gasoline tank from the truck and that the fire started approximately one and a half feet from the gasoline tank; that an electric drop light was strung across the truck to give light to these two workmen.

The doctrine of res ipsa loquitur gives rise to some sort of presumption or inference of negligence on the part of the defendant. As stated in the case of Jones v. Shell Petroleum Corporation et al, 185 La. 1067, 171 So. 447, 449:

“Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in absence of explanation by defendant, that the accident arose from want of care. 45 C.J. § 768, p. 1193.

“This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz: Maus v. Broderick, 51 La.Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, Light & Waterworks Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am.St.Rep. 505; Willis v. Vicksburg, S. & P. R. Co., 115 La. 53, 38 So. 892; Bentz v. Page, 115 La. 560, 39 So. 599.

“While negligence is never presumed as a matter of law from the happening of an accident, the happening of the accident with its attendant circumstances may justify the inference of negligence. Thus, when the thing which produced the injury is under the control of the defendant or his servants and the injury would not have occurred unless negligence had been present in some form and the facts causing the injury are peculiarly within the knowledge of defendant and not equally accessible to plaintiff, the burden is on defendant to explain the cause of the accident, if he desires to escape from the inference of negligence.”

In the instant case the defendant alleges that the case at hand is squarely within the doctrine laid down in the case of Luke et ux. v. Security Storage and Van Company, Inc., La.App., 24 So.2d 692, which lays down a general proposition of law that a bailee is not responsible merely because the goods which formed the object of the bailment have been destroyed. The court, in the Luke case quoted from the case of Poydras Fruit Company v. Weinberger Banana Company, 189 La. 940, 181 So. 452, the following: “ * * * when the bailee shows that the property was destroyed by fire, and there is nothing in the showing made by the bailee to indicate that there was fault or negligence on his part, the burden of proof rests upon the bailor to show that there was fault or negligence on the part of the bailee.” [24 So.2d 693]

In the instant case we find that the fire was started, or started only a few feet away from two employees of the defendant. Certainly there is a showing that there must have been some fault or negligence on the part of the employees of the defendant, or the fire would not have been started. Further, this case is unlike the Luke case/ supra, in that in the Luke case the fire occurred in the defendant’s warehouse at approximately 5 :00 o’clock in the morning. It was impossible for the defendant to show the cause of the fire and it would have been unreasonable for the court to expect the defendant to show the cause of the fire as it occurred when no one was present in the warehouse and there was no evidence possible of being introduced to show the cause as the building was practically destroyed.

The- court, in the Luke case, was of the opinion as shown by the following quotes, that in certain cases for the bailee to escape liability he must show the cause of the fire:

“Where such a fire occurs, and it is confined within the interior of the premises of the bailee, it is its duty to show all facts of which it has or ought to’have knowledge and, as we said in Royal Insurance Company v. Collard Motors, La.App., 179 So. 108, 110, ‘these facts must not involve negligence on (its) part.’ ”

“It may well be that in many instances, in order to show its own freedom from fault, it will be necessary that the bailee show the exact cause, but where it is possible that the fire originated without fault on the part of the bailee, it need not show that exact cause, provided that without showing it, it can nevertheless establish its own freedom from fault.”

“ * * * In Poydras Fruit Company v. Weinberger Banana Company, supra, the Supreme Court held the defendant liable because it was unable to show the cause of the fire, but there the court said that that particular fire could not have occurred ‘without negligence or incompetence.’ ”

In the case at bar the facts show that the defendant should be able to give the cause of the fire. Two of the defendant’s employees were removing the gas tank from the truck belonging to Gulf Public Service -Company, and that the fire started one or two feet from this gas tank. Unless there was negligence on the part of these two employees of the defendant, this explosion and the resultant fire would not have occurred. The defendant has not, in our opinion, rebutted that inference of negligence supplied by the doctrine of res ipsa loquitur and must therefore bear the loss sustained by the plaintiff.

There is no dispute between the parties to this suit to the extent of the damages to the truck. Therefore for the reasons above assigned it is ordered that the judgment of the Trial Court be reversed and set aside and that judgment be rendered herein in favor of the Pacific Fire Insurance Company and against the Eunice Motor Car Company, Inc., in the sum of Two Hundred. Fifty and No/100 ($250.00) Dollars with legal interest thereon from date of judicial demand and . for all costs of .these proceedings.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    DE HART v. STATE.
    No. 3250.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.
    Theo. F. Cangelosi, Atty. for the Dept, of Highways, D. Ross Banister, Preston H. Huflft, Jos. A. Loret, Asst. Attys. for the Dept, of Highways, all of Baton Rouge, for appellant.
    Pettigrew & Duval, Houma, for appellee.
   DORE, Judge.

At about 3:00 a. m., on July 27, 1945, a truck was driven by E. W. Champagne along the Bayou Dularge Highway in the Parish of Terrebonne. Champagne was accompanied in the truck by several persons, including Adam DeHart. He was transporting these people to the Dulac Packing Company where some were employees and the said Adam DeHart was going to collect for seafood heretofore sold by him. As they proceeded, they came in contact with a ridge in the highway caused by the fact that the State Highway Department had placed a culvert across the highway, and when this ridge across the highway was met by the truck, it caused the truck to bounce, and caused the occupants thereof to be jostled and bumped, and Adam DeHart, in that incident, struck a cross beam overhead on the back of the truck with his head. It is alleged that immediately after this incident the truck driver, Champagne, brought his car to a stop and inquired as to whether anyone was hurt, to which inquiry the said Adam DeHart answered that he had hurt his head very badly. It seems that they then proceeded to their destination, the Dulac Packing Company Plant, located on Bayou Dularge, and that thereafter, DeHart received his payment and went on home by some other means of transportation. Thereafter, he complained of headaches, and finally, suffered a partial paralysis, and on August 18, 1945, he was examined by Dr. W. A. Ellender, at the Ellender Memorial Hospital in Houma, Louisiana, who diagnosed his case as “External dual hemorrhage following blow on head, trans-cerebritis.” On or about August 21, 1945, Dr. Ellender performed a craniotomy decompression, and on or about September 5, 1945, he was permitted to go home without improved condition. On September 17, 1945, he was brought back to the hospital, and on or about September 21, 1945, Dr. Ellender performed another operation described as Trephine of the right parietal area of his head. On October 4, 1945, the said Adam DeHart continued to get worse, but was permitted to go home for the obvious reason that nothing further could be done for1 him medically. -He died on November 30, 1945, allegedly as a result of the injury sustained in the accident described herein.

Mrs. Ida Grey DeHart, his widow, and acting as the natural qualified tutrix of the minor children, and joined by one child, Edmond John DeHart, who was a minor at the time of death, but of the age of majority at the time of the filing of the suit, alleged that the accident was caused through the negligence of the State Department of Highways in that its employees were negligent in the following respects :

“(1) By constructing in the aforede-scribed highway a mound, bump and obstruction twelve to eighteen (12" to 18") inches in height running completely across said highway.

“(2) By failing to erect any signs, place any markers, lights or other warning devices of any nature whatsoever at or near said works' on said highway to indicate to traffic the existence of the aforedescribed mound, bump or obstruction.

“(3) That defendants were generally negligent.”

The petition further shows that the Legislative permission as per Act 317 of 1948, authorized the petitioners to file suit against the State of Louisiana through the Department of Highways of the State of Louisiana.

Petitioners claim damages for loss of support, companionship, love and affection and for pain and suffering- of the deceased, and mental anguish and grief to petitioners, in the total sum of $45,540.00 for Mrs. Ida Grey DeHart individually, and $221,-500.00 (in varying amounts) for the nine children.

An Exception of Lack of Capacity to Stand in Judgment, an Exception of Vagueness and an Exception of Immateriality were filed by the defendant, State Highway Department. With reference to the Exception of Vagueness, the petitioners filed a supplemental petition, setting forth that the’ridge or mound over which the truck ran and on which the accident occurred was'of a width of approximately 4 feet. In the original petition, the height of this mound or ridge was given as 12" to 18" high, but no width thereof was stated.

The defendant then file,d an . exception of no cause or right of action, which apparently was referred to the -merits, and filed an answer denying the material allegations of . the petition, and in effect, making the defense that the culvert in question was placed across the highway in the usual manner, and that there was no negligence on the part of the employees of the State Highway Department,

After trial of the case, the District Judge came to the conclusion, for written reasons assigned, that the accident was caused by the defect in the'highway resulting from the installation of a culvert by the State Highway Department and their failure to have any traffic warnings thereof. The Court also found that as a result of the accident, Adam DeHart suffered an injury to his head which eventually resulted in his death. He rendered judgments in the amount of $11,480.00 for Mrs. DeHart and in the amount of $750.00 each to Edmond John DeHart, Eugia Hillery DeHart and Charles Vanderville DeHart, and the sum of $2190.00. to Thomas Camille DeHart, $2550.00 to ' Floyd Matthew DeHart, $2910.00 to Easton Enos DeHart, $3630.00 to Gardner Lee DeHart, $3990.00 to Wilfred Rufus DeHart, and $5430.00 to Willard Anthony DeHart, the children of the deceased who were minors at the time of his death. The defendant has appealed, asking that the judgment be reversed, or, in the alternative, that it be amended so as to reduce the quantum. The plaintiffs have answered the appeal, asking that the judgment be amended by increasing the quantum and as thus amended, be affirmed. In their answer, plaintiffs pray for an award of $15,000.00 to Mrs. DeHart individually, and $6000.00 for each of the nine children who were minors at the time of the death of Adam DeHart.

In so Ear as .the accident itself is concerned, the evidence seems to be clear cut as found by the trial judge that it was caused by the insertion of a culvert across the Bayou Dularge Highway and leaving the highway in such condition as to create a real hazard. The highway was of shell construction, and in inserting this culvert, a trench approximately 30" deep had to be made, and was made, and in this trench was inserted a culvert 18" in diameter, and thereafter, it was covered with dirt and shell at sufficient height to permit the level-ling thereof upon traffic going over it for some time. There is a conflict:in the testimony as to the height of the mound inserted over this culvert. The witnesses for the petitioner claim that it had a height ranging from 12" to 18" at the time of the accident. The engineers and other highway employees claim that at the time of construction or laying of the culvert, the ridge had a height of approximately 4", and that thereafter, due to traffic, the size of this ridge, which was about 40" wide, reached a height of possibly 7" with a trench in the center approximately 7" in depth.

In any event, it seems clear from the evidence that this ridge, unless seen in time, was bound to cause a car or a truck going over it to bounce, as happened in the case at bar. As pointed out by the trial judge; a neutral witness testified that he drove his Chrysler automobile on this highway after the installation of the culvert, and that he had an experience similar to the truck, although he suffered no injury to himself or damage to his car. As to whether or not the mound was 4" high, 7" high or 18" high, seems immaterial as it was such a hazard as could not be perceived by a motorist using due care unless warned thereof. There is no question that the Highway Department failed to put any lanterns or warning signs indicating to motorists that this culvert had been installed or that there was any danger involved in driving over it. Like the trial court, we are of the opinion that with the absence of such warning signs, the culvert could not be perceived in time to avoid such an accident as was sustained in this case. It was built of the same material as the highway and just prior to arriving at the mound (approximately 150' therefrom), there was a curve in the highway which also made it impossible for a motorist to perceive the mound soon enough to stop before reaching it. Champagne, the driver oí the truck, testified that he was driving at a reasonable rate of speed of 25 miles per hour, and that he did not see the mound until within 40' thereof, and too late to stop before going over it. The trial judge believed his testimony, and we see no manifest error in the conclusion of the trial judge that the testimony was truthful.

In so far as the result of the accident is concerned, it is clearly shown that the back of the truck wherein Adam De-Hart was riding was constructed of cross beams,- with a canvas thereon, and that when this bump on the highway was struck by the truck, Adam DeHart and the other occupants in the rear were jostled and bumped, and that Adam DeHart struck his head on a cross beam. It seems clear that his trouble thereafter was the result of this blow and that his death eventually-resulted from the accident.

It is the contention of the defendant that the culvert was installed in the customary manner according to their practices on highways of this type, and that, therefore, under the law, the Highway Department fulfilled its duty and cannot be held accountable for the accident. We agree with the trial judge that regardless of the fact that the employees of the State Highway Department may have followed the same procedure before in installing culverts, with no mishap to anyone, still, they were guilty of negligence in so installing the culvert without giving any warning signals or signs of any kind to motorists, especially a motorist traveling on a dark night, as in this case. The mound was not of such a size as to be perceived in time to avoid an accident, and was more in the nature of a trap, such as a ditch or tunnel across a highway. We can see no negligence on the part of Champagne, and since he was not negligent, and the accident' did occur, there is no other place to put the blame but on the employees of the State Highway Department.

It is our conclusion that liability on the part of the defendant has been proved.

On the question of quantum, however, we are of the opinion that the awards are excessive as to the minors and not sufficient as to the widow, considering the jurisprudence of this State. The decedent had an income of approximately $250.00 a month, with a life expectancy of 17.40 years, being 55 years of age. He left a widow and nine minor children, three of the nine being self-supporting at the time of trial. An award of the sum of $500.00 to each of the minor children would cover their loss of companionship, love and affection and the pain and suffering sustained by the deceased. In so far as the other six minor children’s loss of support from their father, the' widow now bears the burden thereof, and an award of $6000.00 to be paid to the widow for their benefit is sufficient, and as to the widow, her award will be increased to the sum of $14,000.00, making a total of $20,000.00, of which $6000.00 will be for the use and benefit of the minor children. By revising the quantum, we then have a total judgment of $24,500.00, which we feel is ample under the jurisprudence.

For the reasons set, forth herein, the judgment of the District Court is amended so as to grant judgment against the State of Louisiana through the State Highway Department, in the sum of $20,000.00 to the widow, Mrs. Ida Grey DeHart, of which $14,000.00 is for herself individually, and $6000.00 for the benefit of the six minor children who are under her care and support, and having so been,since the death of their father, to-wit, Thomas Camille DeHart, Floyd Matthews DeHart, Easton Enos DeHart, Gardner Lee De-Hart, Wilfred Rufus DeHart and Willard Anthony DeHart, and awarding to the aforesaid named six minor children and to Edmond John DeHart, Eugia Hillery DeHart and Charles Vanderville DeHart, being the nine children of the plaintiff herein, an additional sum of $500.00 each to cover their loss of companionship, love and affection and the pain and suffering-sustained by the deceased, making a total award of $24,500.00, and as thus amended, the judgment is affirmed.


author: JANVIER, Judge.

text:
    GONZALES v. HANLE.
    No. 19414.
    Court of Appeal of Louisiana. Orleans.
    May 15, 1950.

      Benjamin Washastrom, New Orleans, for plaintiff and appellee.
    R. A. Dowling, New Orleans, for defendant and appellant.
   JANVIER, Judge.

In the Parish of St. Bernard, a few miles below the City of New Orleans, at about eight o’clock on the night of March 6, 1948, young August Gonzales who, at the time, was 19 years of age, sustained physical injuries when he, a pedestrian, was struck by an automobile owned and driven by Ralph Hanle very near to the intersection of Paris Road and the State Highway which parallels the Mississippi River on the east bank and extends from New Orleans to Pointe-a-la-Hache. Young Gonzales had alighted from a public bus, which was on its way in a down river direction, and he was going to an automobile filling station on the other side of the highway when he was struck. His father, Celestino Gonzales, on behalf of his said minor son, brought this suit against Hanle, alleging that the accident had been caused solely by negligence of Hanle, and, on behalf of his minor son and for his own use and benefit, he prayed for judgment against Hanle in the sum of $75,382.50.

Hanle admitted the occurrence of the accident, but denied that he had been. at fault in any way and averred that the accident had resulted from negligence on the part of young Gonzales, ■ who “r.an across the highway, immediately in front of the moving car * * In the alternative that it might appear that Hanle was in any way at fault, he averred that the proximate cause of the accident was not his own negligence but was the contributory negligence of young Gonzales in running across in front of the moving car.

In the Twenty-fifth Judicial District Court for the Parish of St. Bernard, there was judgment in favor of plaintiff and against Hanle in the sum of $843.00, and Hanle has appealed only devolutively.

Plaintiff answered the appeal, praying that the award he increased to the amount originally prayed 'for.

The highway in question, on whi.ch the bus in which Gonzales had been riding was travelling, parallels the river on its east bank and is joined by Paris Road, another highway which, at almost right angles, extends from that road in an easterly direction. This junction point of these two highways is a few miles below the City of New Orleans and is near to that large grove of trees familiarly known as The Packenham Oaks. From a point near the end of the grove of trees and extending towards New Orleans, there is a neutral ground between the two driveways of the highway. That neutral ground is raised above the surface of the driveways. Below that point, in a down-river direction, the neutral ground is not raised, and is about level with the driveways.

Young Gonzales had left New Orleans in the bus and, as we have said, intended to go to a point very near to that intersection, in fact to a filling station which was on the upper side of the Paris Road and some 80 to 100 feet on the east side of the main highway. When the bus stopped just about opposite the end of the Paris Road, Gonzales alighted and waited for the bus to start. He then crossed the river side of the roadway and the neutral ground and either had crossed, or was attempting to cross, the roadway on the other side when he was struck by the automobile driven by Hanle, who was on his way in an up-river direction towards the City of New Orleans.

It is the contention of Gonzales that he had completely crossed the second driveway and was ten feet or more on the east side of it when Hanle’s automobile left its proper position on the highway, turned to its right and ran him down.

It is the contention of Hanle that, just as his car, going at a speed of; about 25 miles per hour, reached a spot only about 20 feet from the point at which Gonzales was struck, the young man, suddenly arid without warning, dashed into the roadway, and that he, Hanle, in- an effort to stop, swerved his car as far as he could 'td its right, but that he -could not 'avoid striking Gonzales, which he did, a few feet on the right of the up-river driveway.

The filling station, which we have mentioned, is located just off the intersection and when Hanle’s car was turned to' its right just after passing Paris Road, it traveled in a direction towards that filling station.

After the accident, Gonzales, who was knocked unconscious, was found lying on the ground about 20 feet from the pumps of the filling station, and, since the record shows that this filling station was quite a distance from the edge of the road, it is obvious that Gonzales had either traveled a considerable distance after reaching the road before he was struck, or he was struck and knocked a considerable distance in that direction. The witnesses all agree that, when found, he'was'lying about 20 feet from the pumps of the filling station and about 20 or 30 feet from the edge of the highway. The record also shows that, in the maneuver which Hanle made in an effort to avoid striking Gonzales, he almost completed a U-turn to his right so that when his car was brought to a stop, it had almost reversed its direction, and was heading, to some extent, towards the Paris Road, and it had gone about 25 feet beyond the point at which Gonzales was found.

Gonzales says that when he intended to cross the highway, he looked first to. his left and saw no vehicle coming in a down-river direction, and then looked to his right, and saw none approaching in an up-river direction. It is very obvious that he did not-.look carefully, because it is certain that Hanle’s car was approaching and that it could not have been very far away, since there is no evidence that .it was approaching at a speed which was in excess of 25 or 30 miles an hour. We say, then, that Gonzales must have been negligent in not noticing the approaching car. .

But - if, by his negligence, young Gonzales placed himself in a position of peril, he may still have a right to recover for his injuries if it is made to appear that when he was in that 'dangerous position/ there yet remained an opportunity for Hanle, had he been exercising care, to avoid him. See Rottman v. Beverly, 183 La. 947, 165 So. 153; Jackson v. Cook, 189 La. 860, 181 So. 195, and innumerable other cases decided since. And the record leaves no doubt in our minds that there was ample opportunity for Hanle to have avoided striking Gonzales had he exercised proper care.

If Gonzales had completely crossed the highway and was walking on the shoulder towards the filling station, then there is no doubt whatever that the proximate cause of the accident was Hanle’s turning aside from the driveway and running Gonzales down from the rear. Even if Gonzales had not completely crossed the driveway, we think it quite certain that he had practically crossed it and that, therefore, during the process of crossing the roadway, he had been in full view of the approaching Hanle car for a- sufficient time for Hanle to have stopped had he been on the alert. We say that Gonzales must have practically crossed the highway because we cannot believe that if he was even near the middle of the highway he could have been knocked by the Hanle car completely across it and some 20 or 30 feet to the right.

There is a circumstance which is not stressed by either counsel but which may, in fact, have accounted for Hanle’s car being off th.e highway to its right and that is that Hanle says that he “was going to stop about 150 feet from the accident at a place of business to get a pack of cigarettes * * There is no place of business on the other side of the road at which he could have stopped for the cigarettes, and it may be that he swerved to his right to go to the place at which he intended to buy the cigarettes and that, as he did so, he saw young Gonzales ahead of him and then swerved again to his right and completed the U-turn which some of the witnesses refer to. Whatever may have been the cause of his turn to the right, we are convinced from the record that had Hanle been operating his car with proper care, he could have avoided striking Gonzales whether the latter was on the highway or had completely crossed it. Consequently, Hanle is responsible and legally liable for such damage as Gonzales sustained.

In the Judgment below he was awarded only $823.00, made up of the following items ■:

For physical pain and suffering $500.00

For damage to suit of clothing 18.00

For loss of wages, 325.00

Since the loss of wages was testified to by young Gonzales, he is entitled to recovery on that item. A minor is entitled to retain the wages earned. See Article 226 of the Civil Code. Since he tes-itfied that he bought the clothes himself and that he paid for repairing the damage sustained by his clothes, he is entitled to that item also.

According to the record of the Charity Hospital, and that is all that we have before us, since no doctor was placed upon the stand, Gonzales’ physical injuries consisted of a skull fracture about three centimeters in length, and a fracture of the upper third of the fibula of his leg. It is almost impossible to read many of the entries of the Charity Hospital record because the photostatic copies thereof are practically illegible. We can make out that a small piece of tantalum was used to close the fracture of the skull and can make out from the record that recovery from that injury and from the fracture of the leg was uneventful. Gonzales remained in the Charity Hospital on his first visit for about four days and returned later and remained in the hospital fourteen days. He says that he can no longer take part in the usual sports engaged in by young men his age, though we have no medical evidence to corroborate this.

Although the record, except for the evidence found in the hospital record, does not contain one word of medical testimony which would assist us in arriving at a conclusion as to the seriousness of the injuries, nor as to whether they will produce any permanent disability ■ or permanently interfere with the normal activities of the young man, it is quite apparent that the amount awarded in the district court is entirely inadequate.

In Webb v. Dunn, La.App., 15 So.2d 129, $2,200.00 was allowed for a fracture at the base of the skull, and in Blanke v. Miranne, La.App., 11 So.2d 264, we allowed $2,500.00 for a somewhat similar fracture. In Gauvereau v. Checker Cab Co., 14 La.App. 448, 131 So. 590, we allowed $3,500.00 for the fracture of a skull where it appeared that the loss of the sense of taste had resulted, and in Dill v. Colley, 3 La.App. 305, for a fracture of the skull and concussion on the brain, we allowed $3,000.00. The fracture in this case impresses us as a very minor one, and although a small plate was placed in the skull, as we read the record, there will be no permanent impairment of any of the senses as a result thereof.

In Blackburn v. Chent, La.App., 42 So.2d 288, we allowed $3,500.00 for the fracture of the leg in the case of an older man who earned his living peddling fruit and vegetables. In Caldwell v. Unity Industrial Life Ins. Co., La.App., 17 So.2d 757, $1,500.00 was allowed for a simple fracture of the leg of a girl seventeen years old. In Le Blanc v. Louisiana Highway Commission, La.App., 5 So.2d 204, $800.00 was allowed for the fracture of both bones of the leg just below the knee. That was in the case of a nine year old boy. In Thomas v. Shippers’ Compress & Warehouse Co., La.App., 158 So. 859, this court awarded $1,500.00 for a fracture of the fibula and injuries to the knee, and in Breaux v. Roussell, La.App., 151 So. 267, we awarded to a truck driver $2,500.00 for a broken fibula.

See, also, Chavers v. A. R. Blossman, Inc., 45 So.2d 398, in which the Court of Appeal, First Circuit, reduced an award of $3,500.00 to a woman for a simple fracture of the fibula by $1,000.00.

There are numberless other cases involving similar fractures and, from all of them, we gain the impression that an award of between $1,500.00 and $2,500.00 for the fractured leg would be consistent with earlier awards and that about $1,-000.00 would be • proper for the fracture of the skull. Taking all of these earlier cases into consideration and also bearing in mind the tremendous increase in the cost of living during the past few years, we have concluded that $3,500.00 should be awarded to the young man for the injuries sustained by him.

The actual monetary losses claimed and allowed are sustained by the record. Accordingly, the judgment appealed from is amended by the increase in the amount thereof to $3,843.00.

As amended, the judgment is affirmed at-the cost of appellant.

Amended and affirmed.


author: FRUGE, Judge Ad Hoc.

text:
    REEVES et al. v. CAILLOUET et al.
    No. 3251.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.

      Porteous & Johnson, New Orelans, Louis B. Porterie, New Orleans, for appellants.
    Ellender & Wright, Houma, for appel-lees.
   FRUGE, Judge Ad Hoc.

This is an action for damages instituted by Mr. and Mrs. Clyde Reeves against Charles J. Caillouet, Shirley Folse and The Eagle Indemnity Company in the sum of Two Thousand Nine Hundred Eighteen and 22/100 ($2,918.22) Dollars.

The plaintiffs allege that on March 1, 1949, they were driving easterly from the City of Houma to New Orleans, Louisiana, on U. S. Highway 90 and that while traveling at . a moderate rate of speed in the vicinity of a place known -as Hollywood Inn which is approximately four miles east of Houma, Louisiana,, their automobile was passed by.iord soft-drink truck, traveling in the same direction, but at a rate of speed considerably faster, said truck’ being owned by the defendant, Caillouet, and being driven by the defendant, Folse, and covered with public liability and property damage with the insurance company known as The Eagle Indemnity Company. The plaintiff had actually named The Glove Indemnity Company in the petition as the insurer, but it was later stipulated and agreed to that The Eagle Indemnity Company was the insurance carrier and was substituted for the Globe Indemnity Company. The plaintiffs further allege that the aforementioned truck, within a short distance after having passed plaintiff’s automobile stopped suddenly on the pavement without warning and that Mr. Reeves, who was driving his automobile, attempted to pass on the left of said truck, but when his line of vision was such that he could not see the left side thereof, he noticed a vehicle coming in the opposite direction and in its proper lane of traffic and therefore he was forced to cut back on the right ■side of the paved highway and in cutting back he came into contact with the left rear portion of the parked truck owned by the defendant Caillouet and operated by the defendant Folse.

The defendants filed an answer of general denial and alleged that the accident was caused solely by the negligence of the plaintiff, Clyde Reeves, the driver of the automobile in that he was driving too closely upon defendant’s truck and at too fast a rate of speed, particularly when the defendant driver gave a proper hand signal before stopping, and further alleged that the plaintiff driver was not looking where he was going, and hence, caused the accident through said negligence. In the alternative the defendants contend that both Mr. and Mrs. Clyde Reeves were guilty of contributory negligence. They allege that as to Clyde Reeves, he was negligent in fob lowing the- defendant vehicle at too close a distance, in failing to keep a proper lookout for the hand signals of the driver of the defendant Vehicle, and in failing to heed the warning and stop sign of defendant’s vehicle. As to the negligence of ■ Mrs. Reeves,; the ■ defendants- contend that she distracted her. husband’s, attention by talking to him, and by allowing her husband, without objection, to follow too closely to the defendant’s truck.

The plaintiff, Clyde Reeves, claimed damages in the sum of $918.22, $500.00 of which represents physical injuries, pain and suffering, and $418.22 representing cost of the repair to the automobile and other expenses caused by the accident. Mrs. Clyde Reeves, the other plaintiff, claims $2,000.00 as damages which represents damages sustained by her from pain and suffering and physical injuries sustained as a result of the collision.

The trial court rendered judgment in favor of plaintiff, Clyde Reeves, in the amount of $768.22, and judgment in favor of Mrs. Reeves in the amount of $1,500.00 against the defendants insólido. From this judgment all the defendants have perfected an appeal and the plaintiffs have answered said appeal, praying that the judgment rendered by the lower court be amended by increasing the judgment in their favor for the full amount sued for. The evidence discloses a lot of contradicting and conflicting testimony.

The trial judge found as the true facts that the automobile of plaintiff was traveling at a rate of speed of approximately 40 miles an hour when it was passed by the defendant truck. The court also found that the truck passed them, the plaintiffs, at a' speed of approximately sixty miles an hour and further found that the impact or collision occurred at a point of approximately eight hundred feet beyond the passing. The court, in appraising the conflicting evidence, stated that the actual passing by the truck took place somewhere between 700 and 800 feet from the point of impact. The lower court had the occasion to hear the testimony of all of the witnesses and this court is not inclined to change any finding of fact by the lower court unless it committed some manifest error in its fact finding.

Plaintiff’s case is predicated upon the truck stopping suddenly, immediately after passing the plaintiff vehicle and for that reason plaintiff could not stop his vehicle in'sufficient time to avoid running into the rear of the truck. There is evidence, and the lower court found that there was a vehicle coming in the opposite direction which prevented plaintiff from going around the soft drink truck as it stopped. Counsel for defendants allege that even if the facts as found by the lower court are •true and correct, still the plaintiff, Clyde Reeves was negligent. He stated that assuming the truck stopped as suddenly as is possible, the stopping would have commenced at a point of 600 feet beyond the point of passing the plaintiff automobile because as shown by the charts which were introduced in evidence a passenger vehicle on a dry concrete surface requires 197 feet to stop. The plaintiff vehicle was found to be going at 40 miles an hour and the defendant vehicle at 60 miles per hour. The difference in their speed is 20 miles an hour and at 20 miles an hour a vehicle travels 29 feet per second. Therefore the gap between the two vehicles would have continued to widen itself at the rate of 29 feet per second. The defendant truck traveling 600 feet at 60 miles per hour traveled 88 feet per second and therefore it would take the truck 6.82 seconds to travel the 600 feet from the point of passing to the point when it would start commencing to stop. And, if in every second after the passing the gap is widening at 29 feet per second, at the end of the 6.82 seconds the gap would be 197.82 feet between the vehicles at the time that the lead vehicle, which is the truck, applied its brakes suddenly. The defendants contend therefore that the following passenger automobile in good mechanical condition and lighter, traveling at a speed of 40 miles per hour could fail to avoid the collision when its stopping distance, including reaction time, is only 126 feet on dry pavement and 171 feet on wet pavement as shown by the charts which were introduced in evidence.

The defense has set forth an ingenious argument as stated in the afore paragraph. However, the defense has failed to note that when the truck, being driven by one of the defendants passed the plaintiff automobile, said passing was an indication to the driver of the automobile that he was not intending to stop the truck immediately. It was natural for the driver of the automobile, the plaintiff to suppose that the truck was not going to stop within seven or eight hundred feet after it had passed him. Even as to a following driver, the court had this to say in the case of Hill v. Knight, La.App., 163 So. 727, 729; “We recognize and approve the rule of law that a following driver should drive at' such a speed and maintain such an interval that he can avoid collision with the leading car, under circumstances whiclq should reasonably be anticipated by him. We do not think the established facts in the instant case called for any anticipation on the part of plaintiff of the gross negligence of defendant’s driver in abruptly stopping his truck, without any signal or conduct suggesting such action or any apparent circumstance calling for it.”

It is true that the well recognized rule of law is that a motorist following another automobile must maintain such speed and such distance from the lead automobile as to be able to meet the usual and ordinary movements of an automobile using a highway. See Cottone v. Jones, La.App., 7 So.2d 401. However, in the instant case we find that the plaintiff automobile was not what we might consider a following automobile but' an automobile which had just been passed by the truck which was driven by" one of the defendant’s, owned by one of the defendant’s and insured by one of the defendant’s. It is réasonable that the plaintiff, when driving this automobile, and driving at a speed of approximately 40 miles' an hour did not anticipate the truck immediately stopping. Further, plaintiff states in his testimony that he attempted to pass the truck on the left, and when his line of vision was such that he could see that his left of the highway was occupied by another automobile traveling in the opposite direction and in its lane of traffic, he did what any driver would do under the circumstances, that is, attempt to go back on the right side of the highway in order to avoid a headon collision. The lower court found tliat there was an automobile coming in the opposite direction and as stated before this court is not inclined to change any finding of fact of the lower court.

In the case of Adams v. Morgan et al., La.App., 173 So. 540, 542, the court said:

“The best and safest rule which it seems possible for the governing authorities and the courts to have formulated is the one which requires the driver of the car following another to maintain such speed and such distance from the lead car as to be able to meet the usual and ordinary movements of a car using the highway. Such in effect is the provision in our own State Highway Regulatory Act, Rule 8(a), section 3 of Act No. 21 of 1932. Whilst he is expected to be prudent in following another car, the driver of the car im the rear can anticipate a reasonable observance of the rules of ihe road and of driving, by the driver of the car ahead of him.” (Italics ours).

This court is of the opinion that the plaintiff, Clyde Reeves, was suddenly placed, in an emergency by the stopping of the-truck and was compelled to act instantly-to avoid injury. Fie was not guilty of negligence because he made a choice as any other person of ordinary prudence placed in the same position might make, that is, he first tried to avoid hitting the stopped truck •by passing said truck in the’ left lane of; traffic, and when he saw an oncoming automobile he was forced to turn onto his right-lane of traffic and was unable .to stop the-automobile he was driving before he hit the-rear end of the truck.

In this case the driver of the truck-had just passed the plaintiff automobile.. He knew that the automobile was right behind him and therefore this Court is of' the opinion that he should be required.to. exercise greater care and caution than if he had had no previous knowledge of the-car being behind him. If this automobile-being driven -by the plaintiff and being-ridden in by the other plaintiff had been-following the truck all of the time, then in that case the driver would not have had-, the knowledge of what was coming directly • behind him, and the degree of care to be-exercised by him might have been lesser. However, since he had just traversed this, automobile occupied by the plaintiffs, and. then as found to be a fact by the lower • court, he suddenly stopped the truck, the - Court thinks and is of the opinion that this. sudden stopping of the truck immediately after he had .passed the plaintiff car was,. negligence on his part, and the proximate cause of the accident.

Since this 'Court has found the proximate cause of the accident was the negligence of the driver, namely Shirley Folse, one of the defendants of the truck and that the' plaintiff, Clyde Reeves, the driver of the automobile was not guilty of any negligence, then necessarily the defendant’s contention as to the negligence of Mrs; Reeves, which alleged to be that she ■ distracted her husband’s attention by talking to him, and by allowing her husband without objection to follow too closely to defendant’s truck must necessarily fall also.

The only remaining question is that of quantum of damages to be allowed each plaintiff. The lower court awarded the plaintiff, Clyde Reeves the sum of Seven Hundred Sixty-eight and 22/100 ($768.22) Dollars. The sum of Four Hundred Eighteen and 22/100 ($418.22) was for the cost of repair of plaintiff’s automobile and other expenses actually incurred by the plaintiff Clyde Reeves resulting from the accident. He was awarded the sum of Three Hundred Fifty and No/100 ($350.00) Dollars for his physical injuries, pain, suffering and anguish resulting from the accident. Careful examination of the record has served to convince us that the award, under the facts established, is neither excessive nor inadequate. ' The plaintiff, Mrs. Clyde Reeves sought damages in the amount of Two Thousand and No/100 ($2,000.00) Dollars. The Lower Court allowed her Fifteen Hundred and No/100 ($1500.00) Dollars. An examination of the record discloses that Mrs. Reeves suffered a sprain of her right ankle, severe with moderate to severe wrenching' or tearing of medial and lateral supporting ligaments and contusions of the chest. It was shown that she remained in a physician’s care for only a very short time. This Court has been more liberal in recent years in allowing awards to plaintiffs for damages because of the decreased purchasing power of the dollar. Nonetheless we believe that a quantum of One Thousand and No/100 ($1,-000.00) Dollars is sufficient for the pain, suffering and inconvenience of the plaintiff, Mrs. Clyde Reeves.

We take the liberty of qhoting excerpts from the learned trial judge’s reasons for judgment: “For "example, styles regulate the height of heels on women’s shoes. No woman wants to be out of style. While my own opinion is that only one woman out of twenty has ankles with eye appeal in high heel shoes, and the appearance of most suffers some detraction because of the wobbly stride high heels induce, nevertheless one’s pride is involved when styles dictate that it is de rigeur to wear high heel shoes on certain occasions, and one’s pride and vanity necessarily suffer when one cannot comply with customs and practices. While the percentages indicate that Mrs. Reeves may fall within the group of nineteen referred to above, the circumstance'cannot in the slightest degree affect a normal desire to be “in style”. Consequently, she will be deprived of the pleasure of being in style, and the mortification she must bear seems to me to be a part of the injury that she suffered and still suffers.”

We agree fully with the trial judge, except that we do not attach as much importance to her “mortification”.

For the reasons assigned, the judgment appealed from is amended by decreasing the amount of judgment in favor of plaintiff, Mrs. Clyde Reeves, to the sum of One Thousand and No/100 ($1,000:00) Dollars, and as amended the judgment is affirmed at appellants costs.


text:
    CANNELLA v. Succession of CANNELLA.
    No. 19463.
    Court of Appeal of Louisiana. Orleans.
    May 15, 1950.

      McGovern & McGovern, D. A. McGovern, III, New Orleans, attorneys for plaintiffs-appellants.
    Guy J. D’Antonio, New Orleans, attorney for defendants-appellees.
   JANVIER, Judge.

This rather involved litigation was initiated by Michael Cannella, a son of the late Vincenzo Cannella, when the former filed a foreclosure proceeding against the succession of the latter on a note for $1,-045.00 secured by mortgage on the latter’s interest in a certain piece of real estate in New Orleans, known as 2411-2413 Royal Street.

The plaintiff, in the-foreclosure proceeding, caused citations, together with copies of the petition, and notices of seizure to be served on all of his brothers and sisters' and the children of a predeceased brother and, haying qualified as the executor of the . estate of his father, he also made himself, as executor, defendant in the foreclosure proceeding.

Vincenzo Cannella, at his death, left seven children and three grandchildren, children of an eighth child who had previously died. The seven living children were Michael Cannella, Mrs. Josephine Cannella, wife of Anthony DiGraci; Mrs. Annie Cannella, wife of Louis Giglio; Mrs. Louise Cannella, wife of Mike Massaro, Anthony Cannella, Joseph Cannella and John Cannella. The three children of the predeceased Vincent Cannella were Vincent Charles Cannella, Jr., a minor, Mrs. Shirley Marie Cannella, wife of Howard Gerald Stanley and Mrs. Muriel Ann Cannella, wife of Louis George Quader. The minor son of Vincent Cannella is represented by his mother, Mrs. James Floyd Porter, whose first husband was Vincent Cannella and who has qualified as his tutrix, and the two married daughters of Vincent Cannella are also represented by their mother, Mrs. James Floyd Porter, under powers of attorney issued to her by them.

In order that the family status may be better understood, we shall divide the eight children of Vincenzo Cannella into two groups, one consisting of three of the sons and the three children of the predeceased son, and the other group consisting of the fifth son, Michael Cannella and the three daughters. When Michael Cannella filed the foreclosure suit,; the first group, Anthony, Joseph, John and the children of the predeceased Vincent Cannella sought to enjoin hipi from proceeding with .the foreclosure on the alleged ground that they were the owners of the property in question; that it did not belong to their deceased father, Vincenzo Cannella, at the time of the execution of the mortgage held by Michael. The other four children, to-wit the three daughters and Michael, intervened — Michael in his individual capacity, as well as in his capacity as executor of the estate of Vincenzo Cannella, and they alleged that the document on which the other group bases its claim, that they were the owners of the property and that it did not belong to their father Vincenzo, to-wit a counter letter from Vincenzo, was a simulation and not genuine. They alleged, in their intervention, that, as a mat-tir of fact, their father Vincenzo had actually bought the -property, that the mortgage executed by him in favor of Michael was genuine and bore- against the property and that after the payment of the amount due Michael, the remaining proceeds should be divided properly among the children according to law.

There was judgment in the Civil District Court for the Parish of Orleans in favor of Anthony Cannella, John Cannella, Joseph Cannella and the three children of Vincent Cannella, enjoining the proceedings under the writ of seizure and sale, and there was further judgment in favor of Anthony Can-nella, John Cannella, Joseph Cannella and the three children of Vincent Cannella decreeing them to be the true and lawful owners of the property in question, and there was further judgment declaring the property to be free and clear of the mortgage executed by Vincenzo Cannella in favor of Michael Cannella-.

From this judgment Michael Cannella and his three sisters appealed devolutively and suspensively to the Supreme Court of Louisiana. When the matter was heard before the Supreme Court, that court “sua sponte” held that it was without jurisdiction ratione materiae, saying that since, in the original suit, that is to say in the foreclosure proceeding, there was involved less than $2,000.00, the appellate jurisdiction should be determined by that amount and was not affected by the fact that in the incidental demand (the injunction proceeding) there was involved the question of title to the property, even though the value of that property exceeded $2,000.00 by a substantial amount. The Supreme Court transferred the matter to this Court. See Michael Cannella v. Succession of Vincenzo (Vincent) Cannella, 216 La. 464, 43 So.2d 795.

The appellees, that is the three sons and the three children of Vincent Cannella (the predeceased son), base their claim to ownership on a counter letter which was. executed by their father by act passed before Guy J. D’Antonio, notary public, on April 22, 1929, but not' registered in the office -of the Register of Conveyances of the Parish of Orleans until August 15, 1942. This is one of the circumstances which is pointed to by the appellants as justifying suspicion as to the genuineness of thát transaction. In this - counter letter it is recited that by act before Felix J. Drey-fous, notary public, on March 17,- 1918, the property was transferred by Louis Spiro to Vincenzo Cannella, but that the title was placed - in Vincenzo’s name only for- convenience and that the property was in reality purchased for the -account of Joseph, Anthony, John and Vincent; that in 1925, by act before Arthur Leopold, notary public, - Vincenzo Cannella transferred -the property to his said four sons who were the actual owners; that in 1927, Vincent Can-nella found it necessary to borrow $1200.-00-, and that in order for Vincenzo to raise this $1200.00, the four sons named transferred the property.to the Italian Homestead Association which, in turn then transferred it to. Vincenzo, the father,, subject to a mortgage, of $1200.00; that the said $1200.00 debt had been paid;- that in the said counter letter Vincenzo declared that he bound -himself, his heirs, executors or administrators to transfer the property to his said four sons when required to do so, without consideration, since he, Vincenzo, in reality had not paid any consideration for the property, and in the said counter letter Vincenzo further declared that the said four sons had put the property in his name “for convenience and for the purpose of giving unto the said Vincenzo Can-nella and his wife, Mrs. Mary Tramuta Cannella, the usufruct and use of the said property- during the life of the said Vin-cenzo Cannella and his wife, Mrs. Mary Tramuta Cannella, without any charges whatever.”

Since the -registration of the counter letter in the Conveyance Office, though made some thirteen years after its execution, was effected before the execution of the mortgage which Michael Cannella seeks to foreclose, it is apparent that any transaction affecting the property had after the recordation would be.subject to the counter letter, if genuine. Therefore, the entire question which faces us is whether or not that counter letter is genuine. Since the Supreme Court, in transferring the matter to us said that we have jurisdiction to pass upon the incidental question of title, we shall consider all of the evidence touching upon that counter letter in an effort to determine whether the three sons and the children of the deceased son have or have not good and valid title to the property in question, since upon that issue hinges the right of Michael Cannella to proceed under the writ of seizure and sale.

Counsel for Michael Cannella and his three sisters, who maintain that the counter letter is a simulation, direct attention at the very outset to the fact, which they chara'c-terize as most suspicious, that although the children claim to own the property and claim that their ownership is evidenced by the counter letter which was executed in 1929, they allowed their father, Vincenzo, to occupy the house from the time of the first purchase, in 1918, in his name but for their account, until his death in 1946, twenty-eight years after the purchase and seventeen years after the execution of the counter letter. They maintain that because of the effect of Article 2480 of our Civil Code, this places upon those who claim under the counter letter the burden of overcoming the presumption of simulation. That article reads as follows: “In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.”

In Mock v. Travis, 7 So.2d 635, 636, the Court of Appeal for the First Circuit considered a somewhat similar situation and said: “Regardless of the question of whether or not the retention of possession by the father in this case shifted the burden on-the defendant of proving the reality of the sale as provided for in Article 2480 of the Civil Code, we are of the opinion that this circumstance must be considered as affording strong proof of the simulated character of the sale. * * * ”

In Dupuy’s Heirs v. Dupont, 11 La.Ann. 226, the Supreme Court held a purported sale to a daughter to be a disguised donation where the facts were as follows: “Several years before his death, a father sold to defendants, his daughter and her husband, half his land and all his slaves. There was no change of possession, and until his death vendor, though vendees lived in his house, continued to control property exclusively as owner, * *

Counsel further call attention to the fact that if the counter letter is a simulation and it is not annulled, it will have the effect of illegally depriving certain of the forced heirs of Vincenzo of their legitime and they assert therefore that because of Articles 2444 and 2239 of our Code it may be attacked by those forced heirs and that parol evidence touching upon the alleged fraud may be offered in an effort to annul the counter letter. Those articles read as follows:

“The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.”

(Article 2444)

“Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the legitimate (legitime).”

(Article 2239)

Counsel cite Spencer v. Lewis, 39 La.Ann. 316, 1 So. 671, and Smelley v. Ricks, 174 La. 734, 141 So. 445, as typical of many cases in which such transactions have been held to be simulations which would have illegally deprived forced heirs of their rights.

There are many suspicious' circumstances which are pointed to by counsel for both groups of litigants. Those who claim under the counter letter say that in 1913 they made arrangements to buy the property from one Louis Spiro and that by act before Felix J. Dreyfous, on May 17, 1918, the property was transferred from Spiro to their father, Vincenzo 'Cannella, for $1,-000.00 for which he executed a note secured by mortgage and that the four of them subsequently paid the note. They contend that they paid it by giving Spiro small, amounts periodically.

. The other group points out that the four who claim to have been paid the note would all have been too young at the time at which they claim to have earned the money with which they paid it, much too young to have earned it, and they say, too, that during a part of that time some of the four sons were in the military service and earning the very meager pay which was given to the members of the military service during the First World War. They say also that the note could not have been retired in small payments made periodically, since endorsements on the note show that it was retired by two payments, one for $400.00 on May 19, 1919, and one for $600.00 made on May 19, 1920. Those who claim title under the counter letter reply that in spite of their tender years, they earned small amounts and devoted them to the making of small payments to Spiro, and they say that though the endorsements on the note would indicate that it was retired in two large payments, the reason for that was that Spiro allowed the small payments made periodically to accumulate and then entered the payments on the reverse of the note when a substantial amount had been accumulated. Spiro’s son, who was placed on the witness stand, apparently without warning that he would be called, says that he handled this transaction for his father .and that small periodical payments were made and that endorsements were entered on the reverse side of the note only when a substantial amount had been accumulated.

There are many facts which are relied on by those who claim under the counter letter as indicating that their father and, in fact, all of his children, well knew that he was not the owner of the property. For instance, it is shown by the testimony of Michael Cannella himself, he being the plaintiff in the foreclosure proceeding and contending that his father who executed the mortgage, was the true owner of the property, that he was- occupying a part of the property as tenant and that he paid rent to Joe who received it for account of himself and his other two brothers and Vincent’s children.

It is admitted by Michael that on October 22nd, 1946, he received from the Federal Rent Control Office a copy of the “Registry” showing that the property belonged to Joseph, Anthony, John and Vincent Cannella and that he did nothing about it. We think this quite remarkable in view of the fact that at that time he was the holder of a mortgage note on the property which he says he thought was owned by his father, who had executed the mortgage.

Michael also admitted that while his father Vincenzo was still living, Joe, one of those who claim under the counter letter, desiring to move into a part of the property, gave notice to the tenant to move on the ground that he, Joe, as one of the owners, wanted the property for his own use. Michael made no contention at that time that Joe was not an owner. It also appears that Michael called upon Joe to have the roof fixed and he admits that “they had it fixed.”

It appears, toO, that Leslie Winn, an employee of the Sewerage & Water Board, on or about November 23, 1946, which was after the death of Vincenzo, the father, went to the property “to read the meter and to get the condition of the premises.” This visit was obviously made because the transfer of the meter was made necessary by the death of Vincenzo.

The record shows that when Winn called he met Mrs. Michael Cannella, the wife of the plaintiff in the foreclosure proceeding, and told her that it was necessary to have some sort of document signed, and that he was told by Mrs. Michael Cannella “to go to the owner to get it signed.”

Even though Michael was executor of the estate of his father, he made no claim against- Joe for rent because of his occupancy of a part of the property and made no claim for the rent which was being paid to Joe by others who occupied a part of the property. Most significant of all, Michael paid his own rent for part of the property occupied by him, and he paid it to Joe and not to himself as executor of his father’s estate.

• There is much conflicting testimony from neighbors and friends, some of whom say that it was' well known that the property belonged to Joe and his group, and some of whom say that everyone knew that the property belonged to Vincenzo.

There is no denying the fact that in 1927 the property stood in the name of Joe Can-•aella and those who now claim with him, and that it was transferred to the Italian Homestead Association and then transferred from that Association to Vincenzo, the father, and there is no contradiction of the fact that this was done because Vincent desired to borrow $1.200.00 which was loaned by the Italian Homestead Association, and we find no contradiction of the fact that this $1200.00 was repaid by Mrs. Vincent Cannella from the insurance on the life of Vincent after his death.

As against these facts, it appears that on June 17, 1945, Vincenzo made a nun-cupative will by public act in which he at least indicated that the property belonged to him, and it is testified to by the notary public who made that will that he did not know who owned the house but that it was his belief that when Vincenzo referred to the “home in which I am now living”, he intended to convey the idea that the property belonged to him. It is shown that one of the brothers, who claim title .under the counter letter, though present in court, did not testify, and this is said to be suspicious. There are many contradictions in the testimony of many of the witnesses as to the amount paid for the property. All in all were it not for the fact that our brother of the district court has found that the counter letter is not a simulation, we would find it most difficult to reach a conclusion on this very much disputed question of'fact. Even, however, if it be conceded that the burden of proof is on those who claim under the counter letter, we think that it cannot be said from this record that the finding of the district court on that question of fact was incorrect. There is ample evidence, if believed, to justify the conclusion that those who claim under the counter letter were actually the owners of the property and, since our brother of the district court believed that evidence, we find nothing in the record which would justify a reversal.

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

Affirmed.


author: HOFFPAUIR, Judge ad hoc.

text:
    HARRISON v. FRYE.
    No. 3257.
    Court of Appeal of Louisiana. First Circuit
    May 15, 1950.

      • Bass & Brame, Lake Charles, for appellant:
    Patin & Patin, Lake Charles, for appellee.
   HOFFPAUIR, Judge ad hoc.

This is a suit instituted by Holt T. Harrison, d/b/a Harrison Paint Company against Edgar L. Frye in the sum of $567.23. The plaintiff alleged that on October 8, 1948, he sold to- the defendant doing business as Petroleum Industries of Louisiana, a paint spray gun with accessories and one gasoline engine compressor for the said sum of $567.23.

During the course of the trial plaintiff attempted to show that the defendant Frye was associated with one W. W. Medlin and that the debt was incurred by a partnership composed of .the defendant and W. W. Medlin. The defense, objected to any evidence offered by plaintiff to show that the debt was incurred by a partnership as being an enlargement of the pleadings because the defendant was sued individually, and it was not alleged in plaintiff’s petition that a partnership had incurred the debt, and if so, the partnership was the proper party defendant. The evidence was allowed and as a result the lower court found that an ordinary partnership existed between the defendant and W. W. Medlin and judgment was rendered against the defendant for one-half of the amount sued upon.

Since the lower court found, and we agree, that k'n ordinary partnership existed between the defendant and W. W. Medlin and the debt which was the basis o.f plaintiff’s suit was incurred by the partnership, this court is of the opinion that judgment could not be rendered against the defendant individually when the partnership was not made a party defendant. It is well settled that a partnership in Louisiana is a legal entity, separate and distinct from the persons who compose it, and during its existence it is the proper party defendant against whom all actions to impose rights against the partnership must be brought and the members of the partnership cannot be sued on a partnership debt during the existence of the partnership unless joined with the partnership itself. See Key v. Box, 14 La.Ann. 497; Wolf v. New Orleans Tailor-Made Pants Co., 52 La.Ann. 1357, 27 So. 893; American Photo Player Co. v. Simon, 151 La. 708, 92 So. 307; Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898; First National Bank in Gibsland v. Knighton Bros., 16 La.App. 407, 134 So. 706; I. L. Lyons & Co., Ltd. v. Southland Ballroom, La.App., 24 So.2d 474; Rheuark v. Terminal Mud & Chemical Co. et al., 213 La. 732, 35 So. 592.

In the instant case wé find that the plaintiff alleges that Frye, the defendant, is justly and truly indebted to him. Nowhere in the petition is it-stated that a partnership existed, between Frye and W. W. Medlin, or that the debt was incurred by a partnership. Since the lower court found that an ordinary partnership existed and that the debt was a partnership debt, the plaintiff’s claim must necessarily fall as against the defendant individually.

Partnerships are terminated in only one of the following methods or causes.

"1. By the expiration of the time for which such partnership was entered into.

“2. By the extinction of the thing, or the consummation of the negotiation.

“3. By the death of one of the partners, or by his interdiction.

“4. By his bankruptcy.

“5. By the will of all the parties, legally expressed, or by the will of any of them, founded on a legal cause, and expressed in the manner directed by law.” C.C. art. 2876.

The fact that one of the partners is absent from the state, and there is no evidence in the record showing that the partnership had ceased to do business in Louisiana does not of itself constitute a termination of its existence. Further, the mere termination of a partnership does not have the effect, ipso facto, of extinguishing the concern as a legal entity. It remains as such for the purpose of liquidation and until its affairs are completely wound up. Duvic v. Home Finance Service, La.App., 23 So.2d 790; Guess & Albin v. Ham, La.App., 183 So. 61.

The law is correctly stated in the case of E. B. Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898-900:

“However, that liability does not become enforceable against the individuals who compose the partnership, separate and apart from the firm, until it has been dissolved. So long as it continues, they must be sued through and with it. Key v. Box, 14 La.Ann. 497.

“ ‘Under the law of Louisiana a commercial partnership is an entity, capable of being sued, is brought into court as de-' fendant by service of citation upon one of its members, and while the ultimate liability of the parties is in solido — i. e., joint and several — they, during the life of the partnership, cannot be charged individually except through the partnership; that is, during the life of the partnership a partner is, like a corporator in a corporation, liable and made to respond individually only through a judgment against the intellectual being of which he is a component part.’ Liverpool, Brazil & River Platte Navigation Co. v. Agar, C. C., 14 F. 615.”

The plaintiff in the instant case had the privilege of filing a supplemental petition impleading the partnership as provided by Article 419 of the Louisiana Code of Practice which he failed to do.

Although in all of the cases cited in this opinion the partnership was a commercial one, the determining factor is a civil law status of the partnership as a legal entity, and not any difference between commercial and ordinary partnerships.

The judgment appealed from is reversed, and, accordingly, plaintiff’s suit is dismissed as non-suit.


author: ELLIS, Judge.

text:
    DRAYTON v. MARYLAND CO. Inc.
    No. 3246.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.

      Wilbur P. Kramer, Franklin, Chas E. Fernandez, Franklin, for appellant.
    Bauer & Bauer, Franklin, for appellee.
   ELLIS, Judge.

Plaintiff is claiming permanent total disability as the result of an alleged accidental injury on or about the 19th day of November, 1948 while in the course of his employment with the defendant.

Defendant admits that the cause of action, if any, is governed by the Workmen’s Compensation Law of Louisiana Act No. 20 of 1914, as amended, but denied that the plaintiff suffered any injury as the result of the accident, denies that he is disabled but, if so, that there is any connection between his disability and the accident.

Judgment was rendered in favor of the defendant and against the plaintiff dismissing plaintiff’s suit at his cost for reasons which were dictated by the trial judge at the close of the testimony and in which he stated that in his opinion the plaintiff had failed “to show by a preponderance of the evidence ‘the injury’ provided for by the Act.” It is from this judgment that the plaintiff has appealed. .

The evidence shows that the defendant operated a “sugar plantation” which consisted of farming operations and also the operation of a sugar mill, and that the plaintiff was employed as a driver of a cane truck; that on the 19th day of November, 1948 he was driving this truck in the course of his employment when he lost consciousness for some unknown reason and the truck ran into the corner of a store building and plaintiff was found on the floor of the truck, foaming at the mouth and his body jerking. He was immediately taken to Dr. C. M. Horton (coroner of St. Mary Parish) who found no evidence of any external or internal injuries. He was of the opinion that plaintiff became’unconscious as the result of an epilepsy seizure, basing this upon -the description of the plaintiff when found. However, the plaintiff contends that he was overcome by gas fumes from the motor of 'the truck which came through a hole in the floor board. It is not proven or shown as to what caused the plaintiff to become unconscious while driving the truck, however, we are not inclined to believe he. was overcome by gas fumes as one window was entirely broken out of the truck.

It is more or less immaterial as to what caused him to lose consciousness, the main question being whether he suffered any injury as the result of the accident which caused or aggravated a tumor-like mass in the upper chest or lower neck which objectively developed, some weeks after the accident.

The plaintiff did not work any more for the defendant, and approximately three weeks, as near as we can ascertain from the testimony, after the accident he went to Dr. Edward F. Jacquet, who practiced in Morgan City, Patterson and Franklin, Louisiana, and this doctor testified that he believed the mass was possibly an enlargement of the thyroid gland and gave symptomatic treatment- for this condition and advised the plaintiff that, if he did not get relief, to come back to his office within eight or ten days, which the plaintiff did. At that time he found no change in the consistency of the mass but did find changes which caused him concern regarding the shortness of breath of the plaintiff and the enlargement of the mass, and he therefore referred the- patient to the Charity Hospital in New Orleans. He found no objective symptoms of traumatic injury, nor did the plaintiff give a history of-, any recent traumatic injury at that time. This doctor did testify that it was possible but doubtful in his mind that his condition was of a traumatic nature or that trauma could have caused or aggravated the condition. He also testified that the plaintiff could have driven a truck in the condition in which he found him on the date of his examination, however, this is somewhat inconsistent with his testimony as to concern over the plaintiff’s shortness of breath and enlargement of the tumor-like mass and with the fact that he referred plaintiff to the Charity Hospital.

The history which the plaintiff gave when he entered the hospital was that “patient states that about two months ago he began coughing, more than usual, he thought he was taking a cold. This coughing was production of about 3-4 tablespoonsful of yellowish sputum per day. About one week later while driving a truck he suddenly became dizzy and fainted.” This, of course, shows that the plaintiff had some sort of chest troubles prior to the accident. Plaintiff stayed two months and two days at Charity Hospital and left without being discharged dr giving any notice to the hospital authorities. His trouble was diagnosed as a tumor. The report shows no traumatic injury nor any claim by the plaintiff that his condition was due to any injury as the result of an accident.

Dr. Bass had never seen the plaintiff prior to the date he gave his testimony and had looked at the hospital report approximately one hour before taking the stand. From the report he testified that to his mind it was not a question of whether the accident was a primary cause of the disability but whether the condition which the plaintiff had (a tumor-like mass) had been aggravated .by any injuries which 'he might have suffered as a result of the injury. He thought it was possible that if trauma existed as the result of the accident that this tumor might have grown thus due to aggravation, but he also testified that this same condition which the plaintiff had could have been found in a person who had not been subjected to trauma.

In addition to the above testimony, there were five lay witnesses who were acquainted with the plaintiff and who. testified that prior to the accident he had been able to work and that subsequent thereto he had not, and that shortly after the accident the swelling had developed in his throat and around his neck. The main complaint of the plaintiff was that he was dizzy, which the doctors were unable to attribute to the tumor-like mass.

We therefore have a case of a man who was working without any discomfort or trouble and who had an automobile accident but who, evidently 'had had some chest or throat trouble prior to the accident and who, within three weeks thereafter, developed swelling in his neck and chest and experienced difficulty in breathing; who complained after the accident of his head and chest hurting and of dizziness but the doctors were unable to testify that the conditions which caused the swelling and shortness of breath had any connection with or might have been caused by any injury suffered in the accident, apparently believing that the condition existed, prior thereto, but admitting that there was a possibility that such a condition was subject to aggravation by an injury. However, the doctors who examined him testified that he had no such injury and the condition, therefore, could not have been aggravated as a result of the accident. In addition, the medical testimony was to the effect that he was able to drive a truck, which was his occupation at the time of the injury.

Taking all of the testimony in the record, we do not believe that the accident resulted in any injury to the plaintiff which caused or aggravated his condition. The fact that there might be a possibility that his condition was aggravated as the result of an injury in the accident is not sufficient. We agree with the trial judge that plaintiff has failed to prove “an injury” which brought on or aggravated his condition.

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


text:
    UNITED DISTRIBUTORS, Inc. v. NOLAN (MAGNA CORPORATION, Garnishee).
    No. 3248.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.
    Appellant unrepresented on appeal.
    Guyton H. Watkins, New Iberia, for ap-pellee.
   FRUGE, Judge ad hoc.

This was an action filed on an open account by plaintiff against Charles A. Nolan, d/b/a Old Spanish Trail Industries. After personal service on the defendant, the legal delays having expired, a preliminary default was entered and after the three day delay, the defendant having failed to answer plaintiff’s petition, the preliminary default entered on the 12th day of November, 1947, was confirmed and made final on the 2nd day of December, 1947.

After final judgment, the plaintiff made The Magna Corporation garnishee alleging that the Magna Corporation had property in effects in its possession or under its control belonging to the said Charles A. Nolan. An order was signed by the Honorable Trial Judge making The Magna Corporation garnishee and ordering them to answer the accompanying interrogatories under oath within ten days from service as the law directs. Thereafter, on the 26th day of November, 1949, a copy of the petition making The Magna Corporation garnishee, the interrogatories and the order of court was served on The Magna Corporation through one of its registered agents for service. After the delays expired, The Magna Corporation having failed to answer any of the interrogatories served upon them, judgment “pro confesso” were given against The Magna Corporation in favor of United Distributors, Inc., plaintiff, on the 13th day of June, 1950. Thereafter, the garnishee, The Magna Corporation, perfected a sus-pensive appeal furnishing bond according to law.

The case came up before this Court for argument and the defendant appellant was neither present nor did it submit a brief to this Court. Counsel for plaintiff appellee was present but did not argue the case and submitted the case without brief.

This Court has examined the record and finds no defects or errors patent therein.

Therefore, it is ordered that the judgment appealed from is affirmed; all costs to be borne by defendant.


author: PONDER, Justice.

text:
    217 La. 413
    CITY OF NEW ORLEANS v. RICCA.
    No. 39766.
    Supreme Court of Louisiana.
    April 24, 1950.
    Lautenschlaeger & Gamble, New Orleans, for defendant-appellant.
    Henry B. Curtis, City Attorney, Charles E. Cabibi, Ass’t. City Attorney, New Orleans, for plaintiff-appellee.
   PONDER, Justice.

The defendant is appealing from a judgment of the district court ordering him to specifically perform his agreement to purchase property located in the City of New Orleans known as Le Breton Market consisting of real estate and improvements.

An ordinance was enacted by the Commission Council of the City of New Orleans on March 18, 1949 directing and authorizing the Commissioner of Public Property to advertise and sell the property known as Le Breton Market. The property was duly advertised and adjudicated to the defendant for the price of $35,000.00. The defendant refused to comply with the agreement because the city had no record title to the property. In this suit the city is seeking to compel the defendant to accept a prescriptive title based on the city’s actual possession of the property as owner for a period of more than thirty years.

We have examined the record and find a copy of a deed showing that the city acquired the buildings on this property from one Mills Judson in 1852; a survey made in 1876 of this and of adjoining property shows that the property was recognized as public property; the property was leased by the city to a private individual in 1893; in the year 1907 the city engineer was authorized to pave the vacant lot in the rear of the building; the property has been exempted from taxes as the property of the city; and certain tenants have testified that as far back as 1890 that rent for the use of the property has been paid to the city.

There is no evidence to show who were the prior owners of the property except as to the building' thereon. There is no evidence to show that the property was ever owned or severed from either the state or federal government.

No possession however protracted can confer on an occupant title to any property that stands in the name of the State or United States. State v. Aucoin, 206 La. 787, 20 So.2d 136. Prescription does not apply to minors and interdicts. Articles 3522, 3554 and 3541, R.C.C. Tyler v. Lewis, 143 La. 229, 78 So. 477. It would be impossible to know whether or not there may be minors and interdicts involved in the absence of any evidence of a prior record ownership of the property. Moreover, if there exists a conflicting chain of title and other parties who are not made party to the suit any decision rendered would not be binding on them. Praegner v. Kinnebrew & Ratcliff, 156 La. 132, 100 So. 247; Lear et al. v. Great National Development Company, Inc., 215 La. 749, 41 So.2d 668.

The defendant cannot be forced to accept property that is suggestive of litigation. Lear v. Great National Development Company, Inc., supra, Johnson v. Johnson, 213 La. 1092, 36 So.2d 396; Schaub v. O’Quin, 214 La. 424, 38 So.2d 63 and the cases therein cited.

The case relied on by the plaintiff, Westerfield v. Cohen, 130 La. 533, 58 So. 175 is not applicable because the prior owner was known and named in that suit.

In view of the fact that we cannot determine from the record, as made up, whether or not the city has a good title to the property, the case should be remanded in order that the parties may have an opportunity to offer additional evidence in this case.

For the reasons assigned, the judgment of the lower court is reversed and set aside. The case is remanded to the lower court in order that the parties may offer additional evidence consistent with the views herein contained. All costs to await the final determination of the cause.


text:
    TOUSSAINT v. AMERICAN MUT. LIABILITY INS. CO.
    No. 3243.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.

      Rene H. Himel, Franklin, for appellant.
    Bauer & Bauer, Franklin, for appellee.
   ELLIS, Judge.

Plaintiff is seeking to recover compensation for total, permanent disability from the insurer of his employer as the result of an alleged accident.

Counsel for plaintiff admitted in the District Court and the District Court so held, and he has again admitted before this Court that on the merits he had no case, but, by oral motion in the district court prior to trial, asked for judgment on the face of the pleadings because of alleged admissions made in defendant’s answer to plaintiffs petition.

The district court denied the motion for judgment on the face of the pleadings and, after trial, rendered judgment in favor of the defendants and against the plaintiff rejecting the latter’s demand at his cost.

The plaintiff has appealed from this judgment and complains only of the denial of his motion for judgment on the face of the pleadings and it is, therefore, necessary that the material allegations of plaintiff’s petition be quoted.

. The plaintiff alleged that he was employed by the Sterling Sugars, Inc., on its plantation, and on the 24th day of December, 1948 he suffered an accidental injury when he was bitten near the' wrist by one of the mules of his employer which resulted in the amputation of his right arm just above the elbow. In Article 6 of plaintiff’s petition he alleged: “On the said 24th day of December, A.D. 1948, petitioner was employed by Sterling Sugars, Inc., as a manual field laborer, and petitioner was engaged in the discharge of his work for Sterling Sugars, Inc., as a manual laborer when he was bitten by said mule, as aforesaid.”

In Article 8 the plaintiff alleged: “At the time of his injury petitioner was earning $23.40 per week and is entitled to recover for total permanent disability 65% of said amount, or the sum of $15.21 per week for 400' weeks, or a 'total sum of $6,084.00”.

To plaintiff’s petition the defendant answered and admitted the' employment and the accident and injury as the result of the mule bite but in answer to Article 6 set forth the following: “For answer to Article 6 of plaintiff’s petition, defendant admits that petitioner' was employed as a manual field laborer by Sterling Sugars, Inc., on December 24, 1948, but specifically denies that' petitioner mas engaged in the discharge of- his duties with Sterling Sugars, . Inc., when the alleged accident occurred, and defendant specifically denies that the accident arose out of and in the course of the employment óf said petitioner.” (Emphasis added)

In' answer to Article 8 the defendant Set forth: “Defendant admits the allegations of fact contained in Article 8 of plaintiff’s petition.”

The plaintiff pitches its entire case upon Article 8 of its petition above quoted and the, answer thereto by the defendant wherein it admitted “the allegations of fact contained in Article 8” and, at the same time, admitted in the District Court and the facts show it to be true and the District Court correctly held, and admitted in this Court the special defenses set forth by the defendant that the plaintiff was not engaged in the discharge of his duties when the alleged accident occurred, and that the accident did not arise out of and in the course of the employment of the plaintiff.

There is some question raised as to whether it was necessary for the defendant to move by rule for a judgment on the pleadings, but it is not necessarj to decide this question as the only facts alleged in Article 8 of the plaintiff’s petition are that at the time of plaintiff’s injury he was earning $23.40 per week, and the remainder of the allegation is a conclusion of law or of the pleader. It is not necessary that a conclusion of the pleadings or of law be denied or admitted. Central Savings Bank & Trust Co. v. Succession of Brandon, La.App., 167 So. 515; Iglesias v. Campbell, La.App., 175 So. 145; Wessell Plumbing Co. v. Norton, 3 La.App. 680; Succession of McLain, 141 La. 376, 75 So. 85; Chachere v. Moses, George & Sons, La.App., 165 So. 522; Allen v. Yantis, La.App., 190 So. 236; 49 Corpus Juris, page 278.

Furthermore, we must take the entire pleadings, and we see that the defendant specifically, in Article 6 of its answer to Article 6 of plaintiffs petition, denied that the plaintiff was engaged in the discharge of his duties when, the accident occurred and denied that the accident arose out of and in the course of the employment of the petitioner, which is a denial in no uncertain terms that the plaintiff “is entitled to recover for total permanent disability 65% of said amount or the sum of $15.21 for 400 weeks or a total sum of $6084.00.”

The expression found in the case of Moch v. Shreveport Rys. Co., La.App., 41 So.2d 741, 744, viz: “It. appears to us that the amount of recovery (in our case compensation at the rate of $15.21 per week for a period, of not exceeding 400 weeks) has been agreed upon and fixed by the parties, subject, of course, only to the proper establishment of liability of the défendant”, is applicable to the case at bar. All the allegations of facts well pleaded in both the petition and the answer must be taken as proven.

The allegations of fact contained in defendant's answer are not in any way inconsistent with an admission, even if defendant’s answer be so considered, of the amount to be recovered in the event of liability. Taking these allegations of fact to be true or proven as required by the Pleading and Practice Act, Act No. 157 of 1912, as amended, then there is no liability on behalf of defendant.

The motion for judgment on the face of the pleadings was properly denied by the learned judge of the District Court, and on the merits, aside from the admission of counsel for plaintiff that his demands were correctly denied, the evidence shows that the judgment of the District Court to the effect that: “It is clear that the plaintiff was not engaged in hazardous employment at the time of his injury, nor was such injury received in the course of his employment,” is eminently correct and is, therefore, affirmed.