author: BELL, J.

text:
    No. 9090
    Orleans
    GAIENNIE CO., LTD., AND UNION INDEMNITY CO. Appellant, v. JOHN O. CHISOLM, DOING BUSINESS AS JOHN O. CHISOLM & COMPANY
    (January 4, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Master and Servant —Par. 154, 156.
    A general contractor, that is to say, a “principal contractor” or “principal” (So designated in the Employers’ Liability Act of Louisiana), is an employer of all workmen, mechanics or laborers, whether the latter are engaged directly by him or by some subcontractor in the construction of buildings or other works undertaken by the general contractor. Such general contractor is, therefore, in no sense a third party, that is to say, “some other person than an employer”, who, as such, may be sued under Section 7 of the Act for damages ex delicto, upon conditions therein provided.
    2. Louisiana Digest—Master and Servant —Par. 154.
    While Section 6 of the Act provides that a “principal” or general contractor who pays compensation to an injured employee of the principal’s sub-contractor may recover it back from the subcontractor, defined as “immediate employer”, there is nothing in this section or other sections of the Act which provides that an immediate employer who pays compensation to an injured workman directly employed by him may recover it back from the principal.

      Appeal from the Civil District Court, Parish of Orleans, Division “G”. Hon. Columbus Reid, Judge.
    This is a suit involving the construction of Sections 6 and 7 of the Workmen’s Compensation Act No. 20 of 1914.
    An exception no cause of action was filed in the lower court and maintained. Prom this the plaintiff appealed.
    Judgment affirmed.
    J.- C. Henriques and Prank Doyle, of New Orleans, attorneys for plaintiff, appellant.
    Gordon Boswell, of New Orleans, attorney for defendant, appellee.
   BELL, J.

The appeal in this case is from a judgment maintaining an exception of no cause of action. At the hearing on appeal, counsel for all parties to the appeal submitted the following written admissions:

“It is admitted that Gaiennie & Co., Ltd., were sub-contractors of Chisolm & Company, who was the general contractor; and it is further admitted all questions of misjoinder and nonjoinder are waived, and the only question to be decided is whether a general contractor can be considered as a third person under the provisions of Sections 6 and 7 of the Compensation Act.”

It was also admitted in argument by counsel for plaintiffs and appellants that the exception of no cause of action was properly maintained as to the co-plaintiff, the Union Indemnity Company. (Bouchon vs. Southern Surety Company, et al., 151 La. 503, 91 South. 854.) The parties before this court are, therefore, Gaiennie Co., Ltd., as plaintiff and appellant, and John O. Chisolm as defendant and appellee.

Prom the foregoing admissions amplifying the allegations of the petition as filed, the case is presented under facts as follows:

On June 30, 1920, while defendant, John O. Chisolm, as general contractor, was erecting the Delgado Trade School in the city of New Orleans, and while plaintiff, Gaiennie Co., Ltd., as sub-contractor, was installing the plumbing in the building, William Shiel, a pipefitter, working for plaintiff, sustained physical injuries for which he sought and obtained compensation under the Employers’ Liability Act in the sum of $363.04. This amount was1paid him by the Union Indemnity Company,, carrying compensation insurance for account of plaintiff.

On May 13, 1921, plaintiff and the Union Indemnity Company filed these proceedings, alleging, in their petition, that the suit was brought against defendant as a third party under the provisions of the Employers’ Liability Act, and that plaintiffs were “entitled, as subrogees, to receive $10,000.00 damages by reason of the injuries received by the' said Shiel”; that they were further entitled to deduct from the amount of damages here claimed the aforementioned sum of $363.04, which the Union Indemnity Company had paid Shiel, “and to turn over the balance to William Shiel, for whose use and benefit the law authorizes this suit to be brought”. Charging the defendant with acts of gross negligence, detailed by averments which could not be here noted, plaintiffs prayed for judgment in the above amount.

At the time of the accident the Compensation Law, particularly Section 7, upon which appellant specially relies and which was amended by Act 38 of 1918, read as follows:

“That when an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may, at his option, either claim compensation under this Act, or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act, an employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee or his dependent to recover against that person, and may compromise the claim therefor in his discretion; provided, if the employer shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this Act, then any such excess shall be paid to the injured employee or his dependent, less the employer’s legitimate and reasonable expenses and costs of tjb.e action, which payment shall be credited upon the balance of compensation, if an!y, that may become due thereafter.”

It is argued, on behalf of appellant, that the foregoing provisions of the Act constitutes the defendant “some other person than the employer” of the “injured employee”, Shiel, and that defendant is consequently a “third person” within the intendment of the Act, and is a party from whom damages ex delicto may be recovered in excess of the compensation already recovered by Shiel. It is further contended that, under this same section of the Act, appellant, as the immediate employer of Shiel, is legally subrogated to Shiel’s action not only for the compensation already received by Shiel, but also for damages, which, when recovered by appellant, shall be payable by him to Shiel after deduction of two items, to-wit: The amount of compensation already received by Shiel and also reasonable expenses and costs of this action.

On the other hand, it is contended by appellee that the rights and liabilities of the ■ parties are controlled by the provisions of Section 6 of the Act, and not by those of Section 7, on which latter section the suit is predicated, under erroneous conclusions that the defendant is a . third party tort feasor. It is accordingly argued for defendant that:

1.Appellant's only right by way of legal subrogation would have been by suit for recoupment of such compensation as appellant has paid to his employee, Shiel.

2. That appellant, as subrogee of Shiel for recovery of compensation paid Shiel, can have no greater right than Shiel, his subroger.

3. That Shiel, as an employee of appellant, the sub-contractor in this. case, has no right of action ex delicto against appellant’s principal or general contractor, inasmuch as the only right of action which Shiel has is for workman’s compensation, which he, at his option, may have asserted against either appellant, his immediate employer, or against the defendant, his principal employer.

The foregoing contentions appear to us to be well founded, for the following reasons:

Sheil, having elected to accept compensation from his immediate employer, has, under Section 34 of the Act, exhausted his rights and remedies, for it is provided in said section as follows:

“That the rights and remedies herein granted to an employee or his dependent on account of a personal injury, for which he is entitled to compensation under this Act, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, relations or otherwise, on account of such an injury.”

It therefore follows that appellant could not be legally subrogated to an action ex delicto, his subroger being barred from such action because of his electing to seek relief by way of compensation.

In Helton vs. Tall Timber Lumber Co., 148 La. 180, 86 South. 729, it was held that under the Compensation Act one employing an independent contractor is liable only for' workmen’s compensation in the case of one working for the contractor, if the workman was an employee and not himself an independent contractor.

If Shiel, the injured employee, had seen fit to seek compensation, as he could have done, directly from the principal or general contractor rather than from his immediate employer, the sub-contractor. Chisolm, the general contractor, could have called, the immediate contractor (appellant herein) to defend the suit; or had Chisolm paid compensation to Shiel, Chisolm would have had a cause of action against appellant for reimbursement, all in conformity with Sections 2 and 4 of the Act.

However, there is no such proceeding now before the court, the action being predicated as one in tort against Chisolm, a principal contractor, as held under a recent ruling made by this court in Clementine vs. Ritchie, 1 La. App. 296. In that case, we held that the party employing all subcontractors, mechanics and laborers in the construction of -a building, is an employer of all such workmen who may be directly employed by sub-contractors, and that all such workmen were protected by the provisions of the Compensation Act. Under this ruling we find here, as we did in the case cited, that an owner, if building for himself, or a general contractor building for another, is, under the plain intendment of the Act, an employer and not a third party.

The present suit, brought under Section 7 of the Workmen’s Compensation Act, as plainly averred in the petition before us, is properly dismissed as against the principal employer under an exception of no cause of action.

Counsel for appellant invites the court’s special attention to the following authorities: Foster & Glassell Co. vs. Knight Bros., 152 La. 596, 93 South. 913; London Guaranty & Accident Insurance Co. vs. Vicksburg, S. & P. Railway Co., 153 La. 287, 95 South. 771; Haynes vs. Bernhard, 268 S. W. 509 (Tex.). We have carefully examined the foregoing cases and find the Louisiana decisions to be wholly inapplicable to the instant case. In the first of the cited cases, it was held, in compliance with the plain provisions of the statute, that an immediate employer who pays compensation to his injured employee has a cause of action against a third party by way of recoupment independent of the Compensation Law. A like ruling in the second of the cited cases was recognized in favor of the insurance company who had protected the immediate employer under similar conditions. These decisions were predicated on the doctrine:

“That where two persons are liable to another for injuries received, the one because of fault or negligence, and the other merely because of statutory requirement of duty, but without actual fault, the latter, upon paying for the injury so inflicted, may recover of the tort feasor as indemnity the sum so paid as upon an implied or quasi-contract.” Foster & Glassell Co. vs. Knight Bros., 152 La. 596, 93 South. 913.

The present suit is not based upon legal or conventional subrogation, nor is it brought directly by way of indemnity for which a tort feasor, under Article 2315, R. C. C., would be liable. Appellant’s suit is based solely upon rights as he claims to have under Section 7 of the Compensation Act as against one whom we find to be an employer and not a third party, as contended for. We therefore find the Louisiana citations relied upon as inapplicable to the present case.

In Haynes vs. Bernhard, a general contractor named Haynes was constructing a twelve-story building; Campbell was subcontractor, installing plumbing. An employee of Campbell by the name of Bern-hard was injured by an elevator operated by Haynes. The American Casualty Company was insurer for Campbell and paid Bernhard compensation for account of Campbell. The facts in the instant case are' very similar to those arising in the above cited case, and it is contended by counsel for appellant that the compensation law of Texas is the same as the Louisiana statute, in that it permits the injured employee to accept compensation and at the same time to proceed ex delicto against a third party causing the damage. The issue in this last cited case was to the' effect that Haynes, the general contractor, was not a third party within the meaning of the Texas Compensation Law. The court of last resort, considering the contention in the light of the statutes, said:

“The statute, if deemed intelligible for any purpose, which is quite doubtful, seems to contemplate, and under it the courts expressly hold, that the employee may pursue both remedies, although the insurance company in such case is entitled to be subrogated to the employee’s right of recovery against the third person.”

A careful perusal of this last cited case leads us to the conclusion that the decision holding the general contractor liable was not based upon any recognition that said contractor was a third party, but because of the fact, as shown in the language above quoted, that the law, unlike the Louisiana statute, gave to the injured employee a double remedy; one by way of compensation and the other by action ex delicto. The Louisiana Employers’ Liability Act, Section 34, denies double remedy, and hence this authority, even if we Were inclined to follow it, has no persuasive application in the light of the Louisiana statute.

For the foregoing reasons the judgment of the trial court is, in our opinion, correct and should be affirmed.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9160
    Orleans
    MRS. ROBERT P. BURTON, Appellant, v. ILLINOIS CENTRAL RAILROAD
    (October 5, 1925, Opinion and Decree)
    (November 2, 1925, Rehearing Refused)
    (December 11, 1925, Writ of Certiorari and Review Denied by Supreme Court)

      (Syllabus by the Court.)

    1. Louisiana Digest—Railroads—Par. 64.
    A person approaching a railroad track should stop, look and listen for an approaching train.
    2. Louisiana Digest—Railroads—Par. 63.
    If the evidence shows that by the use of the senses of sight and hearing a person crossing a railroad track could have seen or heard an approaching train, and he is struck by it, the legal conclusion is that he was negligent, and therefore he cannot recover.
    3. Louisiana Digest—Railroads—Par. 58.
    An engineer has a right to presume that a human being will exercise the instinct of self-preservation and will move off of the track before the engine strikes him.
    (Civil Code,' Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Hon. Sam. A. LeBlanc, Judge.
    This is a suit for damages arising out of the killing of plaintiff’s husband by being run over by railway cars.
    The case was tried by a jury and. a verdict was rendered for defendant, a judgment was rendered accordingly, from which the plaintiff appealed.
    Judgment affirmed.
    H. W. Robinson and E. M. Robbert, of New Orleans, attorneys: for plaintiff, appellant.
    Lemle, Moreno and Lemle, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

Plaintiff’s husband was run over and killed by the defendant’s cars. In her name, and in the name of his children, she claims $35,000 damages.

She alleges that her husband was 34 years of age and a jewelry salesman earning $500 per month; that part of the railway system of defendant is the double track in the Parish of Jefferson which crosses at "right angle the Shrewsbury Road, running from the Mississippi River to the Metairie Road about a mile and a half above the City of New Orleans and having an enormous traffic of pedestrians, automobiles, trucks and wagons; that at the point where the inbound and outgoing tracks of the railroad bisect said Shrews-bury Road, about a mile from the river, the tracks are elevated about twelve feet above roadway, and the ascent of the incline instead of being gradual is abrupt and begins at only 35 feet from the first rail; that the inbound track runs on the side nearest to the river, and the outbound track runs on the side nearest to the lake; that the inbound and outbound tracks are about thirty feet apart and a switch track lies along the inbound track on the said nearest to the river; that the railroad maintains no flagman nor gates at said crossing, but for warning, depends upon an automatic bell; that the construction of said crossing is a dangerous trap for travelers and has been the scene of many accidents; that because of the danger at this crossing the Race Track manager, during the races, placed a flagman there; that in October, 1921, the Police Jury of the Parish of Jefferson adopted an ordinance denouncing the crossing as a public nuisance and demanding that the railroad place there gates and a flagman; that traveling upon the Shrewsbury Road in the direction of the railroad track it is impossible to see an approaching train coming from up the river on the inbound track until one is upon the switch track; that immediately along the upper side of the Shrewsbury Road, about twenty feet from the inbound track towards the river, is a frame store building about twenty feet high and thirty feet wide, masking any view of the track; that foliage along the track intercepts the vision for a dozen feet beyond the store, that at about 250 feet up the track is a high board fence; and about 800 feet up is a large covered wharf and shed to unload horses at the race track, which completely shuts off any view of the track beyond that point; that the incline from the road to the track is not only extremely steep, but kept in very bad condition; that the space beween the rails is roughly planked; that there is a fall of several inches where the planking ends, and the gravel begins, all of which make it necessary for a chauffeur to give very careful attention to the road, and to divide his attention between the road and the train.

That alongside the embankment upon which the tracks are elevated are cattle guards over which an automobile could not be driven, so that it is impossible to drive to the right or to the left to avoid the trains; that in addition to the above conditions, the incoming and outgoing tracks are so close together that the noise of passing trains drowns the sound of any other train, and also the automatic signal, which thereby becomes worthless for giving warning of approaching trains; that on the morning of August 20, 1921, at eleven-five o’clock, plaintiff’s husband, driving on the Shrews-bury Road approached the inbound railroad crossing from the river side, driving a runabout automobile; that as he approached same a long, freight train came in view and was crossing the Shrewsbury Road in the outbound track, nearest the lake, the noise of which drowned every other noise; that plaintiff upon approaching said track, stopped, looked, and listened, and seeing no other train approaching, proceeded up the incline, intending, doubtless, to wait upon the intervening space between the inbound and outbound tracks, about 35 feet wide, until the above mentioned outbound freight train had passed; that the Panama Limited train, running on the inbound track, was then approaching, but that plaintiff could not see it on account of the above mentioned obstructions on the track; that the automatic signal did not begin ringing until thirty seconds before the train passed; that he received no warning of its approach; that the above train was due in New Orleans at 11:20; that the train was then late, and in order to gain time it was then going at an abnormal rate, of over seventy miles an hour, which, under the circumstances, was extremely dangerous; that the Panama Limited should have approached said crossing at a slow and guarded speed, for the reason that another train was crossing said road at the same time, creating a dangerous situation for travelers; that plaintiff’s husband moved slowly over said intersection; that he was in plain view of the engineer of the Panama Limited for more than one thousand feet, and that had said train been moving at an ordinary rate' of speed, it could have stopped at 880 feet, and the accident avoided, but that the said Panama train struck the automobile of plaintiff’s husband, in which he was seated, knocked it about forty feet, and completely wrecked it.

Plaintiff’s husband was thrown out of the automobile, and sustained internal injuries from which he suffered very great agony; that he was taken to the Charity Hospital where he died eight hours later! that the accident was caused solely by the negligence of the railroad.

For all of which the plaintiff claims $35,000 for herself and her minor children.

The defendant admitted that it ran its cars on tracks crossing the Shrewsbury Road, and that its Pamana Limited train struck the automobile in which plaintiff’s husband was seated and wrecked it; but denied all the other allegations of the petition. Further answering, they denied “that the accident in question was due to any fault or negligence on behalf of itself, its agents or • employees, and specially averred that the accident was due solely to the fajilt and negligence of the said Robert P. Burton in failing to stop, look and listen before attempting to cross, the track of defendant, and failing to heed the approach of the Panama Limited train; that the said accident took place in broad daylight, and had the said Robert P. Burton looked he could have seen the train approaching”. Defend: ant averred that the said Robert P. Burton was negligent in failing to hear the crossing signal blown on the whistle of the engine, and to heed the warning of the crossing bell, which was then ringing, and which is maintained as a warning to all those about to cross the track of an approaching train.

The case was tried by a jury who returned a verdict for defendant; a judgment was rendered accordingly, from which the plaintiff appealed.

There is little conflict as to the facts of the case.

The plaintiff in his auto proceeded at a slow rate along the Shrewsbury Road from the river towards the lake. He reached the tracks of the defendant railroad and had almost cleared them when “the front part of the pilot got the rear wheel of the machine, and whirled the machine around and threw his body out of the car up against the side of the engine, then carried him over about thirty feet against this box flying in the air, the machine went down in the ditch demolished”.

The train stopped, picked him up, put him in the baggage car, and then sent him to the hospital where he died a few hours later.

The evidence does not support several allegations of the petition.

The Shrewsbury Road is not the only highway from the City to the North and West. There is another along Oak Street.

The tracks of the defendant are elevated only six feet above the roadway.

The inbound and outbound tracks are 102 feet apart.

The defendant railroad placed flagmen on crossing during: the races.

Where the planking on the side of the track ends and the gravel begins, there is a fall equal to the thickness of the plank.

The cattle guards upon each of the inbound and outbound tracks are only on the New Orleans side of the crossing and not upon both sides.

The train was not late, on the contrary, it was on time, and was killing time or had “clock time” to reach its destination on time.

It is not proven that any other accident happened on said crossing.

The locality where the accident occurred may be described as follows:

The Shrewsbury Road runs in the direction of the river towards the lake at about a mile and a half from the river, the defendant runs two tracks at right angles across the road; the track nearer the river runs to New Orleans, and the track nearest the lake runs from New Orleans northward towards Chicago; the distance between the two tracks is 102 feet.

The embankment upon which the tracks are laid is five feet above the level of the road. The road between the two tracks and upon either side of the tracks is twenty feet wide, and paved with gravel, and is maintained by the Jefferson Highway Commission. Between the tracks the railroad had built a plank road sixteen feet wide on a level with the top of the rails. The gravel road and the plank road are in good condition. The approaches of the Shrews-bury Road, leading up to the railroad track, form a ramp or incline about thirty-six feet in length or an ascent of one foot in every six feet or about 7% degrees. This incline is also paved with gravel. There is some evidence that this incline had not a straight line on the top, but was “hollow or went down in the middle”. The whole crossing was good. Traveling on the Shrewsbury Road, ,in the direction of the railroad tracks, • there was on the left side of the road, a grocery store, a two-story building, 94 feet from the center line of the main track; opposite this building on -the right hand side of the road was a railroad crossing sign a hundred and fifteen feet from the main track; next came a small shed, and then a dance hall about 18 feet high, fifty feet from the main track, both these buildings were about 25 feet from the Shrewsbury Road; behind this dance hall and equi-distant from the railroad track were two houses; about 900 feet above the track was a platform and shed. Leaving the grocery and the dancé hall in the rear, the incline began 35 feet from the track; on the right side of this incline, about 20 feet from the track, was a railroad crossing sign and an automatic signal bell; at the top of the incline was an industrial, or passing, or switch track, with rails about five feet apart; then came a vacant space, about eight feet wide from the main track; and lastly the inbound or southbound track.

A witness was asked:

“Q. Put yourself in the center of the Shrewsbury Road, Mr. Murphy, on a line with the left hand wall of the two-story building (94 feet from the tracks), and look towards Chicago, how far up the track can you see?
“A. One hundred sixty-five feet.
“Q. At that point, fifty feet from the center of • the main line, how far up the track can you see, looking toward Chicago?
“A. Well, when you are fifty feet from the track, supposing it is cleared all the way down there for 50 feet out, you ought to be able to see as far as your eyes could carry you for a couple of miles, there is nothing out there.
“Q. On that day, - when making the map, did you actually stand at that point from the track and look up the track?
“A. Yes, sir; and I know you can see a great distance, standing out from the main line 40 feet, I could see a train almost at Harahan, which is three miles up the road; the track is straight all the way.”

Anthony Rouprich, a witness for the plaintiff, testifies as follows:

“Q. When you are a distance, as I understood your testimony, of 25 or 30 feet from the track?
“A. On the Shrewsbury Road, yes, sir.
“Q. You can stop your automobile and look down or up the tracks of the Illinois-Central for a distance of 900 or 1000 feet, is that right?
“A. Yes.
“Q. Then as you pass up towards the switch track that distance of 25 feet your vision of the southbound train is at a greater distance, is it not?
“A. As you come closer to the tracks?
“Q. Yes, it increased, does it not?
“A. Yes, sir.
“Q. And when you get on the industry or switch track, you have a full view of the southbound track for a distance of how long, or how far?
“A. Well, practically if you are on the southbound switch track very nigh to the other car cpming at most any distance.
“Q. You could see at a distance of two or three miles, could you not?
“A. Yes.
“Q. Well, Mr. Rouprich, if you are coming up that grade and stopped on the industry or switch track and looked towards the southbound Panama Limited train, you-could see the road for two or three miles? Could you not?
“A. At least two miles I think, yes.
“Q. Then there is a distance of about six or eight feet between the industry track and the southbound Panama Limited track, is there not, Mr. Rouprich?
“A. Yes.
“Q. And if you got your automobile in between the passing track and -the southbound Panama Limite^ track, you could look up the southbound Panama Limited track a distance of two or three miles and see a train coming, could you not?
“A. Yes, if you are on top of the track.
“Q. If you were in between the two trains?
“A. Yes.
“Q. If you were in between the industry track and the southbound Panama Limited track, you could see up the track a distance of some -two or three miles, could you not?
“A. Yes.
“Q. Now, it is a fact, is it not, that when you get up to a point 25 feet fróm the industry track that the houses on the west of the track are not in between you and the cattle shed or the unloading shed, is it?
“A. Well, that shed would be the barn.
“Q. But suppose you got up to a line even with the barn?
“A. Well, then you would be passed the barn, you would be on this side of the barn, and it would not interfere with you up to the unloading shed.
“Q. In other words, the barn is 25 feet away from the passing track?
“A. Yes, sir. ,
“Q. And if you get up to a point twenty-five feet away, the barn would be on the side of you?
“A. Yes, sir.
“Q. And you could look up the track; that is, when you get to the shed, then you could see that train for a distance of 1000 feet?
“A. Nine hundred to one thousand feet.”

It has been testified that the plaintiff’s husband was crossing the track leisurely, and that the train was running at a speed of thirty-five miles an hour; assuming that the plaintiff’s husband was advancing at the rate of three and a half miles an hour, then the train was traveling ten times faster than he was. It follows, therefore, that when the plaintiff’s husband reached the bottom of the incline or a distance of thirty-five feet from the track, the train must have been ten times further up the track or three hundred and fifty feet.

The evidence is overwhelming that át a distance of thirty-five feet from the track, plaintiff’s husband could have seen defendant’s cars. The nearer the track the plaintiff’s husband advanced, the nearer the train was to him. So that when the plaintiff’s husband reached the switch track, thirteen feet from the main track, the defendant’s train was only one hundred and thirty feet from him and in plain view. If plaintiff’s husband had been vigilant all along, or at least, at that point, he could have seen the oncoming train. If he did not see it it was because he did not look. If he did not look, the cause of the accident is his own fault.

But the plaintiff argues that the defendant should have seen the deceased and should have stopped the train to avoid the accident, invoking the rule of the last clear chance. But the plaintiff alleged that for all the reasons stated in her petition, the deceased could not see the train. If that be true, then for the same reasons, the defendant could not see the deceased.

But the plaintiff’s argument has no force. It is not the duty of a train to stop whenever the engineer sees a human being upon the track. The engineer has a right to presume that the human being will exercise the instinct of self-perservation and will move off of the 'track before the engine strikes him. Farrar vs. New Orleans & C. R. Co., 52 La. Ann. 417, 26 South, 995; Vanon vs. Louisiana Ry & Nav. Co., 143 La. 1085, 79 South. 869; Nolan vs. Illinois Central R. R. Co., 145 La. 487, 82 South. 590; Saitta vs. Yazoo & M. V. R. Co., 153 La. 1099, 97 South. 261; Schwartz vs. New Orleans & C. R. Co., 110 La. 534, 545, 34 South. 667; Ford vs. Tremont Lumber Co., 123 La. 742, 49 South. 492.

One is not guilty of negligence in not anticipating that another will -be negligent. Fitzpatrick vs. Letten, 123 La. 748, 49 South. 494.

The courts must also presume that the engineer will not wilfully run over a human being. In this case, notwithstanding the two railroad signs 115 feet and 20 feet from the track, notwithstanding the switch track, and the whistling of the engine 3000 feet away, and the ringing of the automatic railroad bell at the crossing itself, the deceased kept on his onward course. When the engineer saw, or could have seen, the deceased three hundred and fifty feet ahead of him about to cross his track, he gave the two whistles as a danger signal and put on the brakes, but it was then too late for him to come to a stop before he struck the deceased.' The evidence is that a train running at the rate of thirty-five miles an hour cannot be stopped inside of'600 feet. In this case the train was stopped within seven hundred feet of the place of the accident, which is an evidence that it was not running at an excessive speed.

This is not a parallel to McClanahan vs. V. S. & P. Ry., 111 La. 781, 35 South. 902, where the deceased was lying unconscious across the track. In that case, the engineer could and should have seen the deceased, and had no right to presume that he would move away from the track because he was unable to do so.

We think the reasons given by us in the case of Gibbons vs. New Orleans Terminal Company, No. 8738, affirmed by the Supreme Court, apply equally well to this case. In that case, we said:

“The law makes it the duty of chauffeurs upon approaching railroad tracks to stop, look and listen.
“It is not sufficient for a plaintiff to have looked and listened; it must have done so at the opportune time and in an efficient manner.
“The presumption of law juris et de jure is that a plaintiff saw a thing that he should have seen had he looked and that he failed to look at the proper time and in the proper manner if he did not see the things he should have seen by looking.
“No failure on the part of the railroad company to do its duty will excuse anyone from using the senses of sight and hearing upon approaching a railway crossing; and whenever the due use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence without any reference to the railroad’s failure to perform its duty.” Tucker vs. Ill. Cent. R. R., 141 La. 1096-1101, 76 South 212.
“But on the other hand, those who travel, on the common road, and are approaching a railroad track are bound to exercise due care and ordinary diligence to ascertain if a train is approaching, even if to their knowledge of the road’s schedule no train is due at that particular time.
“Before attempting to cross a railroad track they are bound to use 'their senses, to listen, and to look, in order to avoid any possible accident from an approaching train.
“Hence, it is negligence on the part of such a person to attempt to cross a railroad track which is several feet above the level of surrounding fields, on which there are no obstructions to view or to sound in broad daylight and to fail to look either way on the track or to listen to the noise made by an approaching train running at a great speed. In such a case, as his negligence has contributed to the accident, he cannot recover damages against the railroad company.” Brown vs. Rrd., 42 La. Ann. 350, 7 South. 682; Callery vs. Morgan’s La. & T. R. & S. S. Co., 139 La. 763, 72 South. 222; State vs. Ross, 144 La. 909, 81 South. 386; Gannon vs. New Orleans Ry. & Light Co., 154 La. 435, 97 South. 601; Consolidated Companies vs. Yazoo & M. V. R. Co., 155 La. 233, 99 South. 203; Young vs. Louisiana Western R. Co., 153 La. 129, 95 South. 511.
“Where plaintiff’s decedent, driving an automobile, approached defendant’s railroad crossing without looking for a train which would have been visible at least 40 to 50 feet away, and was struck, held: That he was grossly negligent, barring recovery.” Jeansonne vs. Rrd., 156 La. 237; 153 La. 129.

We have come to the conclusion that plaintiff was negligent and therefore he cannot recover.

“The true doctrine for which no citation of authority can be necessary is that plaintiff cannot recover for injuries caused by the negligence of defendant, if his own negligence was to some extent the proximate cause of the result complained of.”

Belle Alliance vs. Texas Rrd., 125 La. 777, 51 South. 846.

We have scrutinized the record with great care, and one of the judges of this court visited the locality, and we have failed to discover any negligence on the part of the defendant.

The judgment is therefore affirmed.


author: WESTERFIELD, J.

text:
    No. 10,184
    Orleans
    MARTIN F. TROWBRIDGE, Appellant, v. W. H. RACKLE AND MRS. J. C. SCHMID
    (November 30, 1925, Opinion and Decree)
    (December 14, 1925, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest—Automobiles—Par. 8.
    The point of contact, the nature of damage and the position of the automobiles after a collision is often an important factor in the determination of negligence vel non on the part of the drivers of the colliding automobiles.
    (Civil Code, Art 2315. Editor’s note.)
    Appeal from the First City Court of New Orleans, Section “C”, Hon. Val. J. Stentz, Judge.
    This is a suit to recover the cost of repairs to a Ford coupe made necessary by a collision with a Ford sedan, owned by one of the defendants, and operated at the time of the accident by the other. There was a reconventional demand by the defendants. Plaintiff’s suit was dismissed and so was the reconventional demand of the defendants.
    Plaintiff appealed.
    Judgment reversed and made one for plaintiff against defendants.
    Richard W. Leche, of New Orleans, attorney for plaintiff, appellant.
    R. J. Weinemann, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff brings this suit for $128.98, the cost of repairs to his Ford coupe, made necessary as the result of a collision with a Ford sedan, owned hy one of the defendants and operated at the time of the accident by the other. He alleges the accident to be wholly due to the fault of the defendant, the driver of the Ford sedan. Defendants deny all charges of negligence and impute all fault to plaintiff, claiming in reconvention the sum of $18.55 as repairs to the sedan made necessary by the accident.

The trial court dismissed both the main demand and the demand in reconvention. The plaintiff alone has appealed.

The accident occurred at the intersection of Fern and Elm Streets. Plaintiff in his coupe was proceeding along Fern Street from the direction of the river toward the lake. Defendant, Rackle, was driving the sedan down Elm Street in the direction of Broadway. In that situation plaintiff had the right of way since his car was on the right of defendant’s and defendant was approaching the intersection from the left. Ordinance No. 7490, C. C. S. Defendant admits that plaintiff had the right of way, but contends that that fact did not justify plaintiff in crossing the intersection because defendant had in a manner of speaking preempted it by having negotiated nearly three-fourths of the distance across before plaintiff entered the intersection, citing subsection (g) of sec. 7 of the Ordinance referred to, which reads as follows:

(g) “The right-of-way herein given shall not be construed to mean that vehicles may be driven through street intersections in a reckless manner or at a speed beyond control, nor that they may take advantage of such right-of-way to drive through intersections regardless of the rights of vehicles on intersecting streets. The right-of-way given applies only where two vehicles approaching intersecting streets arrive at the intersection at approximately the same time, and does not authorize the vehicle traveling on the right-of-way streets to disregard the rights of vehicles which have already entered the intersection from an intersecting street.”

The contention of defendant’s counsel in this regard is sound in law. The right of way given vehicles, when traversing certain streets is, as we have had occasion heretofore to observe, simply the right to precedence when other things are equal and in no sense justifies reckless disregard of traffic proceeding along other streets over which the right of way is conferred. In other words, if two cars running on intersecting streets approached the intersection at about the same time, one or the other must yield the right to proceed. We turn to the record to ascertain the facts.

The plaintiff who testified in his own behalf is corroborated by two disinterested witnesses, George W. Stern and a negro by the name of Capalon. Mr. Stern did not see the accident and his evidence is to the effect that after the accident when he appeared on the scene, plaintiff’s coupe was across the intersection) and lying on its side some twenty-five or thirty feet from the lake corner of Elm and Fern Streets on the upper banquette nearest Carrollton Avenue with its front pointing toward the river or the direction from which it had come; that defendant’s sedan was on the lake side of Fern Street nearest Broadway, on the banquette some 45 feet from the corner of Fern Street. The position of the cars after the accident is practically conceded to have been as this witness puts it. The witness, Capalon, claims ■ to have seen the accident. He confirms plaintiff in his statement that he had almost crossed the intersection when the defendant’s car entered it, and he also corroborates plaintiff as to the relative speed of the two cars, giving plaintiff credit for about fifteen and charging defendant with a speed of about twenty-five miles an hour.

In defendant’s behalf, two witnesses testify, Rackle, the defendant who was driving the car, and his wife, who was in the car with him at the time. Mrs. Rackle admits she was very much excited and does not claim to have seen the accident.

Plaintiff’s car was hit on the left rear wheel by defendant’s front wheel. This circumstance we think most eloquent in plaintiff’s behalf without regard to the other evidence which certainly preponderates in his favor. If defendant had preempted the crossing, it is improbable that plaintiff’s car would be struck in the rear and more improbable that it should have been struck by defendant’s left front wheel because in the position in which the cars approached each other, plaintiff’s car .was on defendant’s right and the point of impact should have been somewhere on defendant’s right side and somewhere in the front of plaintiff’s car.

We conclude that the accident was entirely due to the fault of the driver of defendant’s car and that plaintiff should recover. The quantum of damages sustained by plaintiff is admitted.

The judgment appealed from is reversed and it is now ordered that there be judgment in favor of Martin F. Trowbridge, plaintiff herein, and against W. H. Raekle and Mrs; J'. C. Schmid, defendants herein, in solido, in the full sum of $124.98 with costs of both courts.

Judgment affirmed.


text:
    No. 9124
    Orleans
    MARIANO P. DIAZ v. FRANK H. KILLEEN, Appellant
    (December 14, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 252, 256; Fraudulent Conveyances—Par. 117, 120.
    Plaintiff, seeking to vary the terms of a writtén contract, must allege and prove fraud or error.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    This is a suit to collect two promissory notes. The defense is partial failure of consideration.
    There was judgment for plaintiff as prayed for and defendant appealed.
    Judgment affirmed.
    Arthur Miller, of New Orleans, attorney for plaintiff, appellee.
    Hugh S. Suthon and Fred Zingle, Jr., of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff brings this suit upon two promissory notes each for the sum of $375.00, a total of $750.00, representing the credit portion of the purchase price of plaintiff’s interest in the “La Bonita Grocery Co.”, which was sold to defendant under the following agreement:

“To Whom It May Concern:
“This is to certify that we, the undersigned, have this day entered into an agreement to dissolve the partnership known as the ‘La Bonita Grocery Co.’, consisting of- Frank H. Killeen and Mariano P. Diaz.
It is hereby agreed that I, Mariano P. Diaz, have this day sold to Frank H. Killeen my interest in said partnership for the price and sum of one thousand and 00-100 ($1000.00) dollars, and I, Frank H. Killeen, hereby accept and purchase said interest at said stipulated price. .
“It is further agreed that I, Frank H. Killeen, hereby accept the said interest and further release Mariano P. Diaz from any liability on any outstanding bill which I hereby accept and acknowledge as my own personal obligation.
“The terms and conditions of this sale, which is an outright sale, is two hundred and fifty ($250.00) dollars cash, and two certain promissory notes, each for the sum of three hundred and seventy-five and 0-100 ($375.00) dollars, dated 90 days after date and 180 days after date, bearing interest at the rate of seven per cent.
“Witness our hands the day and date first above written.
“PRANK H. KILLEEN.
“MARIANO C. DIAZ.
“Witness:
“GEO. P. PLATT.
“W. LOUIS LEE.
“JOS. P. STINE.
“It is hereby further agreed that we, the undersigned, release each other from any personal claims which we have or may have arising from any and all transactions arising from said partnership, the one against the other.
“PRANK H. KILLEEN.
“MARIANO C. DIAZ.”

Defendant admits the purchase and execution of the notes but pleads partial failure of consideration because, it is alleged, plaintiff represented the bills receivable of the grocery store to be larger and the bills payable smaller than they actually were by several hundred dollars in each instance, which “constituted fraudulent misrepresentation by plaintiff which misled this defendant”.

There was judgment for plaintiff as prayed for and defendant has appealed.

We find no evidence whatever of fraud in the transaction culminating in the sale of the interest of plaintiff in the “La Bonita Grocery Co.”. The store was originally exclusively owned by defendant, who permitted plaintiff to acquire a one-half interest therein because defendant was engaged in other activities and required more time away from the grocery business. The partnership thus formed endured for several years, when defendant desired to get rid of plaintiff and resume the entire control of the business. The contracts of sale of plaintiff’s interest for $1000.00 was the result of negotiations looking to the dissolution of the partnership. The evidence indicates that there was some difficulty in arriving at a figure which plaintiff would accept and defendant willing aqd able to offer. Both plaintiff and defendant were represented by agents in the transaction chosen for their knowledge of accounts and of the grocery business. Some statements were made by plaintiff in the course of the negotiations concerning the bills receivable and bills payable, and it appears that the figures given were inaccurate, but there is no evidence that plaintiff undertook to do more than give his opinion that figures presented were correct. He did not guarantee nor warrant their accuracy. If it were otherwise the contract finally agreed upon would have reflected the understanding of the parties in this regard. As it is, there is no word of guarantee nor any reference to anything except terms of purchase; moreover, there is added the following in handwriting to the typewritten agreement:

“It is further agreed that I, Prank H. Killeen, hereby accept the interest of Mariano P. Diaz, and further release Diaz from any liability on any outstanding bill which I hereby accept and acknowledge as my own personal obligation.”

The fact that no guarantee of the amount of bills payable- or bills receivable was in contemplation of the parties is further shown by the manner in which the sum of $1000.00 agreed upon was arrived at. Five hundred was first offered by defendant and later increased to $750.00 and ultimately to $1000.00. Plaintiff originally demanded $1500.00 and yielded $500.00 of this amount to reach an agreement with defendant. This method of trading precludes the idea of a guarantee of figures discussed in the absence of any reference thereto in the Written agreement finally confected.

Having failed to establish fraud, the written contract between the parties must be considered as expressive of the terms of the agreement.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 9083
    Orleans
    JOHN T. GIBBONS v. LOUISVILLE AND NASHVILLE R. R. CO., Appellant
    (November 16, 1925, Opinion and Decree)
    (December 14, 1925, Rehearing Refused)

      (Syllabus by the Gourt.)

    1. Louisiana Digest—Carriers of Passengers and Goods—Par. 131.
    A claim based on an authorized agent’s written acknowledgment of liability to the extent of the full amount claimed against a carrier on whose line damage to a shipment has occurred is not a claim involving the unfairness or unreasonableness of a provision regarding an interstate tariff.
    2. Louisiana Digest—Prescription—Par. 173, 175.
    Written acknowledgment of indebtedness interrupts prescription.
    Appeal from the Civil District Court, Parish of Orleans, Division “E”. Hon. W. H. Byrnes, Judge.
    This is a suit for the collection of damages caused by loss or damage to goods in transit by the .railroad.
    There was judgment for plaintiff and defendant appealed.
    A plea of prescription was filed in the Court of Appeal.
    Judgment affirmed.
    McCloskey & Benedict and Michel M. Irwin, of New Orleans, attorneys for plaintiff, appellee.
    Denegre, Leovy & Chaffe and Edward L. Gladney, of New Orleans, attorneys for defendant, appellant.
   BELL, J.

This suit, filed July 17, 1922, is predicated upon the terse and complete averments found in plaintiff’s petition, and reading as follows:

“1. That your petitioner shipped in the month of May, 1920, from New Orleans to Jacksonville, Florida, a certain quantity of feed on the defendant’s railroad, and while in transit five hundred sacks thereof were damaged, amounting to a loss of $653.32, which was sustained by your petitioner.
“2. That your petitioner made timely reclamation therefor on said defendant and by a letter dated August 23, 1921, and subsequent letters thereto, the said defendant acknowledged and agreed to pay the claim aforesaid of your petitioner, but has so far failed to make payment.”

Exceptions of vagueness having been overruled by the trial court, defendant answered by admitting the shipment and the date thereof, and by pleading what counsel’ for appellant admits was, in effect, a general denial.

There was judgment for plaintiff for the full amount claimed, with legal interest thereon from date of shipment until paid. A plea of prescription, under Act 223 of 1914, has been filed in this court by defendant, as appellant.

Documentary evidence found in the record establishes the following indisputable facts:

On May 11, 1920, plaintiff shipped from New Orleans to Jacksonville, Florida, over defendant’s railroad, a car loaded to full capacity with 500 sacks of stock feed, consigned to his own order. Upon delivery of the shipment at Jacksonville, the feed was found to be overheated and damaged. Claim for loss in the sum of $653.32 was promptly presented. On August 23, 1921, after considerable correspondence, defendant’s claim agent wrote to parties handling the claim for account of plaintiff the following letter:

“I am not satisfied that your client was justified in loading this car, knowing that the commodity would damage regardless of the tariff provision. In my letter of August 13 I admitted that the tariff was irregular, but the factor of freight charges should not have been controlling as against the danger of loading the car when it was distinctly understood by the party loading that the damage would far exceed the excess freight. After reconsidering the matter, I am willing to voucher the claim as originally filed, but I will not consider the item of interest. If you will eliminate the $27.23, interest charge, voucher will be issued.”

Subsequent correspondence was had between the parties concerning interest charges, with the result that the claim was never adjusted. Suit was finally instituted on the date previously mentioned.

The questions presented on appeal are:

First: Should the judgment, which is plainly predicated on the acknowledgment of liability found in the foregoing letter prevail?

Second: Is the plea of prescription, based on Act 223 of 1914, well founded?

We are referred to innumerable federal decisions in support of the contention that the Interstate Commerce Commission is the only tribunal vested with power to prescribe tariff provisions or to recognize, by way of reparation, claims for loss or damage based on the unreasonableness or unfairness of tariff rates or regulations. The following excerpt from one of the letters written by defendant’s agent should be here noted:

“When this shipment moved, the tariff in effect required that the car be loaded to full carrying capacity. You, loaded the car accordingly, notwithstanding the fact that you were familiar with the damage which would be encountered by loading this commodity Without allowing sufficient room for ventilation. On complaint from shippers of grain products, a provision was made in the tariff whereby the actual weight would govern when loaded to within twenty-four inches of the top of car. This change in the tariff goes to show that the' original tariff was not in "harmony with the condition of loading the products susceptible to heat. For that reason I have been authorized to consider your claim.

It is argued that plaintiff’s claim was based upon the unreasonableness of the tariff provision in effect at the time of the shipment and which induced him to load the ear to full-space capacity, and that, even admitting the tariff provision as then existing to have been unreasonable, it was not legally within the power or authority of defendant’s agent to determine such a question or to adjust a claim upon such facts and conditions as have arisen in the instant case. The petition itself presents a cause of action based solely upon the written acknowledgment of liability expressed in the letters referred to and which were submitted by defendant’s authorized agent. If no authority existed in defendant or its agent to either approve or reject the claim, neither of them should have received it for adjustment, nor have asked for proof in support of the claim, but same should have been returned with notice that no authority existed to entertain claim. The claim arises under a contract of affreightment. Suit is not based on any rebate for illegal freight or other charges made by the carrier, but is an action ex contractu for damages suffered by an alleged breach of the contract and a subsequent acknowledgment of liability to the full amount claimed, exclusive of interest. The acknowledgment, as ultimately made, can in no manner be considered as a proposition of compromise. After careful consideration of the case— Southern Railway Company vs. Lewis & Adcock Company, 201 S. W. 131 (Tenn.)— cited with much reliance by plaintiff’s counsel, we are unable to find any application of the law or facts therein noted to those presented in the instant case.

Under Article 3520, R. C. C., the written acknowledgment of indebtedness, hearing date August 23, 1920, was clearly an interruption of the prescription now pleaded, if, as a matter of law, the state statute (Act 223 of 1914) can be held to apply to the interstate shipment here involved. Our views of this case require no expression of opinon on this point.

The judgment appealed from is correct.

It is therefore ordered that the judgment herein appealed from be and the same is hereby affirmed, at defendant’s cost, in both courts.


author: REYNOLDS, J. ODOM, J.

text:
    No. 2497
    Second Circuit
    D. J. SCOTT v. E. J. DEAS COMPANY, INC.
    (November 7, 1925, Opinion and Decree)
    (February 8, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1.' Louisiana Digest—Master and Servant —Par. 160 (a).
    Where the injured employee, suing under . the Workmen’s Compensation Act No. 20 of 1914, took all the treatment suggested by the physician attending him, '• but refused to undergo additional treat- •• ment in which he was to be placed in a jacket or plaster of paris cast and take .treatment from three to twelve months, which was the treatment of-1 ' fered by the defendant’s physician, the refusal to take this additional treatment was not so unreasonable as to deprive him of compensation under the Act.
    ON Al REHEARING
    2. Louisiana Digest—Master and Servant —Par. 160 (a).
    Ip a Workmen’s Compensation case under Act No. 20 of 1914, where the treat- ■ ment offered to the injured employee by the defendant would place the injured employee in a state of' immobility for a period of at least twelve months with no guarantee that he ' ' would be benefited thereby, the refusal . ■ of the injured employee to accept this treatment is not unreasonable and, therefore, will not debar him from recovery "under the Workmen’s Com- ■ " pensatibn -Act.
    '3. 'Louisiana Digest—Master and Servant" —Par. 160 (d).
    Section "8, Subsection 5, of the Workmen’s ■ Compensation - Act No. 20 of 1914, as amended by Act 216 of 1924, requires the employer to furnish medical or surgical aid to the amount of $250.00, but this does not require the injured employee to accept it.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo.- Hon. J. H. Stephens, Judge.
    This is a suit brought by an injured employee for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
    STATEMENT OF THE CASE
    This is a suit under the Workmen’s Compensation Act of Louisiana for compensation at the rate of $15.60 per week during disability not exceeding 400 weeks for an injury received by plaintiff in the small of the back and left hip claimed to have produced permanent total disability.
    Defendant denied liability, and during the course of the trial counsel for defendant tendered to plaintiff medical or surgical treatment by which he should be placed in a jacket or plaster of paris cast and take treatment from three to twelve months, offering to pay the medical bill and compensation during disability.
    On these issues the case was tried and there was judgment for plaintiff and defendants appealed.
   REYNOLDS, J.

OPINION

In the brief of defendants the only defense stressed is that plaintiff refused to take the medical or surgical treatment suggested by which he might be restored to permanent health. It is contended that his refusal to take such treatment is so unreasonable as to debar him from compensation during the period of his refusal.

The surgeons sworn as witnesses in the case agree that the treatment suggested by Doctor Thomas Ragan and tendered to plaintiff would be beneficial and without danger to his life or health, but none of the doctors could say with certainty that such treatment would result in a cure.

Doctor Ragan testified (Evidence, page 37):

“Q. Now, doctor, what have you to say with reference to the treatment or permanency of that condition, and as to how long it will take to cure it?
“A. Well, if that had been properly mobilized at first, I think that he would have been perfectly well and free from pain without deformity; in other words, the new position would have been firmly fixed and painless in six months. He would have no more trouble and (be) just as he was before.
“Q. At this time, what are the probabilities and possibilities of the plaintiff receiving treatment and recovering?
“A. Well, if he still has páin, I think it ought to be mobilized even yet, either having a satisfactory jacket or a plaster put on him, including both hips and that part of the spine, and he Would get well.
“Q. Now if that was done, doctor, properly, how long do you think it would take this man to get all right?
“A. Well, I think he would have—it would possibly have to be removed a time or two—but in three or four months time I do not think he would have any great pain.
“Q. Now, doctor, if that treatment was given, and this plaintiff took that treatment, how long do you think it would be until he would be able to do hard manual labor again?
“A. Well, he would have a stiff back tó a certain extent. There would be a mobility in certain movements, but he could get along pretty well.

(Page 51)

“Q. Would you guarantee, doctor, that if this man would follow your instructions, and take all the precaution that you give him and say that he will be just in as normal a condition after you have treated him for a year as he was the day before the accident occurred?
“A. I certainly would not give a guarantee of that kind.
“Q. Then it is all problematical with you, more or less, when you say that you can cure him?
“A. Well, the reasoning leads to- certain conclusions.

(Page 52)

“Q. Now, doctor, in all seriousness, you don’t think that this man with any kind of treatment will ever be in his normal condition, that he was before the accident occurred?
“A. Well, we do not think that that vertebrae will get back, but it will adjust itself, and, in fact, a man may be flatfooted apd after a while it will get to where it don’t hurt him to walk, and by use it will ultimately become where it Won’t pain him any more.

(Page 53)

“Q. Doctor, you really, then, in your opinion—going back again—you think that in a year that the man would have no defect?
“A. Well, I would not guarantee it, but at the same time I believe that the man would be well within a year, but I would not guarantee it.

(Page 55)

“Q. Doctor, would you advise putting this man in a plaster of parís cast?
“A. I think I would try it.' I am not a dogmatic about that, but X think it would be helpful, and it would be all right to try it.
“Q. Now would it not be very questionable with that method-—-I mean by the results probable and rather doubtful, since that injury occurred on the 13th of January and this is the 28th day of April, and no steps like that taken at an earlier date.?
“A. I think something has been lost in not having it tried at an earlier date, but I think I would try it—I think with immobility he would not suffer pain when you get a stable condition, and I would try it,
- “Q. Now this is about the most that you could promise about that?
“A. Well, I do not know anything better to. do just now.”

Doctor C. H. Gassity testified (Evidence, page 16):

“Q. Doctor, what do you think about the permanency of this condition such as you find, and such that is disclosed by the X-ray examination?
“A. My judgment is that the adjustment of the sacro iliac joint would probably require from eighteen months to two years to get well, if it gets well at all. I believe that the proper treatment would be to definitely locate where that injury is caused, and it is somewhat out of line and dislocated, which has not been reduced, and get it in its proper position and hold it there and we would get a recovery; where there is a fracture and it is placed back in position and held in position where they are not redislocated we get very good results, and I think that this stretching or injury here to the sacro iliac joint, that he should be put in a plaster of paris cast, and we might expect a cure in from about four to six months’ time; often a man walks around who is injured, and it is hard to get good results by those bones sliding against each other and producing inflammation, and adds to this dislocation and separation, and it inflames the joint and the bone surface there.
“Q. Well, doctor, what about the tilting of the vertebrae and as to the remedy for that?
“A. Well, I doubt now there is a remedy for it.

(Page 33)

“Q. Now, doctor, from the X-ray examination , and the fusion of the transverse process, of the fifth lumbar with the sacrum on the right, do you think there could be a normal adjustment made there of that fusion of the transverse process?
“A. There could not be without a major operation, as the surgeon would have to go in there and chisel that loose.
“Q.- Well, doctor, what per cent of mortality do you think this would be with an operation of that kind?
“A. What per cent?
“Q. Yes, what per cent of fatalities do you think there would be in operations of that kind going around the spinal column there?
“A. Well, the per cent of death rate in operations of that character in and around the cord in a great many cases it is not so high, but whether the man would get one hundred per cent function is a serious question. You know that operations are not always successful.
“Q. Doctor, with this fusion of the transverse process of the fifth lumbar with the sacrum on the right, what would likely be the permanency or not of that condition?
“A. Well, that will in all possibility be absolutely permanent.
“Q. Now what effect would you say that would have upon his ability to move and handle objects?
“A. Well, that would decrease the movability of the lower end of the spine and interfere with the free movement forwards, sideways or backwards.
“Q. Now, doctor, assuming that this man got his lick as explained to you a while ago—and has not done any work since—this was January 13, in January of this yéar, and that he has lost fifteen or twenty pounds in weight, what do you think of the probable outcome of his condition, his injury?
“A. Well, as regards' the fusion of those two bones, I think that this is a permanent injury, and as regards the sacro iliac separation, as I stated before, the permanency of that depends upon whether or not he was given proper treatment at the beginning; in other words, if put in a plaster of paris cast for as much as two months’ time, and still there is a separation there, then I would say he is permanently injured. if he had no such treatment as I have been talking about and, the sacro iliac joint is separated, I would say that the time for giving rational treatment is pretty well past.”

Prom this evidence it is clear that the doctors who testified in this case disagree as to the extent of the plaintiff’s injury. Doctor Cassity holds that to correct the injury would require a major operation; that the surgeon would have to get in there and chisel that loose. Doctor Ragan and Doctor Crain think plaintiff’s condition congenital and in no way caused by the accident. Under any condition the plaintiff, in order to receive the benefit of the treatment tendered by defendants, would have to undergo a serious treatment by which he would have to remain in a jacket or plaster of paris cast for from three to twelve months and that at best the treatment would be an experiment.

Plaintiff, as soon as he was hurt— January 13, 1925—was placed under the treatment of Doctor Williams, physician for the defendant, and took all the treatment suggested by him. We do not think plaintiff’s refusal to undergo the additional treatment tendered him was so unreasonable as to deprive him of the compensation he is entitled to under the evidence adduced on the trial.

Under the authority of Reeves vs. Dietz, et al., 1 La. App. 501.

For these reasons the judgment of the lower court is affirmed.

ON APPLICATION FOR' REHEARING

ODOM, J.

It is not disproved that the plaintiff in this case is totally, permanently disabled; but defendant proffered certain medical treatment to plaintiff which he refused, and defendant contends that it should not be required to pay compensation unless the treatment’ which is offered at its own expense fails to relieve the disability.

In the course of our former opinion we said:

“The surgeons sworn as witnesses in the case agree that the treatment suggested by Doctor Thomas Ragan and tendered to plaintiff would be beneficial and without danger to his life or health, but none of the doctors could say with certainty that such treatment would result in a cure.”

Counsel for defendant construe that to mean that we hold that the refusal of plaintiff to accept the treatment was unreasonable in view of the fact that physicians could not guarantee a cure.

We do not mean to so hold. Of course, physicians Will not guarantee a cure in any case. A reading of the decision will disclose that we did not base our holding on the ground, altogether that a cure was not guaranteed, for we said:

“Under any condition, the plaintiff, in order to receive the benefit of the treatment tendered by defendant, would have to undergo a serious treatment by which he would have to remain in a jacket or plaster of paris cast for from three to twelve months and that at best the treatment would be an experiment.”

The treatment suggested by defendant's physicians was to place the body in a plaster cast where it would have to remain for quite a long time.

Doctor Thomas Ragan, the physician who was selected by defendant to administer the treatment, said that while he would not guarantee a cure, yet

“I believe that the man would be well within a year.”

And he was asked:

“Doctor, would you advise putting this man in a plaster of paris cast?”

And he said:

“I think I would try it. I am not a dogmatic about that, but I think it would be helpful, and it would be all right to try it.”

And he again says:

“I think something has been lost in not having tried it at an earlier date, but I think I would try it—I think with immobility he would not suffer pain when you got a stable condition, and I would try it.”

And he was asked:

“Now, that is about the most that you could promise about that?”

And he said:

“Well, I do not know anything better to do just now.”

We fail to find in Doctor Ragan’s testimony that he holds out more than a slight ray of hope to plaintiff as a result of the treatment which he offers. In the final analysis he does not even venture an opinion that it will result beneficially. He says, in fact, that the treatment would do no harm; and he would try it, for he knows of nothing else to suggest. Doctor Ragan is the physician selected by defendant to administer the treatment.

Therefore, plaintiff, is confronted with the prospect of having his body lying in a state of immobility for a period of at least twelve months, according to this physician, with little trouble of being benefited.

Doctor A. P. Crain, another physician, said:

“I feel reasonably sure, without being positive, that the man would be materially benefited, if not cured.”

And it would take from six to twelve months.

In view of the fact that plaintiff would be subject to great inconvenience and, we feel reasonably sure, discomfort by the treatment, we cannot say that his refusal to accept it is unreasonable, especially in view of the fact that the physicians hold out so little hope of recovery.

It must be borne in mind that our statute provides that in case of injury the employee is entitled to compensation and does not make the payment thereof dependent upon the acceptance by the plaintiff of an operation or medical treatment proffered by the defendant. The statute requires the employer to furnish medical or surgical aid to the amount of $250.00, but it does not require the injured employee to accept it.

However, if continued disability is caused by the unreasonable refusal to accept medical or surgical aid when unaccompanied by danger to life or health or physical discomfort or great inconvenience, it may well be said that he should forego compensation.

But in this case, where the employee would be subjected to discomfort and great inconvenience of having his. body incased for a period of from six months to one year and of having to remain immobile all that time and with but slight hope held out for improvement or recovery, we cannot say that his refusal is unreasonable.

Every phase of cases of this kind has been discussed by the courts in this country and in England. It is needless to cite the cases here, but see: Bronson vs. Harris Ice Cream Co., 150 La. 455, 90 South. 759, and the authorities there cited.

Rehearing refused.


text:
    No. 9020
    Orleans
    HARRY REED, Appellant, v. DANIEL W. HOLDERITH
    (October 5, 1925, Opinion and Decree)
    (November 2, 1925, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest—Transaction or Compromise—Par 12.
    A compromise like any other contract may be set aside for error, fraud, or violence.
    2. Louisiana Digest—Transaction or Compromise—Par. 4.
    Courts must look with suspicion and disfavor upon a compromise effected between active agents of accident insurance companies with illiterate and untutored laborer for a lump sum bearing but a small proportion to the amount which the laborer would otherwise recover if he was entitled to a judgment.
    3. Louisiana Digest—Transaction or Compromise—Par. 14. 15.
    The evidence showing that the plaintiff signed a compromise in error, the same is not binding upon him.
    Appeal from Civil District Court, Division “B”, Hon. Fred. D. King, Judge.

      This is a suit for damages for physical injuries.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Alexis Brian, of New Orleans, attorney for plaintiff, appellant.
    P. M. Milner, of New Orleans, attorney for .defendant, appellee.
   OPINION

CLAIBORNE, J.

Plaintiff claims damages for physical injuries.

He alleges that on September 17, 1920, he was in the employ of Samuel H. Dickson & Co., unloading steel rails from a flat car on the river front;' that while so engaged, he was struck and injured by a truck belonging to and then operated in the business of Widow Frederick A. Holderith; that both bones of his left leg were broken in several places and crushed; that he was carried to the Charity Hospital where he remained under treatment for two months and three weeks; that while he was in the Charity Hospital he received compensation from his employer under the Employees’ Liability Act at the rate of $14.50 per week; that in the latter part of January, 1921, while plaintiff was still confined to his room on account of said injuries, the agent of the insurance company who had been bringing plaintiff the installments under the installment Act, represented to him that the doctors in charges of his case had stated that he would be well and able to go to work in about two months, and that the same insurance company would pay him $225 in settlement of all his claims under the Workmen’s Compensation Act; that acting under said representations and believing he was making a compromise with the same insurance company, he made his mark, upon information and belief, to an instrument of settlement of his claims against Mrs. Holderith; that he is unable to read or write and that he affixed his mark under error, induced by the representation aforesaid that he was signing a release in favor of Samuel H. Dickson and Co., his employer; that said settlement is' null and void as regards Mrs. Holderith by reason of the representations above stated, and also as against Samuel H. Dickson and Co. for having been without the sanction of the court in violation of law; that he has been damaged to the amount of $15,000; that Widow Holderith is dead leaving seven children and heirs. Plaintiff prays for judgment against" each of said heirs for his virile portion.

The defendant admitted that the plaintiff, while employed by Dickson & Co., was injured by a truck driven by an employee of Widow Holderith, in the manner stated by him; they admit that they are the heirs of Mrs. Holderith, but deny all the other allegations of the petition.

They aver “the truth and fact to be that the representatives of your respondent and likewise the representative of the Maryland Casualty Company and the New Amsterdam Casualty Company made a proposition of settlement of plaintiff’s claim against both Mrs. F. A. Holderith and Samuel H. Dickson and Co., employer of the plaintiff, and that after full explanation by the representatives of said two companies to-wit, Leonard W. Jones, representing the Maryland Casualty 'Company and J. Eberhardt, representing the New Amsterdam Company, and in the presence of the friend and ad-visor of said Harry Reed (plaintiff), to-wit, Alexander Brown said Harry Reed did on the 28th day of January 1921, agree to accept in compromise of his claims both against your respondent’s ancestor Mrs. F. A. Holderith and Samuel H. Dickson and Company, releasing all claims of every kind which he had against either parties, the sum of $510.38, $285.38 of which had already been paid to the petitioner by the New Amsterdam Casualty Company in the form of compensation insurance, and $225 of which was then and there paid to the said plaintiff, by voucher-check drawn by the said Leonard W. Jones for said Maryland Casualty Company in favor of Harry Reed, who endorsed same and his signature was 0. K’d. by Leonard W. Jones and J. Eberhardt; that the said Harry Reed, the plaintiff herein, retained said check until the 31st day of January 1921, when he cashed the same through the Hibernia Bank and Trust Company, New Orleans, as shown by endorsement on said cheek, which will be produced on the trial of this case”. The defendant pleaded further that the petition disclosed no cause of action in that on the face of the petition the plaintiff was guilty of gross contributory negligence and cannot recover”.

There was judgment in favor of the defendants “maintaining the compromise entered into by the said plaintiff with the said defendant’s ancestor Mrs. Holderith, on the 28th day of January 1921, as good and valid and binding on the said plaintiff”.

A rule for a new trial was dismissed and plaintiff appealed.

A compromise, like any other contract, can be set aside only on the ground of error, fraud, or violence C. C. 1819 (1813) 1823 (1817) 1824 (1818) 1828 (1822) 3079 (3046) 1847 (1841) 1848 (1842); Dugus vs. Town of Donaldsonville, 33 La. Ann. 670, 283; Adie vs. Narcisse Prudhomme and Wife, 16 La. Ann. 343; 12 C. J. 346, 348.

C. C. 1881 (1875). “Engagements made through error, violence, fraud, or menace are not absolutely null, but are voidable by the parties who have contracted under the influence of such error, fraud, violence or menace, or by representatives of such parties.” °

C. C. 1848 (1842). “Fraud like every other allegation, must be proved by him who alleges it, but it may be proved by simple presumption, or by legal presumptions, as well as by other evidence.”

“The maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence.”

“It is well settled however that fraud or want of good faith in the transaction may be shown by circumstantial evidence, as direct or positive evidence is rarely available in such cases.” 12 C. J. 359 S. 62.

C. C. 1849 (1843). “Some circumstances and acts attending particular contracts are by law declared to be conclusive; and other presumptive evidence of fraud.”

In the case of Davenport vs. Dubach, 112 La. 943, 36 South. 812, on p. 948, the court quoted the following language of Story’s Equity S. 236, 246:

“A contract with a person of weak mind or for an inadequate consideration furnishes the most vehement presumption of fraud.”

Although the burden of proof was upon the plaintiff to establish the error alleged by him in his compromise or settlement.

“A compromise made in good faith will not be set aside for mere inadequacy of consideration.” 12 C. J., p. 354 C. C. 3078.
“Relief will be afforded however when the inadequacy of consideration is so gross as to shock the moral sense, and especially so where the attending circumstances render it inequitable to allow the transaction to stand.” 12 C. J., p. 354; 112 La. 948.
“Courts must look with distrust and disfavor upon settlement or compromise effected between active and experienced agents of accident insurance companies with illiterate and untutored laborers, made destitute by their injuries, for a lump sum bearing but a small proportion to the amount which the laborer would recover if he was otherwise entitled to a jugment.” 138 N. W. 483.

This principle has been consecrated in Compensation Law 'by S. 8, of Section 8 'of the Act 247 of 1920, p. 473, which reads as follows:

“The amounts payable as compensation may be commuted to a lump settlement at any time by agreement of the parties if approved by the court as solely and clearly in the interest of the employee or his dependent; provided, that in making such lump sum settlement the payments due the employee or his dependent under this Act shall not be discounted at a rate greater than six per cent per annum. 151 La. 281.
“A violation oí this section shall subject the employer to the payment of a compensation at three times the rates fixed in this Act.”

Assuming that the weekly compensation of $14.50 paid to the plaintiff by his employer was correct in amount, it was due to him for at least one hundred weeks under Sec. 8 (e) p. 470 of the Compensation Act or $1450. There was no denial that the plaintiff was entitled to this compensation, .and thereform there was no foundation for any compromise of this part of his claim.

Assuming that the allegations of the plaintiff’s petition as to the injuries received by him are -correct the measure of his right of recovery was just about the same amount of $1450.

It follows that in securing plaintiff’s receipt in full for $225, as against his employer, he' remitted an assured amount of $1225 without any consideration whatsoever concerning which there .was no contest.

And in securing his receipt in full settlement as against the author of the injury he compromised on the basis of about 15 per cent. It is only in case of a suit, that the compensation insurer can claim participation in thé amount paid by the trial party or his insurer. The Maryland Company was under no obligation to reimburse the New Amsterdam Co. They were mistaken when they told plaintiff they must reimburse the compensation money.

The receipt signed by the plaintiff is dated January 28, 1921, and is in these words:

“In consideration of the payment of Five Hundred and ten 38-100 dollars to me in hand paid by Mrs. F. A. Holderith and Samuel H. Dickson and Co., I Harry Reed, do hereby release and forever discharge said Mrs. F. A. Holderith and Samuel H. Dickson and Co. from any and all actions, causes of actions, claims,' and demands for upon, or by - reason of any damage, loss or injury which heretofore have been or hereafter may be sustained by me in consequence of an accident occurring on or about September 17, 1920, in the City of New Orleans, Louisiana, when I was struck and damaged by the automobile of Mrs. F. A. Holderith and as a result of said accident sustained the fracture of my left leg and all internal and external injuries.”

This receipt bears the mark of Harry Reed, and the signature of Leonard W. Jones, Alexander Brown and J. E. Eberhardt.

The truth is, however, that the plaintiff, Reed, did not receive from Mrs. Holderith any money. He received a check from Leonard W. Jones, acting as the agent of the Maryland Casualty Company, the assurers of Mrs. Holderith. .Nor did he receive $510.38. He received the above check for $225. The difference $285.38 was paid by Jeffries Britten, Manager of said Maryland Company, in a check of said Company dated February 1, 1921, to the order of the New Amsterdam Casualty Company, to reimburse the compensation sums paid by the latter company to Reed.

The receipt reads:

“In consideration of the payment of $510.38 to me in hand paid by Mrs. F. A. Holderith and Samuel H. Dickson and Co., I, Harry Reed, do hereby release and forever discharge said Mrs. F. A. Holderith and Samuel H. Dickson and Co. from any and all actions, causes of action, claims and demands, etc.”

In testifying as to this receipt, Jacob Eberhardt the agent of the New Amsterdam Casualty Company, insurers of Samuel H. Dickson and Co., the employers of plaintiff, had his attention called to the words “and Samuel H. Dickson and Co.”, written twice by a different typewriter and paler ink, and was asked whether that had not been changed. He answered that it looked “like it was”. But he added, “he (Reed) signed the release just as it today * * * The day I signed my name it was a full receipt, just as it is.

“Q. Just as it is now?
“A. Yes, sir.”

But Leonard W. Jones the agent of the Maryland Casualty Co., testified as follows:

“Q. Do you recall whether the release as made was in a lighter typewriting; Samuel H. Dickson and Company was on the receipt at the time when it was signed?
“A. • It was not, because I didn’t have anything to do with Samuel H. Dickson and Company.”

He further testified that he did not know why the insertion of Samuel H. Dickson and Co. had been made after the receipt had been executed; the receipt had been under the control of Mr. Brinton, the manager of their office all the time, and he did not know of the change until the suit had been brought.

The words “Five hundred and ten 38/100” are written twice with the same typewriter as are the words “and Samuel H. Dickson and Co.”

They were also written after the receipt was signed. The check of $225 was given to Reed by Jones contemporaneously with the signing of the receipt. But the check for $285.38 was given by Brinton to the New Amsterdam Company after the amount due to it had been ascertained.

Plaintiff and two witnesses testified in his behalf.

They were separated.

Plaintiff swore that while he was in the Charity Hospital, a representative of Mrs. Holderith a tall man, came to him and offered to pay him $225, but he declined to accept it; then an agent of the compensation company came to pay him compensation; that he first refused to accept it until the agent told him that it would not affect his claim against Mrs. Holderith; afterwards the agent brought him $14.52 weekly at the hospital for two months and three weeks until he went to his home, then the same agent brought to his home another man whom he represented as the “boss” of the same insurance company, Mr. Jones. They told him they were making a settlement for the insurance company. The “boss” offered him $125 which he declined. The next time they came he offered him $225 just for the Liability Insurance people; he asked him if it made any difference about his getting his money from Mrs. Holderith and he said “no”, it “only kept the fellow from taking it there every week”. The “boss” never mentioned the name of Mrs. Holderith, but he said he was the “boss” of the Liability Insurance Company. Aleck Brown was present at the conversation, his wife was on the gallery; he wa's sitting there with his leg upon a box; they gave him a check for $225; he did not read it, he can neither read nor write, nor sign his name. When he took the check he did not know that he was giving up his claim against Mrs. Holderith, if he had known that, he would not have done it. The two men told him they were from the same insurance company only one was the “boss” and the other was the clerk, tie did not know the name of either. His wife collected the $225 check for him; he thought Mrs. Holderith would pay him; he did not know the name of the insurance company that paid him other than the Liability insurance. Mrs. Holderith was not mentioned.

Aleck Brown was present on the day Reed made the settlement with the insurance company; Reed requested him to be present. He told him that the gentleman who had been paying him compensation wanted him to accept $150 and said to Reed, “Well Harry, the doctor claimed at the hospital that you would be able to work in about two months, and if the doctor says that, he says, You ain’t going to get paid for more than two months; anyway you better take and save time and save different trips and it wouldn’t amount to that muck at $14.52 a week”. Mr. Eberhardt read from a book. “He says they has a right to ask him to have him settle that way and if he don’t take it, as that book tells you, they would not have any right to pay him any longer, than the doctor says”; then Jones offered him $225 instead of $150, and that was accepted, he did not read the receipt nor was it read in his presence; he is not a scholar, no particular insurance company was mentioned. He heard the Dixie mentioned (Dickson); did not hear the Maryland Casualty Company name; both claimed they represented the same insurance company; he can read and write a little; he did not read the receipt which he signed as a witness. Mr. Jones did not read it; he thought he was signing for $225; he did not know anything about $150; he is a laborer, round freight handler on the river front.

The wife of Harry Reed says she’ was there when some insurance agents came to Reed’s house to make a settlement with him for damages on the front gallery. Mr. Jones was there, he has been there twice before. The other gentleman who used to bring the checks was there • too, he told her husband to take $225 because the doctor, told him that he would be able to go to work in two months, and he was not going to get any more than that. He* didn’t tell him about Holderith or anything like that.

Mr. Eberhardt, for the' defense testified, he was 23 years old at the time of the trial; he was agent for the New Amsterdam Casualty Company, the insurer of Samuel H. Dickson and Co., plaintiff’s employers; he went two or three times with Jones at Reed’s house to make a settlement; Jones offered Reed $200 and then $225 which Reed accepted; he read to Reed that part of the compensation law, about:

“Where an injured party, when injured, a third party, had right of action against the third party as well as his employer; but the employer would have to enter suit with the injured party.”

He read no other part of the law. Brown seems to do all the talking, and he told Reed what to say. Brown claimed to be Secretary to Reed’s union, and Reed said he would go by anything Brown said. Brown and Reed retired to a room and on their return Reed said: “Give me a check for $225”. Reed made his mark on the release after it was read and explained to him.

Jones went to Reed’s house to make the compromise settlement; Jones said to him: “Let us go out, I want to try to settle this claim with Harry Reed.” The only part he had in the settlement of the case was to read to Reed the compensation law; he said to him “Harry I am going to show you, here is what you can get. You have a perfect right to sue Mrs. Holderith and we could come in as part of the suit and get our money back; I said that the first money that would come in would be for the- compensation paid you and, what is over would be his. I told him he could collect his compensation all along and then sue Mrs. Holderith and then we would be a party to that suit;” the only reason why he went with Jones every time was that he wanted to get their money back for Mr. De Fuentes who told him to go with him to see that when a settlement was made they got their compensation back.

Leonard W. Jones testified that he was 22 years of age at the time of the trial; that he was agent of the Maryland Casualty Co., the accident insurers of Mrs. Holderith; that he effected the settlement in behalf of Mrs. Holderith with Harry Reed. He identified the mark and all the signatures to the receipt mentioned above, also to the check for $225 on the Maryland Casualty Co. issued by himself, as adjuster, in favor of Harry Reed and the mark of Harry Reed on the back of the check and also the check of $285.38 to the New Amsterdam Casualty Co.. He called on Reed several times with reference to a compromise, of the claim against Mrs. Holderith; he told him on his first visit that he represented her, the owner of the truck, and that he “would pay a lump sum which was to release both the owner of the automobile and the company which was paying him compensation.

“In fact one of my arguments in the making of the settlement was that I had to explain the amount which the New Amsterdam Casualty Co. had paid to him in settlement, and he said to me that he was not very anxious to settle his claim because he didn’t know how he was hurt, and furthermore he could not read or write and didn’t want to get taken in. I asked him if he had a friend who would advise him. He said he knew a man who was secretary of some labor union. I left the place, and then returned to his house and found a negro man there when I came back, by the name of Aleck Brown, who said he was secretary of some labor union and could read a,nd write, but Harry (Reed) could not do either. I explained to Brown that I wanted to settle the claim, the amount I don’t remember now. Anyhow, Harry refused to accept it, and I raised my offer to $225, and Harry said the Insurance Company was rich and could pay more. I explained again that I had to reimburse the other company the compensation and I would have to pay something over $500. Harry and Brown left the gallery and went into the house, and after three or four minutes’ consultation Harry came out and agreed to accept $225 in cash. I read the release to him, and I explained to him that he was releasing Mrs. Holderith from all claims and also explained this to Brown.”
“Q. These two witnesses (Brown and Reed) have testified that the name of Holderith was not named in this settlement. Is that true or not?
“A. I believe it was.
“The Court: You either know whether it was or whether it was not?
“A. No answer.
“Did you mention the name of Holderith?
“A. The name had to be mentioned when I read the release.”

Harry Reed was asked if he understood what he was doing, and he said that he did. He explained to Harry Reed that he was representing Mrs. Holderith and not the New Amsterdam Casualty Co., which was paying his compensation; it was a cash settlement between Harry Reed and Mrs. Holderith, and with the understanding that “I was also to reimburse the New Amsterdam Casualty Co. for the amount which it had spent and it was to stop giving compensation. I was instructed by Mr. Brinton, Manager, to go to Reed’s house and adjust the loss”. The only provision of the Employers’ Liability Law which he read was the section which give to him the right to sue either one of these parties. He explained that he had a claim against both people. He did not read that portion of the law which prohibits the injured party from settling out of court his claim for compensation against his employer.

It remains with us to weigh this conflicting testimony and to decide upon' which side is the preponderance.

The testimony of the party defendant who would avail himself of the error and misrepresentations charged must not necessarily prevail, otherwise no contract could be set aside. But the testimony of the plaintiff must be given all the weight to which it is entitled.

1st The plaintiff charges that he was led to believe as a motive for his compromise that his doctor had said that in two months he would be able to go to work and that his compensation of $14.50 a week would then cease, and inasmuch as $225 was more than the future compensation he would receive in two months, he accepted the $225. Plaintiff’s wife, and Mr. Brown swear that such a statement was made to Reed. Neither Jones nor Eberhardt denied that such a statement had been made.

2nd The plaintiff charges also that he was induced to believe that he was releasing the Compensation Insurance Company and not Mrs. Holderith, and that the name of Mrs. Holderith was never mentioned during the negotiations. He swears to it. Brown swears there was no name, and no particular insurance company named. Reed’s wife swears that “he didn’t tell about Holderith or anything like that”.

The defendant relies in vain upon the receipt, to which Reed affixed his signature and to the check endorsed by Reed with his mark. Reed could neither read nor write therefore neither the receipt nor the check said anything to him. He did not read the receipt nor the check because he knew not how to read, and he swears they were not read to him. Neither did Brown read the receipt or the check; nor were they read to him. He swears to that.

Eberhardt and Jones both testify that the receipt was read and explained to Reed. But Eberhardt also swears that the name of “Samuel H. Dickson and Co.” was upon the receipt when signed; he was contradicted in that testimony by Jones and by the receipt itself. Jones and Eberhardt were both interested in effecting and maintaining the settlement sought by them each for the benefit of his respective company.

Eberhardt recovered the compensation money paid by his company and Jones obtained a release of his assured, Mrs. Holderith. But both Jones and Eberhardt knew, or should ' have known, as they read extracts of the law to Reed, that Section 8 of the Act provides that no settlement between the employer and his employee shall be binding unless approved by the court, who is constituted the mentor of the employee, a more reliable one than Brown the negro laborer.

It does not appear that any steps were taken to have the settlement approved by the court. Yet they induced the plaintiff to believe that he was making a binding settlement. Jones was the principál in effecting the settlement, but Eberhardt profited by it.

It might have happened that his company never would have recovered the compensation money but for the settlement.

Their testimony must be affected by the nature of the transaction.

We therefore come to the conclusion that the plaintiff signed the receipt in error and that the same is not binding on him. Lamkin vs. Rrd., 42 La. Ann. 997; Davenport vs. Dubach Lbr. Co., 112 La. 942, 36 South. 812. Our judgment can bind only the defendants herein as Samuel H. Dickson and Co. are not parties to this suit.

It is therefore ordered that this judgment appealed from be reversed and set aside, and that this case be remanded for a new trial according to law and the views herein-above expressed.