author: MOISE, Justice. McCALEB, Justice LE BLANC, Justice HAWTHORNE, Justice

text:
    217 La. 189
    WEST et ux. v. MONROE BAKERY, Inc., et al.
    No. 39316.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.

      Thompson, Thompson & Sparks, Monroe, for applicants.
    Theus, Grisham, Davis & Leigh, Monroe, for respondent.
   MOISE, Justice.

We granted writs from a judgment of a divided Court of Appeal, Second Circuit, where an insurance company has been made by an act of the Legislature an obligor in solido to a third person who has been injured through the negligence of the insurance company’s assured. The district court rendered judgment in solido against the Monroe Bakery Company, Inc., and the General Casualty Company of America for the sum of $5,000.00, with interest from judicial demand. The assured bakery company acquiesced in the allegation of negligence on which judgment was founded by not taking an appeal.

An analysis of our jurisprudence considered by the Appellate Court in reaching its conclusion discloses that with two exceptions Act 55 of 1930 has been treated consistently as conferring siibstantive rights on third parties to contracts of public liability insurance, which become vest-^ ed at the moment of the accident in which’ they are injured, subject only to such defenses as the tort-feasor himself may legally interpose. The facts in each case may be different, but save for Howard v. Rowan, La.App., 154 So. 382, and State Farm Mutual Automobile Insurance Company v. Grimmer, D.C., 47 F.Supp. 458, the result has been the same — the upholding of the statutorily granted right against the insurer regardless of a stipulation to the contrary between the insurer and the insured in the policy contract and regardless of dilatory conduct on the insured’s part in giving notice.

Bougon v. Volunteers of America, La.App.1934, 151 So. 797, involved an action brought against the employer of the tort-feasor and its liability insurance carrier. The insurance policy which had been issued contained a clause forbidding any action against the carrier by anyone until “ ‘the amount of loss shall have been fixed either by a final judgment against the assured by the court of last resort, after trial of the issue, or by agreement between the parties with the written consent of the company.’” 151 So. 797, at page 800.

The insurer contended that the direct right of action given to a third person under Act 55 of 1930 was limited to those cases in which the policy did not prohibit such actions. In rejecting this defense, the Court said, 151 So. at page 802:

“Considering both acts together, the act of 1918 and the act of 1930, it seems to us too plain for argument that it represents a determination upon the part of the Legislature to extend the rights of an injured party as against the insurer. In the beginning, an action could only be maintained in the event of the insolvency of the insured. Later this right of action was facilitated by a definition of insolvency and a conditional right of action conferred unrelated to the insolvency of the insured and capable of being exercised initially as against the insurer alone, or in conjunction with the insured as a solidary obligation.

******

“Much has been said during the oral argument of this case concerning the hardship to the insurer which the interpretation of the statute we have adopted would involve. If there be any injustice to the insurer as a result of this statute, the obvious relief is through legislative action. * * *

While delayed notice was not the special issue presented in the Bougon case, the general issue was identical with the one in this case — whether the right of action conferred on an injured third person by Act 55 of 1930 vests immediately or whether it is contingent on and subordinate to any stipulation between the insurer and the insured, contained in the policy contract. As a matter of fact, the policy clause upon which the insurer in the Bougon case attempted to rely is practically verbatim with the clause contained in the General Casualty Company contract entitled “5. Action Against Company”, above quoted.

In Duncan v. Pedare, La.App.1935, 161 So. 221, suit was brought against an automobile owner and his insurer by a third person invitee, who had been injured when the automobile (then being operated by another invitee) struck a deep rut. The insurer first received formal notice of the accident 8 months and 7 days after its occurrence; and it claimed that delay in giving notice released it from liability, there having been a policy stipulation which provided : — ■“ ‘Immediate written notice of any accident with the fullest information obtainable at the time must be forwarded to the home office of the company or its authorized representative. If a claim is made on account of such accident the assured shall give like notice thereof, and if suit is brought to enforce such a claim the assured shall immediately forward to the company every summons or other process as soon as same shall be served on him.’ ” Quoted in 161 So. 221, 227.

The Court refused to permit the insurer to avail itself of that defense, saying:— “ * * * the act (Act 55 of 1930) * * * does not impose on the injured party the duty to give the statutory notice of the accident which causes him injury. This duty under the policy and the statute which recognizes the policy contract is imposed on the assured only.” 161 So. 221, at page 228.

On rehearing of that case, Duncan v. Pedarre, La.App.1935, 164 So. 498, the Court of Appeal for the First Circuit reversed itself as to its prior finding of negligence on the part of the operator, and having found there was none, it naturally rejected the suit as to both defendants. It did say, what was obiter to the decision, that the owner’s failure to notify the insurer released the latter from liability under the policy: The dissenting opinion adhered to the initial decision, and we quote therefrom a comment on the purpose of Act 55 of 1930 which summarizes the trend toward a liberal interpretation of remedial legislation, 164 So. 498, 501, 502:—

“The question in this case which was argued and considered at more length was as to the sufficiency of the notice given the defendant insurance company. The facts as to that are that Pedarre, the insured, gave the company notice as soon as a demand was made on him. I adhere to what we said in our first decision that this was a reasonable notice under the circumstances of the case. * * *

“I also believe the doctrine of Edwards v. Fidelity & Casualty Co., 11 La.App. 176, 123 So. 162, decided by the Court of Appeal for the Parish of Orleans, is sound. In that case, unlike the present, without any reason to justify such action, the assured did not notify his insurer until some eleven months after the accident. The Court of Appeal for the Parish of Orleans held that the immediate notice clause did not apply to the injured person who has a direct cause of action under Act No. 253 of 1918, § 1, now amended by Act No. 55 of 1930, § 2. The court said that clause in the policy applies only to cases where the insured has paid a damage claim and seeks to be reimbursed by his insurer, where the insured has failed to give reasonable notice. It is true that the Court of Appeal for North Louisiana has held differently in the case of Howard v. Rowan et al., [La.App.], 154 So. 382; but as we said in our first opinion, the doctrine of the Edwards case seems more reasonable, for if the injured person is cut off by failure of the insured to give a notice, or to give a reasonable notice, then the independent action which exists in favor of the injured person under Act No. 55 of 1930 would be wholly dependent on the will of another. The law does not require the registration of public liability policies and there’s no way for the injured person to know if there is a policy, or where there is one, the name of the company, and nature of the policy. It would seem unreasonable to interpret Act No. 55 of 1930 to mean that the injured person has an independent, direct action against the insurance company, but that this action can be defeated by the failure of an immediate notice by the insured, where the injured person has no way whatever to see that such notice is given; and particularly where the policy provides only for the giving of notice by the insured, not by the injured party. Such is apparently not the intention of the lawmakers.”

We now come to the case of Edwards v. Fidelity & Casualty Co., 11 La.App. 176, 123 So. 162. There the injured third party secured a judgment against the tort-feasor and, the execution thereon having been returned “nulla bona”, brought suit directly against the insurer of the tort-feasor, under Act 253 of 1918 (which was amended and re-enacted by Act 55 of 1930, a year after the Edwards decision.) One of the defenses urged by the insurer was a delay of 11 months in receiving notice of the accident. The policy also contained a provision that the assured “ ‘agreed and bound himself to give immediate written notice of any accident which might occur within the terms and conditions of said policy, at the same time giving to respondent the “fullest information obtainable at the time” of all the details and circumstances of the accident.’ ” Quoted in 11 La.App. 176, 177; 123 So. 162, 163.

It further provided, 11 La.App. 177, 123 So. 162: — “ ‘The company shall not be liable to pay any loss nor shall any action be brought against the company to recover under this policy until a final judgment shall have been recovered against the assured in a suit covered hereby. If an execution on a judgment recovered in a suit against the assured covered by this policy is returned unsatisfied, the judgment creditor shall have a right of action to recover the amount of such judgment against the company to the same extent that the assured would have had to recover against the company had the assured paid the said judgment; but in no event shall the company’s liability exceed the limits expressed in this policy. * * * ’ ”

As to the contention that the injured party had lost his right as a result of the assured’s neglect to comply with one of the covenants entered into with his insurer, viz., “immediate written notice”, the Court said 11 La.App. 177, 123 So. 163 ff.:—

“If the failure of Monahan to give the insurer notice of the accident operates to deprive plaintiff of such rights, as, under the statute and under the policy, he would otherwise have had, then the right, which the statute creates and which the policy recognizes, is of doubtful value because the existence of that right in one person depends upon the actions of another. (Italics mine.)

“It . is quite evident that, except in very rare, cases, the party injured by the negligence of another has no knowledge as to whether or not that other is insured, and if he has ordinarily no knowledge as to whether there is any insurance at all, then, clearly, he has no knowledge as to who the insurer may be if there is one. It is therefore not within his power to give the notice required by the policy, and, if notice is essential to his recovery, his right must, as we have stated, depend upon the other party. We do not think that such was the intention of the legislators.

“It is quite true that Monahan’s failure to give notice to his insurer would have prevented his recovery from the insurer, had he himself paid the judgment * * * but that is because Monahan had so contracted. As between parties to a contract, the contract itself is the law óf the case. Here, however, the law of the case is not found solely within the four corners of the policy of insurance, but is contained primarily in the statute to which we have referred.

“We think that it was the purpose of the statute to create, immedately upon the happening of the accident, a cause of action in the injured party against the insurer, if any, of the party at fault. Of course, the right to present and enforce this cause of action is conditioned upon the obtaining of a judgment against the party at fault and upon unsuccessful efforts to collect that judgment, but these are conditions with which it is within the power of the injured party to comply. If he cannot comply with them he has only himself to blame.

“But, argues defendant, the statute itself provides that such action as the injured party may maintain shall be ‘within the terms and limits of the policy,’ and since the policy requires notice, and since no notice was given in this case, this action is not brought within the terms and limits of the policy. We think that the word's ‘terms and limits of the policy’ zvere not intended to inchide the requirement of notice, hut referred only to the amount which might he recovered and to those other warranties and conditions with which it was within the power of plaintiff to comply. As was said in Rokes v. Amazon Insurance Co., 51 Md. 512, 34 Am.Rep. 323: (Italics mine.)

“ ‘In regard to the clause in the policy that provides “no waiver or modification of any of the terms or conditions of this policy shall be made in any event,” it is sufficient to say that it refers to those conditions and provisions of the policy, which enter into and form a part of the contract of insurance, and are essential to make it a binding contract between the parties, and which are properly designated conditions; — and that it has no reference to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing proofs of loss.’ (Italics by the Court.)

“We are told that it works a hardship on the insurer to be called on to defend an action of this kind, as he has had no prior knowledge of the accident and is not in a position to make a defense As to the hardship and disadvantage under which the insurer labors, and the difficulty under which the injured party finds himself we think that the ends of justice require that the benefit of the doubt should be given to the injured party, who is in no way at fault, and whose loss was. caused entirely by some one else, as against the insurer who has entered into the contract with full knowledge of the statute and for a monetary consideration.” (Italics mine.)

A year after the Edwards decision, Section 1 of Act 253 of 1918 was amended by Act 55 of 1930, Section 2, Dart’s Louisiana General Statutes, Section 4248, to broaden the scope of relief accorded injured third persons in several respects:

(1) It provided that “any judgment which may be rendered against the assured, for which the insurer is liable, which shall have become executory, shall be deemed prima facie evidence of the insolvency of the assured”; this provision was a Legislative solution to the second problem which had been presented in the Edwards case — that the insolvency or bankruptcy of the assured had not been judicially recognized — and incorporated into the earlier statute the Appellate Court’s ruling on that particular point, 11 La.App. 176, 179, 123 So. 162, 164: — “Defendant argues that the conditions, insolvency or bankruptcy and an unsatisfied judgment, are both prerequisites, and that the insolvency or bankruptcy, although it may in fact exist, is not sufficient until there is a judicial recognition thereof. If this were the intention of the policy, and if such were permissible under the statute, the injured party, failing in his attempt to execute his judgment, would find himself under the necessity of instituting an'action of involuntary bankruptcy or being able to prove the insolvency of the assured, and, as a practical proposition, there would be little possibility of his doing either. It is our opinion that the conditions to which we have referred were not intended to be cumulative, but that the second, an unsatisfied execution, was intended to be, for the purpose of the policy, proof of the first, insolvency or bankruptcy. Any other interpretation would, we believe, be unreasonable.”

Once the judgment had become executory and the insurer liable therefor, the action could be brought against the insurer “within the terms and limits of the policy.” This provision had existed in Act 253 of 1918 and was carried over into Act 55 of 1930, the latter permitting a presumption of insolvency in certain instances without the necessity of more formal proof.

(2) In addition to the rights conferred by the earlier Act, Act 55 of 1930 granted an optional right to injured third persons, or their heirs, to proceed directly against the liability insurer “within the terms and limits of the policy”, either alone, or jointly with the insured.

(3) It gave the insurer the right to urge all defenses which the insured himself might interpose in an action ' against him. There is no right given the assured to urge the defense against the injured third person, of the breaching of the contract by the assured by not giving the insurer a timely notice. It would seem that the rule of common sense is.that this is a matter entirely between the assured and its insurer, and that the insurer has a cause of action for the contract breaching against the assured.

It is illogical to construe “terms and limits of the policy” to mean one thing in one section of Act 55 of 1930 (the same section that existed in Act 253 of 1918) and another entirely different thing in a later section, when all the sections relate to the same subject — the responsibility of a liability insurer to those who sustain injury for which the assured shall be found liable. Hence, what was said in the Edwards case as to the effect of “terms and limits of the policy” is equally applicable to the present set of circumstances.

The policy involved carried the following provisions:—

“1. Notice of Accident, Claim or Suit. Coverages A, B and C. When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.

“5. Action Against Company. Coverages A and B. No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

The most recent expression of this Court on the subject of the effect of delayed notice to the insurer on the rights of injured third parties in tort actions is the case of Jackson et ux. v. State Farm Mut. Automobile Ins. Co., 1946, 211 La. 19, 29 So.2d 177. There we said, 211 La. at page 24, 29 So.2d at page 179: — “Each case involving delayed notices must stand upon its own facts and circumstances. The Court may consider in balancing the equities, not only the time intervening between the accident and the date of notice to the insured, and whether or not the claim is a direct one by the injured persons, under Act 55 of 1930, but also when the parties first discovered that substantial injury had been done or that a claim would be made; the time when the injured 'party discovered that insurance existed and knew the identity of the insurer; what prejudice to the insurance company’s defense has been caused by the delay; the good faith of the insured and injured party; and the existence of any special circumstances, especially those indicating fraud or collusion.”

In that case there had been a lapse of eighty-two days between the date of the accident and receipt of notice by the insurer; but the parents of the deceased child had informed the insured at the time of the accident that they would not prosecute a claim, and as soon as they informed him of their change of intention, he gave notice to the insurer.

The reading of the record shows that the district judge based his decision on the Jackson case, saying:—

“The facts here are quite similar to those in the case of Jackson v. [State Farm Mut. Automobile] Ins. Co., [211 La. 19], 29 So.2d 177, decided by the Supreme Court in Dec. 1946. It is true that in the Jackson case both parents of the dead child informed insured that no claim would be made, while here it was only the parent who was present in this state that made such statement. In the Jackson case the insured only had his own private car covered, while here the Bakery Co. operated quite a number of vehicles, and had many accidents to report. Yet its president testifies that he had settled other claims where there appeared to be no liability, and did not report them to the insurer.

“It is clear that in the Jackson case the decision would have been the same had the plaintiffs waited a year to make their claim, so that the difference in time is not material. It is true that a better investigation may be made immediately after an accident, yet in this case there is no proof that the Ins. Co. was actually prejudiced because of the delay in receiving notice. No element of fraud, collusion or bad faith had been shown. There is no proof that the Bakery Co.’s action was deliberate in the sense that it intended to prejudice the rights of the insurer. Therefore if we apply to this case the reasonings of the Jackson case, there must be judgment against the Ins. Co.”

The dissenting opinion of Judge Ken-non on the appeal of this matter to the Court of Appeal, Second Circuit, quotes from Edwards case, supra, as follows, 39 So.2d 620, at page 626: “ ‘But, argues defendant, the statute itself provides that such action as the injured party may maintain shall be “within the terms and limits of the policy,” and since the policy requires notice, and since no notice was given in this case, this action is not brought within the terms and limits of the policy. We think that the words “terms and limits of the policy” were not intended to include the requirement of notice, but referred only to the amount which might be recovered and to those other warranties and conditions with, which it was within the power of plaintiff to comply.’ ” (Italics mine.)

(Continuing from Judge Kennon’s opinion) :

“The Court in that opinion further noted that; except in rare cases, the party injured by the negligence of another has no knowledge as to whether or not the other is insured and having no knowledge as to whether there is any insurance at all, he certainly has no knowledge as to who the insurer may be, if there is one. In answer to the contention made by the attorneys for the casualty company in the Edwards case that it works a hardship upon the insurer to defend a case about which it knew nothing for a long time after the occurrence of the accident the Court said:

“ ‘ * * * we think that the ends of justice require that the benefit of the doubt should be given to the injured party, who is in no way at fault, and whose loss was caused entirely by some one else, as against the insurer who has entered into the contract with full knowledge of the statute and for a monetary consideration.’ ******

“In the case of Jackson et ux. v. State Farm Mutual Automobile Insurance Co., 211 La. 19, 29 So.2d 177, our Supreme Court held that — under the facts and circumstances of that case — the eighty-two day delay of the insured in giving notice did not cut off the right of the injured party to recover against the insurer. The insured was not made a party defendant and the opinion of the Supreme Court in that case did not hold directly that the injured party may retain a cause of action against the insurer even though the insured — by his negligence in reporting the accident, etc., — may have lost the protection granted him under the policy. However, the Court did say — after holding in effect that the insured was justified in delaying giving notice to the company (after being assured by the parents of the young child that no claim would he made) - — that plaintiffs’ case was strengthened by the fact that the action was one brought directly by the injured party against the insurer under Act SS of 1930.

“Counsel for the casualty company has urged here the same point made in the dissenting opinion in the Jackson case, namely, that the direct right of action given the injured party by Act No. SS of 1930 is subject to the provision of the statute which provides that the action in favor of the injured party shall be ‘within the terms, and limits of the policy,’ and it seems difficult to reconcile the reasoning of the Court in the Edwards case, supra, and the necessity of enforcing the statutory requirement that the suit by the injured party must be within the terms and limits of the policy. However, the Supreme Court did not grant a writ in the Edwards case, in which the Court held that the legislative intent was that the original liability of the insurance carrier to the injured party is to be determined ‘within the terms, and limits of the policy,’ and that the requirement of notice was not included in the quoted clause. Thus, if the offending car, though insured, was driven by a person unauthorized to drive under the terms and limits of the policy, the injured party would have no right against the insurance carrier. However, if at the time of injury, the circumstances are such that, under the terms and limits of the policy, the insurance carrier is liable, the rights of the injured party against the insurer under Act No. 55 of 1930 become fixed as of the moment of injury. This personal, statute-given right of the injured party against the insurance carrier is one which he can only lose, as indicated in the Edwards case, by his own acts, or by his own failure to act. The rights under the policy, as between the policyholder and his insurer are, after the accident, still subject to the further provisions of the policy relative to notice and other action which the policy may require of the insured, who of course, has a copy of the contract of insurance and who 'has, at least by implication consented to all its terms and conditions. Such a line of reasoning would recognize that &■ 'different situation exists as between the insurer and the injured party, between whom there is no contractual relationship.

“As indicated in the reasoning of the Edwards case, the injured party might be deprived entirely of the benefits 'granted him by Act No. 55 of 1930 were the Courts to hold that any and every failure of the insured, after the accident, to comply with every exacting requirement of the policy would defeat recovery by the injured party. For instance, the insurance company might put a condition in the policy that telegraphic notice of an accident must be given to its home office within twenty-four hours of its occurrence and in the event of failure to' give such notice, the policy protection would not cover the accident. The policyholder, being in possession of the policy, would at least have the opportunity of finding out that such a telegram was necessary and protect his rights, but the injured party, after the accident, is often in the hopsital, or if less fortunate, he may have lost his life, and he or his heirs may be some days or weeks becoming familiar with the full facts surrounding his injury. The injured party or his heirs have no copy of the contract of insurance and may not even know for many weeks that such a policy was in existence, much less what its [its] terms and conditions require.”

If there should be any doubt as to the effect of Act 55 of 1930, it should for all times be put at rest by the opinion written by Mr. Justice Rogers in the case of Davies v. Consolidated Underwriters, 1942, 199 La. 459, 6 So.2d 351, which was not concerned with delayed notice of an accidental occurrence, but where the Court set out the general objects, purposes and effect of Act 55 of 1930 as to third persons, not parties to the policy contract, 199 La. 459, 476, 6 So.2d 351, 357:—“That statute (Act No. 55 of 1930) gives the injured party an immediate right of direct action against the insurer of the party responsible for the injuries. Tke statute expresses the public policy of this State that an insurance policy against liability is not issued primarily for the protection of the insured but for the protection of the public. Frequently the insured is financially irresponsible and the only recourse of a person injured by the negligence of the insured is against his insurance carrier. But rarely has the injured party knowledge as to who may be the insurer of the party responsible for his injuries. It is therefore not within his power to give a notice as required by the policy and the enforcement of a policy provision requiring notice to be given by the insured automatically and without any action on his part deprives him of the right of action granted by law. It is not desirable that he should be divested of such action, and-that result should not obtain except in a very clear case. This is not such a case. By maintaining plaintiffs’ action, the defendant company is not deprived of any substantial right. Its liability remains contingent and is dependent upon proof of the negligence of Stahl, the driver of tke automobile.” (Italics mine.)

The proof of negligence on the part of the assured has been acquiesced in by the assured, because it has taken no appeal from the judgment which holds it negligent. It was acquiesced in by the insurance company, because there is no such issue now before the court as the negligence of the assured. In the exercise of our supervisory jurisdiction, we must look to our own decisions to reconcile and to iron out the theoretical standards of liability set by the respective courts of appeal. We are duty bound to make those theories conform to the law. The weight of the jurisprudence of the Courts of Appeal and our own is that under a case so circumstanced as this, and where the third person is not at fault that he cannot be made liable for the breaching of an agreement by the insured with his insurer, The logical analysis of our own Mr. Justice, Rogers of this law lives after him.

For the reasons assigned, the -judgment of the Court of Appeal for the Second Circuit is reversed, annulled and set aside, and it is ordered, adjudged and decreed that the judgment of the district court against General Casualty Company of America in solido be reinstated, affirmed and made the judgment of this • Court, in the amount therein set forth. Defendant-appellee to pay all costs of court.

HAMITER, J., concurs in the decree.

HAWTHORNE, J., dissents and assigns written reasons.

McCALEB and LE BLANC, JJ., dissent with written reasons.

McCALEB, Justice

(dissenting).

According to the facts-, as found by the Court of Appeal, plaintiffs are suing Monroe Bakery, Inc. and its public liability insurance carrier for damages for the death of their minor daughter, who was killed by' a truck of the bakery company. The accident occurred on January 8, 1945 and suit was filed against the bakery company nearly one year later, on January 7, 1946. On May 2, 1946, the insurer of the bakery was joined as a defendant to the suit by a supplemental petition. See 39 So.2d 620.

The defense of the insurer, which was sustained by the Court of Appeal, is that it had no notice of the accident until over a year thereafter, to wit — January 14, 1946, when its agent received a letter from the assured in which was enclosed the citation and a copy of the petition in the instant suit, despite the fact that its liability under the policy issued to the bakery is conditioned upon written notice being given “by and on behalf of the insured to the company or any of its authorized agents as soon as practicable.”

No one could contend, with any plausibility, that there was a just cause or excuse for the assured’s failure to comply with the policy contract until over a year after the occurrence of the accident or that the unreasonable delay did not constitute a violation by the assured of the condition of the policy that notice of the accident would be required as soon as practicable. Therefore, the decisions of this court in Jones v. She-hee-Ford Wagon & Harness Co., 183 La. 293, 163 So. 129 and Jackson v. State Farm Mut. Automobile Ins. Co., 211 La. 19, 29 So.2d 177 are not applicable. Indeed, the majority view is'pitched entirely, as I understand it, upon the resolution that Act 55 of 1930 is authority for a recovery by plaintiffs against the insurance company and that the 'latter is without right to defend on the ground that its assured has breached the condition of the -policy requiring notice as soon as practicable.

It is my belief that this conclusion, far from being sustained by the provisions of Act 55 of 1930, is in direct contravention of them. Act 55 of 1930 amends Act 253 of 1918, which was an act providing that no policy of insurance should be issued without containing a proviso that the insolvency or bankruptcy of the assured shall not release the insurer from liability for injury sustained or loss occasioned during the life of the policy and further declaring that, in case of such insolvency or bankruptcy, an action may be maintained by the injured person against the insurer “within the terms and limits of the policy”. The 1930 amendment repeated these provisions of the 1918 act and further granted to the injured person a right of direct action against the insurer company within the terms and limits of the policy of liability insurance. However, the statute contains this important proviso: “It being the intent of this act that any action brought hereunder shall be subject to all of the lawful conditions of the policy contract and the defenses which could be urged by the insurer to a direct action brought by the insured; provided the term and conditions of such policy contract are not in violation of the laws of this State.” (Emphasis mine.)

I daresay that no one would seriously maintain that the provision of the policy that the insured shall furnish notice to the insurer as soon as practicable is not a perfectly lawful condition or that, in an action between the insured and the insurer, the latter would not be permitted to .urge, as a valid defense, that the insured violated the policy by . failure to give notice until over one 'year after the accident occurred.

If this be true, then I cannot perceive why the insurer is to be deprived.of this defense in an action brought by the injured person since the very statute, which granted plaintiffs the direct action, .declares in unequivocal language that “any action brought hereunder shall be subject to all of the lawful conditions of the policy contract and the defenses which could be urged by the insurer to a direct action brought by the insured * * *

The majority opinion seems to derive comfort from the decision in 1929 of the Court of Appeal for the Parish of Orleans in Edwards v. Fidelity & Casualty Co. of New York, 11 La.App. 176, 123 So. 162, where, in -construing the clause “within the terms and limits of. the policy” as used in Act 253 of 1918, it was held that the failure of the assured to notify the insurer of the accident, as required by • the policy, did not deprive the injured person filing suit thereon of his right of action as those words were not intended to include the requirement of notice but referred only to the amount which might be recovered and to other warranties and conditions with which the injured person could comply. But the majority fail to take in account that, while the 1930 amendment granted greater rights to the injured person by according a right of direct action against the insurer, it specifically restricted that right and made it subject to all lawful conditions of the policy contract and to the defenses which could be urged by the insurer in a direct action brought by the insured. Manifestly, by the latter provision, the Legislature placed its stamp of disapproval on the decision of the Court of Appeal in Edwards v. Fidelity & Casualty Company, supra, as was recognized by a majority of the members of the same court (including the author of the Edwards decision) in a later case. See Jones v. American Mut. Liability Ins. Co., La.App., 185 So. 509-517.

Much reliance is placed by the majority upon certain language used by this court in Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351. But, admittedly, that case did not involve the enforceability of a condition in the policy requiring the giving of notice to the insurer; the provision of the policy there depended upon was found to be ambiguous and, hence, not available to the insurer as a defense. The expressions of the court regarding the purpose of Act 55 of 1930 are sound but I cannot discern that they control or in anywise fortify the conclusion reached in the case at bar.

I think the judgment of the Court of Appeal should be affirmed.

LE BLANC, Justice

(dissenting).

To fortify its position and to support its ruling the majority opinion relies, among others, on a dissenting opinion on the rehearing in the case of Duncan v. Pedare, 164 So. 498, decided by the Court of Appeal for the First Circuit in 1935, and quotes at length from it. It is rather significant that the author of that dissenting opinion was the author of the majority opinion for that same Court in the case of Jackson v. State Farm Mutual Automobile Insurance Company, La.App., 23 So.2d 765, in which he commented on his dissenting opinion in the Duncan v. Pedare case, making it evident that his dissent was based on the evidence that the assured in that case was not fully informed of the fact that the accident had caused the loss covered by the pqlicy and what was the extent of the injury that had been sustained; but as soon as he was so informed and a claim for damages had been made on him, he had given notice to the insurer. The opinion prepared by him in Jackson v. State Farm Mutual Automobile Insurance Company leaves but little doubt that he considered the giving of notice as required under the policy as a condition precedent to recover, even though in that case the suit had been brought by someone other than the assured. It is true that the case of Jackson v. State Farm Mutual Automobile Insurance Company was reversed on review by this Court but I deem it necessary to make these comments in order to substantiate my position as one of the concurring judges in the opinion rendered by the Court of Appeal.

I have not deviated from that position and find no reason to do so at this time in the case under consideration for T fully concur in the reasons assigned by Justice McCaleb in his dissenting opinion that when Act 55 of 1930 by its own terms expressed its intent as being “that any action brought” under its provisions “shall be subject to all of the lawful conditions of the policy contract and the defenses which could be urged by the insurer to a direct action brought by the insured; * * * ” that that language meant exactly what it .said; that any action meant any form of action that may be brought under the terms of the Act by anyone having a right or cause of action and that to such action the insurer could urge any and all defenses arising under the conditions of the policy the same as they could be urged by it in an action brought by the insured. For these reasons I respectfully dissent.

HAWTHORNE, Justice

(dissenting).

I am in full accord with the decision of the Court of Appeal, Second Circuit, reported 39 So.2d 620, and the well written reasons therefor, and am therefore of the opinion that this judgment should be affirmed. See my dissenting opinion in Jackson et ux. v. State Farm Mut. Automobile Ins. Co., 211 La. 19, 25, 29 So.2d 177.

      . See also Tulane Law Review, Vol. X, page 69 and Vol. XI, page 443. In the latter Article is found the following comment: “The 1930 Act, which contains an express clause designed to overrule the Edwards decision, requires compliance with policy terms that do not deprive the third party of his right of direct action against the insurer.”


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    COBB v. DAVIDSON.
    No. 7506.
    Court of Appeal of Louisiana. Second Circuit.
    April 28, 1950.
    Rehearing Denied May 31, 1950.
    Joseph S. Guerriero, Monroe, for appellant.
    Redmond & Harkey, Monroe, for appel-lee.
   KENNON, Judge.

By bill of sale dated February 22, 1949, the defendant, E. J. Davidson, sold to plaintiff, R. R. Cobb, a 1939 Ford Coupe, warranting same to be free from any lien or encumbrance. Shortly thereafter Cobb sold the same automobile to Elmer L. Garrett, a resident of Morehouse Parish, Louisiana. On June 7, 1949, the General Motors Acceptance Corporation filed suit against Elmer L. Garnett seeking to have the automobile which Garrett had purchased from Cobb delivered to GMAC as owner under a conditional sales contract executed in the State of Texas in favor of the GMAC’s assignor by one Owen Atkin.

After a writ of sequestration was issued and the car taken from the possession of Elmer L. Garrett, this individual called upon R. R. 'Cobb to make good on his warranty of title. Whereupon, Cobb issued his check to the Sheriff of Morehouse Parish, taking a receipt in the following form:

“Robert E. Harp
“Sheriff and Tax Collector
“Parish of Morehouse
“Bastrop, La.
“6/9/49
“Received of R. R. Cobb check in amt of $432.24 Four Hundred Thirty-Two & 24/100 Dollars — for amt due GMAC on Elmer L. Garrett.
“Robert E. Harp Sheriff “By J. B. Spier, Dy.”

In the present suit R. R. Cobb seeks to recover the above amount of $432.24 from E. J. Davidson by virtue of the warranty contained in the February 22, 1949 sale by Davidson to plaintiff Cobb.

Defendant in answer admitted that he had sold the car to Cobb as alleged, but alleged that the Texas conditional sale, upon which the suit by GMAC against Garrett was based, was null and void. The answer further set forth that the plaintiff, by paying the amount of the GMAC claim to the Sheriff, had violated an agreement ¡made with defendant that defendant would be given the opportunity of defending the lawsuit.

The District Court found that the sale by The Whitten Chevrolet Company to Owen Atkin had been duly registered in the State of Texas as required by the law of that state, and gave judgment in favor of the plaintiff against his warrantor, fendant appealed. De-

The petition in which the General Motors Acceptance Corporation asserted its ownership of the Ford Coupe, then in the possession of Elmer L. Garrett in Morehouse Parish, Louisiana, recites that the coupe was sold on the 12th day of November, 1948 by the Whitten Chevrolet Company, Bishop, Texas, to one Owen Atkin, then a resident of Texas. This petition further recites that Owen Atkin at the time was working for the Whitten Chevrolet Company, but that “shortly after the purchase of said automobile the said Owen Atkins left the Whitten Chevrolet Company without warning and left the State of Texas and when last heard from he was in the State of North Carolina.” The suit against Elmer L. Garrett containing the above quoted allegation 'was filed by the General Motors Acceptance Corporation on June 7, 1949.

The testimony of Mr. Lloyd M. Monroe, manager of the General Motors Acceptance Corporation of Corpus Christi, Texas, was taken by deposition and is in the record of the present case. He testified that his company purchased the conditional sales contract entered into between the Whitten Chevrolet Company and Owen Atkin at Bishop, Texas, and identified a copy of the sales contract and another document as “a bookkeeping record of the account which originated in the purchase of the conditional sales contract signed by Owen Atkins,” and testified as to the balance due by Owen Atkin at the time Mr. R. R. Cobb, present plaintiff, gave his check to the Sheriff of Morehouse Parish in settlement of the GMAC suit against Garrett. This “bookkeeping record,” marked Plaintiff No. 3, is a printed form used as an office record in conditional sales contracts purchased by the GMAC. The data on the form includes the following:

“Customer Atkins, Owen Burrow
Street Route 1 Box 17, Smackover, Ark.
City State -B4SHQP-, TEXAS
Dealer Whitten Chev. Co. W18. .
City State Bishop, Texas
Year Mod Used 1939
Make Ford
Type St. Coupe
Motor No ■5140765”

The presence of the address, Route 1, Box 17, Smackover, Arkansas, on the bookkeeping record of the GMAC indicates, hut does not establish, that that company had actual knowledge that the purchaser of the Ford Coupe in question had actually moved his residence from the State of Texas. The fact that the purchaser was employed by the Whitten Chevrolet Company at the time the sale was made and shortly there-

after left their employ and left the community, indicates further that the original holder of the original sales contract and likely the purchaser of same, General Motors Acceptance 'Corporation, had knowledge that the car had been removed from the Stafe of Texas.

There is in the record a Louisiana license receipt covering the automobile in question which includes the following data:

“Registration Card
Tag No. 176-426 Motor No. 5140765
Make Ford
Model CPE
Date 1-11 — 49
Parish Union
Name Owen Atkin
Address Rt 1 Box 17 Smackover, Ark.”

The fact that Owen Atkin gave as his address, in adopting for Louisiana license, the identical address shown on the bookkeeping record of the GMAC — owner of the conditional sales contract — is another indication that Owen Atkin at the time was making no concealment of his whereabouts.

A study of the record as a whole leads to no definite conclusion either way on the question of whether the removal of the car from the State of Texas to Smackover, Arkansas, was known by the original seller of the automobile and by the assignee of the conditional sales contract.

The law of Louisiana with reference to the enforcement against bona fide purchasers in this state of conditional sales contracts, lawful where made, is contained in the following quotation from the case of Universal C. I. T. Credit Corporation v. Victor Motor Co., La.App., 33 So.2d 703, 704: “The jurisprudence of this State applicable to conditional sale contracts is now well settled and can be stated thusly: In spite of the fact that conditional sales are invalid when contracted in Louisiana, the Louisiana courts, through comity, have recognized sales executed in other states, even as against a bona fide purchaser or pledgee of the vendee, where the object has been removed to Louisiana without the knowledge or consent of the vendor. * * * Where, however, if the removal to Louisiana is with the knowledge or consent of the vendor (or when the intent of the parties in contracting outside of Louisiana is to circumvent the law of the state), the conditional sale is not recog-nised.” (Italics ours.)

Applying the above quoted law to the facts of the case before us, we find that Owen Atkin did enter into a conditional sales contract at Bishop, Texas, which was a valid and enforceable one under the laws of that state. We further find that the assignee of this conditional sales contract filed a petition in More-house Parish, Louisiana, setting forth the following state' of facts: that the automobile had been removed from the State of Texas without the consent of the vendor and to a destination unknown to the vendor. Under the law above quoted, and under the facts set forth in its petition, the GMAC had a right to the automobile superior to that of Garrett, the Louisiana bona fide purchaser; Garrett in turn, had he called his vendor, R. R. Cobb (present plaintiff), in warranty, would have been entitled to be indemnified under the warranty contained in the sale from Cobb to Garrett. Cobb in turn had the legal right —always assuming the facts alleged in the GMAC petition were true — to be indemnified by E. J. Davidson (present defendant) under the warranty contained in the sale from Davidson to Cobb.

The rule with regard to the legal liability against a warrantor in a separate action in cases where a defendant has not called his warrantor to defend the suit, is stated in Article 388 of the Code of Practice, quoted below: “Separate action against warrantor- — Liability.—The defendant, though he has not called his warrantor to defend the suit, brought against him, does not lose on that account his action in warranty, unless the warrantor prove that he had means for defeating the action which were not used, owing to the defendant having failed to call him in warranty, or having neglected to apprise him of the suit having been brought.’',

. The above article seems to place the burden of proof upon the warrantor to show “that he had means for defeating the action which were not used, * *

In the case before us, under the general rule that a plaintiff must establish his case, R. R. Cobb, in order to recover the money paid to the Sheriff of More-house Parish, was under the burden of establishing that the lien asserted against Garrett by the GMAC was a valid one. It is also true that, had Cobb not paid the amount of the claim to the Sheriff and had he been called in warranty and forced to pay the sum due the GMAC, he would have a valid cause against Davidson, the present defendant, unless Davidson could meet the burden of showing “that he had means for defeating the action” as described in the above quoted Article 388 of the Code of Practice.

In view of this equitable division as to the burden Of proof, and considering the incomplete and inconclusive testimony offered upon the vital question, i. e., whether or not the removal of the automobile by Owen Atkin from the State of Texas to Smackover, Arkansas, was known to the vendor and its assignee, we have concluded that the proper judgment would be one of- nonsuit

For the reasons assigned, the judgment appealed from is reversed and set aside, and judgment is now rendered dismissing plaintiff’s demands as of nonsuit. Costs of court to be borne equally by plaintiff and defendant.


text:
    MUSTIN et al. v. WEST et al.
    No. 7500.
    Court of Appeal of Louisiana. Second Circuit.
    April 28, 1950.
    Rehearing Denied May 31, 1950.

      Dhu & Lea S. Thompson, Monroe, for appellants.
    Theus, Grisham, Davis & Leigh, Monroe, for appellees.
   KENNON, Judge.

This is a suit by Eugene F. Mustin and his wife for damage resulting from a collision between plaintiffs’ car and that of defendant, D. Emmett West, at 7:15 p. m. on May 28, 1949 at the intersection of Bres Avenue and North Seventh Street in the City of Monroe, Louisiana. Plaintiffs alleged that the accident was caused by the negligence of defendant’s minor daughter in driving at fifty miles- an hour, without lights, when the streets were wet, and driving into an intersection at which there were bushes and other obstructions so as to constitute same a blind corner. As an alternate plea, the petition stated that defendant’s daughter had the last clear -chance to avoid the accident. West’s insurer was joined as a party defendant.

The answer admitted that a collision occurred at the place alleged, 'but set forth that same was caused by the negligence of Mrs. Mustin in proceeding into- a right-of-way street without bringing the vehicle to a complete stop and only proceeding when traffic on the -favored street was such that entry thereon could be made in complete safety; in the alternative, in the event the Court should find the operator of the West car to be negligent, that the above action of Mrs. Mustin constituted contributory negligence (for which her husband was also responsible) which barred recovery. . .

The District Court found that there was negligence on the part of both drivers and from the judgment rejecting their demands, plaintiffs have appealed.

Our finding of fact is in agreement with that of the learned trial Judge. Even though the West car was approaching on a right-of-way street, the driver was guilty of negligencé in proceeding in excess of the limit of twenty-three miles per hour set by the Monroe -city ordinance, and in advancing into the intersection at a time when same had been first entered by the Mustin vehicle.

The Mustin car, proceeding, without stopping, into a street designated “Stop” by ■city ordinance, had reached and passed the center of' the intersection when it was struck broadside by the West automobile, which had approached and entered the intersection on the favored street at a speed in excess of the maximum fixed by city ordinance.

Since Mrs. Mustin was approaching a blind corner and a right-oif-way street, it was her duty to proceed slowly and cautiously until her automobile had reached a point where there was no interference with her vision, and then she should have advanced into North Seventh Street only when the maneuver could be accomplished in safety.

It was still light when the accident occurred, and the West car was in pl-ain view of the intersection at the time Mrs. Mustin made the attempt to cross. If she saw the West car approaching, she was negligent in entering the intersection. If she did not observe the approach of the West car, -she was guilty of "negligence in not observing what she could have seen.

Mrs. Mustin’s recovery is barred by her contributory negligence. Her husband was present in the car. He had an equal right to control the car. His wife’s contributory negligence constitutes a bar to his recovery.

Circumstances similar to the case before us were involved in the accident under consideration by the Orleans Court of Appeal in the case of Huerstel et al. v. L. Mangano & Co., et al., 39 So.2d 460, 462. We quote that Court’s conclusion: “ * * * our scrutiny of the record leads to the belief that the accident was caused through the joint negligence of Mrs. Huer-stel, who failed to look and listen, and the driver of the truck, who operated his vehicle at an excessive rate otf speed. Neither owner of the vehicles involved should be allowed to recover damages.”

The record does not support plaintiffs’ invocation of the doctrine of last c-lear chance. The evidence shows that Miss West swerved her car to the right and applied the brakes in a desperate but futile effort to avoid colliding with the Mustin car. While the exact relative position of the cars at the time she swerved to the right and applied her brakes is not established 'by the record, it is logical to believe that, because of the obstruction in the northeast corner of the intersection, Miss West could not see the Mustin car until it had proceeded into the intersection. Certain it is that the record does not show that Miss West was a sufficient distance away —at the time the Mustin car came within her field of vision — to have stopped her car or maneuvered it out of Mrs. Mustin’s path.

The judgment appealed from is affirmed, with costs.


author: TALIAFERRO, Judge.

text:
    BREAZEL et al. v. TAYLOR.
    No. 7452.
    Court of Appeal of Louisiana. Second Circuit.
    April 28, 1950.
    Rehearing Denied May 31, 1950.
    I-Ierold, Cousin & Herold, Shreveport, for James C. Pittman.

      Harvey G. Fields, Farmerville, for plaintiffs-appellees.
    J. R. Dawkins, Farmerville, for defendant-appellee.
   TALIAFERRO, Judge.

The several plaintiffs, being the heirs and legal representatives of Miss Topsy May, deceased, instituted this suit against the defendant, J. Ben Taylor, to establish title to a tract of land across (east and west) the NW 1/4 of SW 1/4, Section 19, Township 23 North, Range 1 East, 62 1/3 yards wide, in Union Parish, Louisiana, alleged to contain 6 2/3 acres, but which, in reality, contains only 5 2/3 acres. Physical possession of the land is disclaimed. The provisions of Act No. 38 of 1908 are availed of. Both sides trace title to one O. A. Bennett. Defendant has deed to one-half interest in the land from Bennett, not dated, but recorded April 19, 1924, while Miss May acquired title to the whole tract by sheriff’s deed, under writ of fi. fa., dated June 14, 1924. She had previously instituted suit against Bennett, a non-resident, and had the land attached. A money judgment was rendered in her favor with recognition of the lien resulting from the seizure under the attachment. The fi. fa. issued on this judgment.

On July 31, 1948, the defendant procured from Bennett another deed, with exclusion of warranty, to the entirety of the land.

Defendant challenged the validity of the sheriff’s deed to Miss May on several grounds and asserted ownership to the entirety of the land by and through the deeds to him from Bennett. The Court held that the plaintiffs and the defendant each owned an undivided one-half interest in the tract, and signed judgment accordingly on June 20, 1949. Neither side appealed.

On September 23, 1949, one James C. Pittman petitioned the Court for and was granted a devolutive appeal from the judgment insofar as same decrees plaintiffs to own only one-half interest in the land. He avers that he holds a mineral lease from plaintiffs embracing all of the said tract, of date prior to the filing of this suit, and that he is aggrieved by the judgment. Appeal was perfected. The case is now before us on this appeal. .

J. Ben Taylor has filed a motion to dismiss the appeal on these grounds, to wit:

1. That the judgment as between the original parties is now final and cannot be altered or changed as regards their respective interest, both being appellees. Therefore, mover, in his motion, argues that the appeal presents a moot question.

2. That the record, as presently made up, does not disclose, to any extent, that appellant has any interest in the minerals in or under the land; that since the recitals of fact in his petition for order of appeal, are not supported by the record, they must be disregarded;

3. That, as appellant did not intervene in the suit prior to judgment, but awaited the outcome of suit by his alleged lessors, he is now precluded from injecting himself therein;

4. That this Court is without jurisdiction ratione materiae because there is in dispute values in excess of $2,000.

(a) That since the entering of the stipulation between counsel that the value of the property was not in excess of $2,000, a producing oil well was brought in on a unit of which this land forms a part, and there is now accumulated “oil production benefits in excess of $4,000.00, to the knowledge of the appellant.”

Appellant has filed here what, from its tenor, might properly be denominated an answer to the motion to dismiss the appeal, to which is attached a copy of a mineral lease purporting to have been signed by the plaintiffs unto appellant, covering the whole of the land, wherein a consideration of $2,000 is expressed, same being dated October 7, 1948. We are asked to consider this lease as part of the record. This, we cannot do. Being an appellate Court, vested with jurisdiction solely to consider appeals and adjudicated cases properly before it upon the record as made up in trial courts, the right to receive, weigh and consider evidence not introduced during trial is not ours.

It is obvious that as the plaintiffs, prior to the institution of this suit, executed mineral lease of the land to Pittman, the appellant, for $2,000, he has involved herein a very substantial, and a highly valuable interest, and is very much concerned as to who is finally adjudged to be the owner of the land. A decision o'f the suit instituted by the plaintiffs would not be binding upon him. The fact that the parties to the suit appear to have acquiesced in the judgment by not appealing, accentuates the importance to appellant of having his day in court.

On the question of jurisdiction, there is serious doubt of the right of this Court to entertain same.

It has often been held by the courts of this state that the non-joinder of a necessary party to a suit will be noticed and proper action taken by the court, ex proprio motu, to the end that such party be impleaded. By so doing the rights of all concerned are protected and institution of another suit or suits avoided.

This Court, not so long ago, was confronted with the identical question in Holicer Gas Company, Inc., v. Wilson, et al., La.App., 39 So.2d 637, 638. We therein said: “The general rule that the question of non-joinder of parties should be tendered in limine has not a controlling influence where the absence of a necessary party to a suit is, from the record, manifest to the court. The court, in such circumstances, may take notice of such fact and direct such procedure as, in its judgment, will bring before it all persons whose interest will be directly affected by the judgment to be rendered in the case.”

Reference was made to DeHart et al. v. Continental Land and Fur. Company, Inc., et al., 196 La. 701, 200 So. 9. This course will be followed in the present case.

For the reasons herein given, the judgment from which appealed is annulled and set aside, and this case is now remanded for the two-fold purpose, viz.:

1.- To implead James C. Pittman, appellant, or in case this is not done, to allow him opportunity to intervene in the case and assert such rights as properly inhere to his status as lessee of the plaintiffs; and

2. To allow the introduction of testimony concerning the value of the property rights involved herein in order to determine the question , of appellate jurisdiction.

Costs of appeal shall be paid equally by appellees..

Fixing of liability for all other costs will await final judgment on the merit0


author: HARDY, Judge.

text:
    LANDRY v. NEWS-STAR-WORLD PUB. CORPORATION et al.
    No. 7470.
    Court of Appeal of Louisiana. Second Circuit.
    April 28, 1950.
    Rehearing Denied May 31, I960.

      Oliver & Digby, Monroe, for appellant.
    Theus, Grisham, Davis & Leigh, Monroe, Thompson, Thompson & Sparks, Monroe, Madison, Madison, Files & Shell, Bastrop, for appellees.
   HARDY, Judge.

This is an action in which plaintiff, Louis P. Landry, seeks the recovery of damages resulting from personal injuries when he was struck on the head and body by a metal pipe which fell from a scaffold which was being used in the installation of awnings on a building. :

There are three sets of defendants'; the News-Star-World Publishing Corporation and its insurer, Employers Liability Assurance Corporation, Ltd.; Pearce Paint & Paper Company, a commercial partnership, the individual partners, Clifton G. Pearce, Clifton G. Pearce, Jr., James Larkan, Jr., and the insurer of the partnership, Globe Indemnity Company of New York; and Baham & Williamson Paint Contractors, a commercial partnership, the individual members thereof, Elmer R. Baham and L. Alton Williamson, and the insurer of the partnership, Employers Liability Assurance Company, Ltd.

After trial there was judgment in favor of plaintiff and against the Pearce Company, its individual .partners and its insurance carrier, Globe Indemnity Company, in solido, in the sum of $24,322.52, with a limitation of the liability of the insurer to $10,-000.00, the extent of its policy obligation. The judgment rejected the demands of plaintiff as against all other defendants. From this judgment plaintiff has appealed. Defendants, Pearce Company, the individual partners thereof, and its insurer answered the appeal, praying that the judgment against these defendants be reversed, or, in the alternative, reduced to a sum not in excess of $10,000.00.

Despite the voluminous record there is not a great deal of serious dispute with reference to the material facts involved, which we proceed to relate as briefly as may be possible.

The News-Star-World Publishing Corporation is the owner of a three-story brick building at Municipal No. 110 North Second Street, which location is in one of the principal business districts of the City, of Monroe, Ouachita Parish, Louisiana. Sometime prior to June 12, 1948, the corporation entered into a verbal contract with the Pearce Paint & Paper Company of Monroe, under which the latter engaged to repair and replace the awnings of the windows on the front of the building for a stipulated price. On or about Saturday, June 12, .1948, Pearce Company began the work of replacing the canvas awnings on the building in accordance with its contractual obligations. In the, course of this work, and as a preliminary to beginning actual operations, agents and employees of the Pearce Company rigged a scaffold or stage to be used in the work above the first floor level, that is, the work of replacing the awnings over the windows on the second and third floors of the building in question. The stage consisted of a platform or floor board approximately eighteen inches in width -and some sixteen to eighteen feet in length. This platform was laid on metal stirrups, spaced in such manner as to span the required opening where the work was to be performed, one near either end of the platform, to which stirrups the platform was attached by means of u-bolts and ropes. At a height of approximately three feet above the platform, and on the back edge thereof away from the building a back bar or safety rail was affixed ‘by passing the same through two rings, one on each stirrup, in such manner that the ends of the bar extended about eighteen inches beyond the rings. The rings were fixed at the end of projecting steel arms welded to the stirrups at points above the actual edge of the platform. The rail or back bar, an iron pipe approximately two inches in diameter, was about the same length as the platform or floor board. A wire was passed through a hole near one end of the pipe and secured to the ring and arm of the stirrup at that end while at the other end the bar was secured only by means of a rope. As a further measure of security sash cord was wound about the pipe and' fastened to the stirrup rings and arms. We note that a safety rail or back bar of the character used in this case is required under the provisions of Act 264 of 1908. The stage was suspended from hooks on the cornice or edge of the roof of the building and was raised or lowered by means of ropes at either end passed through blocks and pulleys, which ropes reached from roof to sidewalk.

It appears that the work on the first floor windows was performed on Saturday, June 12th, in which work the stage was not used. On Monday, June 14th, the awnings were installed on the second floor windows, and in this operation the stage was employed. There was a cessation of work on Tuesday, June 15th, due to the fact that the employees of the Pearce Company were not familiar with work at this altitude, that is, at the third floor level. On the morning of Wednesday, June 16th, Mr. E. R. Baham, at the request of Mr. Pearce, undertook to assist in the installation work and actually installed the awnings on the north side window of the third floor. After this operation was completed it became necessary to move the stage to the center window on the third floor. The Pearce employees, including Baham, assisted in this' operation, which was accomplished by means of hand lines passed from the roof to the platform. On lifting the platform by means of these lines it was possible to slip the supporting hooks along the cornice or the edge of the roof approximately a foot at a time until the stage was brought into proper position.

The moving of the stage to the center window was completed, and Baham stepped out on the stage for the purpose of releasing the hand lines used in the moving operation before beginning work on the awning. While he was so engaged the back bar or safety rail in some inexplicable manner became loosened, and fell from its position to the sidewalk below, striking the unfortunate plaintiff, who was passing along the sidewalk en route to his place of -business some distance farther up the same street.

At the time of the accident, according to the estimates of witnesses, the platform had been in position for. a period of approximately eight minutes, and Baham, who testified that ■ he was- almost thrown from the platform by the falling of the bar, had been on the platform for only about half of this time, that is, some four minutes.

The* specific cause of the falling of the bar is not shown -but it appears that the end fastened with sash cord pulled out of the ring to which the cord was attached and the falling weight of the bar pulled loose and broke the sash cord and wire securing the other end, as well .as a rope which was tied from the middle of the back bar to the platform.

With respect to the pleadings involved there appears to be nothing requiring particular comment. A plea of vagueness was filed by defendants, which was sustained to the extent of ordering plaintiff to itemize certain expenses, with which action of the court plaintiff complied. Exceptions of no cause of action on the part'of Baham and Williamson were sustained subject to the right of plaintiff to amend his petition, which was done. No point of objection is raised by any of the parties with respect to these matters of pleading.

Reference to plaintiff’s petition discloses specific allegations of negligence as against the several principal defendants, which we quote as follows:

By Pearce Paint and Paper Company, its partners, agents and employees, and Baham and Williamson Paint Contractors and its employees:

“(a) Failing to exercise proper caution in the handling of a dangerous instrumentality such as the pipe which struck petitioner; said pipe being about IS feet long and 2 inches in diameter. In this connection petitioner is informed, and, upon such information, avers that the pipe which struck him was being lifted by ropes attached to pulleys; that said pipe was insecurely fastened to these ropes and that the ropes and pulleys were so arranged that there was nothing to prevent the pipe from becoming unbalanced, slipping out of the ropes and falling to the sidewalk below.

“(b) Failing to place a barricade which would prevent pedestrians from walking along the sidewalk in a place where there was danger of their being struck by falling objects used in connection with the installation of awnings on buildings of News-Star-World Publishing Corporation.

“(d) Failing to place signs warning the public of the fact that work was being conducted above the sidewalk- which made it hazardous for pedestrians to proceed along the sidewalk in front of the building of News-Star-World Publishing Corporation.

“(d) Failing to place beneath the work being done, some, net, stand or anything of similar nature to catch any object which might fall from above so that same could not cause injury to any pedestrian.”

By News-Star-World Publishing Corporation in addition to its alleged responsibility for acts done by Pearce Paint and Paper Company:

“(a) Failing to place a 'barricade along the sidewalk in front of its building so that pedestrians would not 'be exposed to the hazards involved in the inherently dangerous work of installing awnings on its building when its officers, agents and employees knew or should have known that such barricade had not been constructed.

“(b) Failing to prevent Pearce Paint and Paper Company from undertaking the. installation of awnings on the building until such time as barricades, warning signs, or other protective devices had been erected.

“(c) Failing itself to install barricades and/or warning signs upon the failure of Pearce Paint and Paper Company to erect such barriers and signs.

“(d) Failing generally to do the things necessary to protect and warn the public against the hazards of the dangerous work being done on its building.”

In the alternative plaintiff alleged that “the dangerous instrumentality inflicting the injury to him was under the direct control of defendants, their agents and employees, and, had they used proper care, the accident would have been avoided”. As a consequence plaintiff invoked the doctrine of res ipsa loquitur.

The respective defendants, in addition to specific denials of each and every charge of negligence under the averments of plaintiff’s petition, alleged contributory negligence on .the part of plaintiff.

In oral argument and brief before this Court counsel for plaintiff urges liability on the part of the Pearce Company and its partners under the res ipsa loquitur doctrine. It is further urged that the Baham Company and its partners are liable as employees of the Pearce Company, who were charged with the particular responsibility of handling the stage in the course of installation of awnings at the third story level, and the same doctrine is invoked against these defendants. With respect to the Pub- ' lishing Corporation, proceeding upon the assumption that the Pearce Company was its independent contractor, it is contended that this defendant was under a direct responsibility as the owner of the building to undertake and carry through precautions for the purpose of protecting the general public against danger. In support of this position it is urged that work directly over a public sidewalk involving heavy materials is inherently dangerous and the failure of the owner of the building to take proper precautions constitutes negligence.

We proceed to a discussion of the points of law involved in the various charges above noted, first disposing of those which may be determined on the basis of facts alone.

We find no support under the facts which would sustain defendant’s plea of contributory negligence. It is true that the work had been in process for several days and even when operations were suspended the stage or platform continued to hang against the face of the building over the sidewalk. Conceding that plaintiff could and should have perceived the operations, and even the possible danger, we do not find that there is any reasonable support for the argument that he was obliged to refrain from using the sidewalk, and, as a consequence, that his failure so to do constituted negligence.

As to the liability qf the Baham firm and its partners, counsel for plaintiff concedes that the relationship between Pearce Company and the Baham partnership was that of employer-employee and argues that Ba-ham was charged with the particular responsibility of handling the stage in the installation of awnings at the third floor level, and further was actually on the stage at the time of the falling of the pipe. From this the conclusion. is drawn that these defendants are also liable for plaintiff’s injuries and that the doctrine of res ipsa loquitur applies to the Baham defendants.

As pointed out by the learned Judge of the District Court in his comprehensive and excellently written reasons for judgment, there is nothing in the facts adduced to indicate that Baham committed any act of misfeasance, and, being an employee, the employer must stand in his place ■under the provisions of Articles 2317 and 2320 of the Civil Code of Louisiana. With these stateménts of fact and the conclusion reached we are in complete accord. 1 As to the application of the doctrine of res ipsa loquitur we find nothing which would indicate that the Baham firm or its members had complete control of the instrumentality which caused the accident. On the contrary it is clearly established that Baham’s firm was subject to the directions of the Pearce Company, had taken no part in the construction or rigging of the stage, and there is no showing, even by the remotest implication that they were guilty of any negligence whatsoever. It follows that plaintiff’s claims against Baham & Williamson, the partners and the insurer, are without merit.

In view of the indisputable fact that Pearce Company was an independent contractor of the Publishing Corporation, plaintiff’s only hope of fixing liability upon the said corporation must rest upon the establishment, under the facts in the case, that there was a direct responsibility -upon the owner of the building; that they failed to carry out the responsibility, and that damage was incurred by a third person as a proximate result of their negligent act or acts.

We find no impelling necessity for a long and involved discussion of general legal principles and authorities in support thereof. Counsel for all parties have been most diligent in presenting every phase of this question, for which they indeed deserve the heartfelt thanks of the Court. Nevertheless, it is our opinion that all of the principles and all of the authorities must be considered in the light of the facts developed on trial.

As to the Pearce Company, plaintiff has properly invoked the doctrine of • res ipsa loquitur and has fulfilled all ■ requirements in laying the, foundation therefor. The established facts logically and convincingly lead to the conclusion that, the pipe which constituted the safety rail:of the stage would not have fallen except for some negligent act of omission • or commission chargeable • to the defendant, Pearce Company, its agents or employees, for whose actions it would be liable. Under this circumstance the burden of proof shifted to the said defendant to exculpate itself from any imputation or conclusion of negligence, and this burden it has failed to discharge. It is certain that the pipe would not have fallen if it had been securely and properly attached to the stage. Since the stage was assembled and rigged by employees of the Pearce Company, the failure to properly secure the pipe definitely constitutes a negligent act of omission. This conclusion is borne out and substantiated beyond question by the vast preponderance of the testimony on this point. Although it was established, as we have noted above in our statement of facts, that one end of the pipe was properly secured not by ropes alone but by wire passed through a hole in the pipe and attached to the -ring and arm of the stirrup, it is further shown that the other end of the pipe was attached only by the use of a rope fixed thereto by a half hitch. The only logical recapitulation of the sequence of events which will ¡bear examination is that in moving the stage the rope which held the bar at one end became loosened to such an extent that the weight and movements of Baham caused the pipe to slip out of the rope; the weight of the unsecured end dropping free pulled loose or broke both the center rope and the wire and rope at the opposite end. Had the pipe been securely fastened at both ends it could not have fallen. Perforce it follows that the agency responsible for this omission must be held answerable for its carelessness, negligence and the consequent results therefrom.

Proceeding to plaintiff’s claims as against the Publishing Corporation, we first note that plaintiff’s effort to invoke the doctrine of res ipsa loquitur against the named defendant must fail. One of the requisites of the application of the doctrine is that the instrumentality which caused the injury must be shown to have been under the complete and exclusive control of the defendant charged.. Lockwood v. Kennedy, La.App., 44 So.2d 176; Ross v. Tynes et al., La.App., 14 So.2d 80; Gerald v. Standard Oil Co. of Louisiana, Inc., 204 La. 690, 16 So.2d 233; Welcek v. Saenger Theaters Corp., Inc., La.App., 5 So.2d 577. In the instant case it could not be, and indeed it is not now contended, that this element was established. On the contrary, it is established without contradiction that the Publishing Corporation had no control of any nature or character over the stage which was the instrumentality causing the injury.

Adverting to the specific allegations of negligence as against the Publishing Corporation, which we have set forth above in full, it is to fee observed that plaintiff relies upon the claim that the said defendant failed to place barricades or signs or other warnings or protective devices; further failed to require these precautions to be taken by its contractor, the Pearce Company, and generally failed to do whatever was necessary to protect and warn the public against the hazards of the dangerous work which was in the course of performance.

In brief, distinguished counsel for plaintiff concedes the general principle that a contractee is exempt from liability for the negligent acts of the independent contractor. But counsel zealously urges that this general principle is not absolute and does not release the owner from his own faults or negligent acts of omission or commission. Unquestionably this conclusion is perfectly sound and is well established, but it is requisite that the established facts substantiate the conclusion of liability under such exceptions.

In the first place we observe that it was necessary to show that the work being done was dangerous. In this plaintiff has failed, and, conversely, the record amply justifies the conclusion that the actual work was not dangerous. There could 'be nothing dangerous in the replacement of canvas awnings, and it was established that the only tools used in the operation were a screw driver and a pair' of pliers, which were carefully handed out of each window to the workmen on the stage as and when required. It is quite unnecessary to go into any greater detail along this line since the accident itself was not the result of any work, but occurred by reason of a defect in the platform itself, an appurtenance or instrumentality with which the defendant Publishing Corporation had not-the slightest relation or connection.

Plaintiff’s claims of negligence on the part of defendant Publishing Corporation for failure to place barricades and signs or other warning devices in lieu of the taking of such precautionary measures by its contractor are untenable. The testimony of a number of witnesses establishes the fact that employees of the Pearce Company, during the course of work on the upper floors, were accustomed to station themselves on the sidewalk below the area occupied by the stage for the specific purpose of warning passing pedestrians. It is true that at the time of the accident there were no employees on the sidewalk for the performance of this duty. But the significant fact in this connection is that the stage had just been moved, had been in place only for a few minutes and, actually, there was no work in progress, the only activity on the stage being that of Baham, who was releasing the hand lines. The employees who had been engaged in the operation of moving the stage had left the upper floor and were on their way back to the sidewalk. During this brief interim the a-ccident occurred.

The precaution taken and the method used 'by the Pearce Company was certainly reasonable, and the unfortunate coincidence of the falling of the safety rail during this time cannot be considered significant or conclusive as to the establishment of negligence, particularly against the Publishing Corporation.

Additionally, we are aware-of the testimony by witnesses, including one tendered on behalf of plaintiff, that it was not the custom to establish barricades or display warning signs beneath stages which are being used in work upon the exterior of buildings. In the opinion of this Court in Anderson v. London Guarantee & Accident Co., Ltd., 36 So.2d 741, 747, certiorari refused, we quoted a number of authorities with respect to negligence, in the course of which we noted the following quotation: “ ‘The common usage of a business or occupation is frequently stated to be a test of care or negligence, and accordingly, conformity to custom or usage is very generally regarded as a matter proper for consideration in determining whether or not sufficient care has been exercised in a particular case, * * 45 Corpus Juris 706,”

Since it was established that it is not the custom to take the precautions urged by counsel for plaintiff as being essential, it obviously follows that the lack of these precautions cannot be adopted as inducing a conclusion of negligence. There are a number of operations performed on the outside walls of buildings, such as the replacement of awnings, painting, window washing, the cleaning of facings, etc., and in themselves these operations do not involve a danger to the general public which is inherent in the nature of the work itself. We are impressed with the fact that in the instant case the work had no direct connection with plaintiff’s injury, and, certainly, the work which had been contracted could not be regarded as inherently or intrinsically dangerous.

Learned counsel for plaintiff strenuously argues that the act of omission in failing to place signs or warnings was a contributing cause to the injury to plaintiff “for had such sign or a barricade been placed on the sidewalk plaintiff would have not been injured”. With due respect the conclusion reached appears to us to be a non sequitur since it is evident that it was not the failure to place signs or barricades, nor indeed was it the work itself, but it was an unforeseen and unforeseeable circumstance which brought about plaintiff’s injury.

We quite agree with the argument on behalf of plaintiff that the general principle exempting a contractee from liability is subject to the exception in the case of inherent or intrinsically dangerous work, which principle was enforced by our Supreme Court in Montgomery v. Gulf Refining Co., 168 La. 73, 121 So. 578.

The burden of counsel’s argument is expressed in his observation: “Certainly work directly over a public sidewalk with heavy materials is inherently dangerous; and certainly proper precautions were not taken.”

This observation has no applicability under the facts of the instant case, which facts we have above noted.

We have carefully considered a number of Louisiana cases which bear, in greater or less degree, upon the points at issue. The Montgomery case, supra, involved the transportation of gasoline, certainly a work which can only be considered as inherently dangerous and therefore necessitating unusual precautions. Jackson v. Schmidt, 14 La.Ann. 806, involved the demolition of a wall; Rock v. American Const. Co., 120 La. 831, 45 So. 741, 14 L.R.A., N.S., 653, under the facts of which it was shown that the plaintiff was injured by an excavation in the sidewalk. The principles applied to the operations considered in the above cases have no applicability to the facts involved in the instant case, for in each one the actual work was the cause of injury.

More appropriate to the consideration of the questions before us is the principle enunciated in the case of Beck v. Dubach Lumber Co., 171 La. 423, 131 So. 196, 198, as follows: “The doctrine on which liability was predicated in the Montgomery Case could not be made to apply to the facts of the present case. The instrumentalities employed by the contractors Jeffus and Woods in cutting and removing the timber from plaintiff’s land were not ‘inherently’ and ‘intrinsically’ dangerous within the meaning of the rule on which the Gulf Refining Company was held liable.”

To the same effect is the quotation from 39 Corpus Juris, Section 1535, which was adopted by Judge Taliaferro in his opinion in Marbury et al. v. Louisiana Highway Commission, La.App., 153 So. 590, 593: “Where the act which causes the injury is one which the contractor was employed to do and the injury results, not from the manner of doing the work but from the doing of it at all, the employer is liable for the acts of his independent contractor. If the contractor does the thing which he is employed to do, the employer is responsible for that thing, as if he did it himself. However, where the injury does not necessarily result from the work, the contractee is not liable under this exception.” (Emphasis by the Court.)

This Court had further occasion to enunciate the principle here involved in Riche et al. v. Thompson, 6 So.2d 566, 569, as follows: “The owner of a building is not the insurer against injury of all who might pass or enter. He is required only to exercise ordinary and reasonable care for their protection. Bartell v. Serio, La.App., 180 So. 460, 461; and many cases cited therein from this and other jurisdictions.”

In continuing the opinion in the above cited case the Court made reference to still another principle which is apropros here: “The Supreme Court of this State in New Orleans & N.E.R. Company v. McEwen & Murray, 49 La.Ann. 1184, 22 So. 675, 680, 38 L.R.A. 134, said: ‘Negligence consists in a failure to provide against the ordinary occurrences of life, and the fact that the provision made is insufficient as against an event such as may happen once in a lifetime, or perhaps twice in a century, does not * * * make out a case of negligence upon which an action in damages will lie.’”

Our learned brethren of the Orleans Court had occasion to consider a case involving facts and the application of principles of law somewhat similar to the matter before us in DeCuers v. Crane Co. et al., 40 So.2d 61, 68. We quote from the Court as follows:

“We next consider the contention of plaintiff that the Holmes Company was at fault and that, therefore, it and its liability insurance carrier should be held liable. We note from the petition that it is not charged that the Holmes Company is liable because of its ownership of the adjacent premises. The only charges are directed at the negligence of that company and the other defendants in failing to provide a proper passageway, and in connection with the stacking and chocking of the pipe. As a matter of fact, under the firmly established jurisprudence of this state, no liability based on the ownership of the adjacent premises could be charged to the Holmes Company, and it could not be held responsible without evidence showing that the falling of the pipe was the result of its negligence. Far from showing this, the record establishes the fact that the Holmes Company had nothing whatever to do with the stacking of the pipe and was in no way involved or concerned with its presence on the sidewalk, except that the pipe was to be used in the carrying out of the contract by the Glover Company and its subcontractors. The Glover Company was an independent contractor and over its work the Holmes Company had no control. Its only right was to see that the contract was carried out in accordance with its terms, but it could not interfere in any way with the conduct or progress of the work.

“It is well settled that where a contractor undertakes to do work for an owner under a contract which provides that the owner shall furnish the plans and specifications and that his only right shall be to insist that the job be done in accordance with those plans and specifications, the contractor does not become the agent or employee of the owner. Therefore, the owner is not liable to third persons who may be injured through fault of the contractor or his employees. Robideaux v. Herbert, 118 La. 1089, 43 So. 887, 12 L.R.A., N.S., 632; Crysel v. Gifford-Hill & Co., La.App., 158 So. 264; West Bros. v. Pierson, La.App., 2 So.2d 71. This rule is applicable as well where a cost plus contract is involved as where the contract provides for a fixed compensation. Standard Oil Co. v. Fontenot, 198 La. 644, 4 So.2d 634; Underwood Contracting Corp. v. Davies, 5 Cir., 287 F. 776.

“The mere fact that, because of the operations of the contractor or subcontractor, a dangerous situation was created on the sidewalk alongside the place of business of the Holmes Company did not make that company liable for an accident which might result. McCormack v. Robin, 126 La. 594, 52 So. 779, 139 Am.St.Rep. 549; Henrichs v. New Orleans Public Service, Inc., et al., La.App., 192 So. 383.”

In Todaro v. City of Shreveport et al., 187 La. 68, 174 So. 111, the plaintiff, while standing on a sidewalk, was injured by the falling of a canopy or shed fastened to the wall of a building owned by the defendant municipality which was being demolished by an independent contractor. The charge of negligence leveled against the City of Shreveport was based upon its failure to provide barricades or warning signs which had not been established by the contractor. The Supreme Court denied recovery and predicated its conclusion upon the fact, inter alia, that the defect which caused the fall of the canopy was not apparent and that the City,'not being an insurer of the safety of pedestrians, was not chargeable with negligence for failure to take precautions against a: nonapparent danger.

It appears to us that the identical principle is applicable here. The defect which caused the fall of the safety rail was certainly not apparent, and the conclusion is therefore inescapable, under the holding in the Todaro case, that liability does not attach to the principal.

We have carefully considered with deep interest the citations of authority on the part of counsel for all parties from other jurisdictions and find, as might well be expected, a division of opinion. We refrain from adverting to any discussion of these cases since it is our definite conclusion that the principles established by our own courts, in the cases noted, conclusively dispose of the issues involved.

Plaintiff’s injuries did not result from the performance of the work which the Publishing Corporation had contracted to the Pearce Company. The only hope of recovery by this plaintiff against the Publishing Corporation would be upon the basis of a showing that the work itself was inherently or intrinsically dangerous and that the owner, cognizant of this fact, failed in requiring its contractor to take precautions, or, in the event of his failure, to provide the necessary safeguards itself. The sine qua non is therefore the inherent danger of the work, which in this instance has not been established, and it follows that plaintiff’s demands against this defendant were properly rejected.

There remains for consideration only the quantum of damages. Plaintiff’s petition itemized his damage's as follows:

Permanent physical disability resulting in inability to continue his business with consequent loss of earning capacity $328,000.00

Medical, hospital, nursing, and related expenses incurred or will be incurred 25,000.00

Physical pain and suffering 20,000.00

Unquestionably plaintiff was seriously and most painfully injured. The blow on the head resulted in a compound com-minuted fracture of the skull in the right parietal region and through the opening in the skull the brain tissue herniated, necessitating surgical removal of pieces of bone, ligature of blood vessels, suturing of the dura, grafting of bone, etc. Additionally, plaintiff sustained severe injuries to his right leg, which also necessitated surgical procedure, a perivertical sympathec-tomy block, followed by a lumbar sympa-thectomy.

As was observed by the District Judge no amount of money could compensate plaintiff for the injuries suffered.

The differences in the findings of the medical experts for plaintiff and defendants are of , minor importance except with respect to the degree of disability. Unquestionably, plaintiff will experience some substantial degree of disability and there will be a persistence of pain at intervals and the need for additional medical attention, but perhaps some general improvement. The following observation from the opinion of the learned District Judge is pertinent: “Consideration of Mr. Landry’s condition reflects certain factors on the bright side. Mentally he is alert and at least for an interval he can astutely handle any business matter brought to his attention. Time has apparently improved his condition to some extent.”

At the time of the accident the plaintiff, a man of 56 years, was President of the Twin City Motor Company, Inc., of Monroe. The business was a family corporation and plaintiff individually owned, and still owns, so far as the record discloses, 120 of the 150 shares of its capital stock. While it is true that plaintiff has suffered a decrease in salary since the accident, it appears that the major portion of his income, as far as the business is concerned, has been, and will continue' to be, derived from bonus payments based upon corporate earnings. • It follows that the reduction of his salary will result in an increase to that extent in the surplus or net profits of the corporation, which saving will largely benefit plaintiff, the owner of four-fifths of the stock. The record does not reflect any loss to the company directly attributable to Mr. Landry’s injury, and since he is in condition at least to give the benefit of his experience and advice, it is questionable if the business will suffer.

As was observed by the District Judge courts properly consider the financial ability or responsibility of defendants in connection with the assessment of damages. Like plaintiff’s motor company, the defendant, Pearce Company, is a family organization and its insurance is limited to the sum of $10,000.00.

The itemized statement of the allowance of damages was set forth by the District Judge as follows:

“(1) $10,000.00 for personal injuries and loss of earning power,

“(2) $5,000.00 for pain and suffering, and

“(3) $9,322.52 for medical, nursing and hospital.”

The sum allowed for expenses incurred was computed on the basis of statements of charges made to and paid by the plaintiff. While it is true plaintiff’s testimony-with respect to some of these expenditures is an approximation based on his own conclusions, we are not prepared to say that they are unreasonable.

Under the circumstances, and taking into consideration all the elements involved, we do not feel that the facts would support an increase in the amount awarded by the District Judge.

For the reasons assigned the judgment appealed from is affirmed in all respects at appellant’s cost.