text:
    No. 2112.
    Second Circuit Appeal
    WILLIAM A. GRISHAM v. WRAY-DICKINSON CO., INC.
    (October 31, 1924, Opinion and Decree.)
    (January 19, 1925, Rehearing Refused.)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant ■ — Par. 160 (g).
    Payments under the Employers’ Liability Act No. 20 of 1914, as amended, are in the nature of admissions that the employee is entitled • to compensation under the act. This, under Section 31, is sufficient to interrupt prescription.
    2. Louisiana Digest — Master and Servant —Par. 159 (a).
    Where the injuries sustained while unloading a sedan body of an automobile and later while cranking an automobile were either caused entirely by these accidents or were superinduced thereby, the conclusion must be that the •accident caused directly or indirectly the injuries (hernia) complained of. This is true, notwithstanding the fact that, any possible dormant trouble caused by reason of adhesions having formed was greatly and suddenly, as well as violently, aggravated and accelerated by the said accident. The employee can recover under Section 8, Subsec. 1 (c) of Act 20 of 1914 as for partial disability.
    (Note: The present amendment is Act No. 216 of 1924. Editor’s note.)
    Appeal from the First District Court, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit under the Employers’ Liability Act to recover compensation.
    Judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Thomas W. Robertson of Shreveport, attorney for plaintiff and appellant.
    Barnette & Roberts, Thatcher & Webb, of Shreveport, attorneys for defendant and appellee.
   CROW, J.

Plaintiff, an automobile mechanic of several years’ experience, was employed by defendant in its garage and repair plant in the City of Shreveport on May 7, 1921. On some day in August, 1921, while performing services arising out of and in course of his said employment, plaintiff claims to have sustained an injury to his right side, which, in his testimony, he described substantially as follows.

' He and others were unloading a sedan body, weighing from 300 to 500 pounds, and while carrying it one of the other co-laborers stumbled and let the body down on the side, and plaintiff could not turn it loose and let it down, whereupon the body slipped down on him and hurt his side, making him so sick he had to go off and sit down. He said “felt like it tore something loose inside.” He either was sent by defendant, or went of his own accord to Drs. Willis, Knighton, Garrett and Willis, and was told by Dr. Willis, Jr., that he would have to be operated on as soon as he rested up. Later he returned and was operated on by Dr. Garrett, who said plaintiff had a small hernia and adhesion of the intestines in the region of the appendix.

After the above operation, plaintiff went back to work for defendant in about three months from the operation, and worked until he was again injured, in June, 1922, and again in August, 1922, by cranking a Ford car. The latter time plaintiff was “knocked out”, so to speak, and was carried in an unconscious condition to a sanitarium. Pie was then examined by Dr. Pirkle, who advised that an X-ray picture be made of plaintiff’s stomach and intestines. Accordingly, Dr. Barrow, an X-ray specialist, made an X-ray photo of plaintiff’s stomach and intestines which, according to Dr. Barrow’s interpretation, showed the stomach and small intestine normal, and showed in the large bowel (ascending colon) “a point of adhesion bound across the lower end of the cecum,” the “beginning of the large bowel”.

After the making of an interpretation of the X-ray photo by Dr. Barrow, plaintiff was operated on by Dr. Pirkle, who, in his testimony, says:

Q. “What condition did you find?”
A. “I found that he had been previously operated upon. Had a scar in his right side.
* * * I found an adhesion across the lower end of the large intestine — might say the upper end on the right side a little from the upper end or beginning, and I also found the omentum adherent to this spot.”
Q> “What — in the language of the ordinary layman — what do you mean by the omentum?”
A. “It is an apron or divide, something like that apron which hangs down over the intestines. It is really a protection or sheet of fat that protects the intestines and ordinarily it is attached to one side and one side is free and floats around at liberty; but in this particular case the lower end of this was adherent to this side of the old operation.”

Plaintiff was out for about three months from the latter operation, and then returned to defendant, where he was given light work, such as inspecting cars and seeing them properly assembled, until about March 20, (or 30,) 1923, when he was relieved of his job, and compensation which defendant had been paying him stopped. On June 18 1923, this suit was filed for compensation as for permanent total disability; that is, for compensation at’ the rate of ¡¡¡18.00 per week for and during a period of 400 weeks He also sued for $250.00 additional for medical and hospital expenses incurred by reason of said accidents and resulting injuries.

Plaintiff alleged, and defendant admitted in its answer, that defendant had paid plaintiff compensation in sums of $153.50 on May 22, 1922, and $35.64 on July 29, 1922.

Defendant’s answer is a general denial except certain admissions pertaining to plaintiff’s employment, the payments above indicated, etc. There was no special defense set up in the answer. In this Court defendant has filed a plea of prescription of one year in bar of plaintiff’s right of action.

The case was tried in the District Court, and thére was judgment rejecting the demands of plaintiff. Plaintiff has appealed to this Court.

OPINION

The plea of prescription cannot avail defendant, since • defendant admitted in its answer that it had made a payment to plaintiff on his claim for compensation on July 22, 1922, and this suit was filed on June 18, 1923, less than a year after the said payment was made. Section 31 of-Act 20 of 1914, provides that limitations under the Act shall not take effect until the expiration of one year from the time of making the last payment, the plea of prescription is therefore over-ruled.

We are at a loss to see how the Judge of the lower court rejected the demands of plaintiff entirely, since it is plain, from the evidence as a whole, that plaintiff’s injuries were caused either entirely by the accidents complaine.d of by, him and which happened while he was performing services arising out of and incidental to his employment in the course of his employer’s business, or else any dormant diseased condition he may have had was most certainly augmented and accelerated by those accidents, which were the direct and proximate cause of his disability.

The Supreme Court of this State, in the case of Behan vs. John B. Honor Co., Ltd., reported in the 143 La. 348, 78 South. 589, and in Craft vs. Gulf Lbr. Co., 151 La. 281, 91 South. 736, among other things, said:

“The fact that an employee, injured in performing services arising out of or incidental to his employment in the course of his employer’s occupation, was already afflicted with a dormant disease that might some day have produced physical disability, is no reason. why the employee should not be allowed compensation, under the employer’s Liability Statute, for the injury which, added to the disease, superinduced physical disability.”

And again, in the case of Hicks vs. Meridian Lbr. Co., 152 La. 975, 94 South. 903, the Supreme Court of this state said:

“Where the accident is the immediate cause of death, it is immaterial under the workmen’s Compensation Act, whether or not the employee be or be not peculiarly subject to have such accident befall him, or to suffer therefrom more than another differently situated; the sole question being whether the accident was the immediate cause of the injury.” Pox vs. United Chemical & Organic Products Co., 147 La. 865, 86 South. 311.

In the case of Hicks vs. Meridian Lbr. Co., 152 La. 975, 94 South. 903, cited supra, a case very similar to the one at bar, and which was followed by this court recently in the case of Tullier vs. Phaneuf, No. 1971 on the docket of said later court, the Supreme Court, inter alia, said:

“(1) It is quite immaterial for the purposes of this case whether the alleged strain brought on the aneurism, or merely hastened the inevitable rupture; for this court would allow compensation in either ease.”
“In Craft vs. Lumber Co., 151 La. 281, 285, 91 South. 736, 737, we allowed compensation although we were strongly persuaded from the evidence that at the time the plaintiff received the blow in the lower part of the abdomen, he had a hernia in process of development, which was quickened and greatly accelerated by the blow he received.” .

Apparently, about the only defense relied on, and one, by the way, which was not pleaded in the answer, by defendant, is that plaintiff had had an operation on November 9, 1920, at the Northeast Mississippi Sanitarium at Booneville, Miss., for acute appendictis, and that adhesions had formed on the intestines as a result of said operation, and that plaintiff’s disability was caused by reason of said adhesions.

The facts on that point, as disclosed by the record, succinctly stated, are:

Plaintiff had worked for several years as an automobile mechanic for a concern in Tupelo, Miss., where he is shown to have borne a good reputation for truth and honesty, and for being a robust and healthy man (excepting, of course, the attack of appendicitis, aforesaid); that on November 9, 1920, he was operated on for acute appendicitis by Dr. ~W. H. Sutherland, Superintendent of the Northeast Hospital at Boone-ville, Miss., who testified that plaintiff had had the acute attack of appendicitis twenty four hours, and had had several mild attacks before, and that, “on removal (of the appendix) there was no pus formation, no drain was put in and he healed by first intention.” He also testified that “there was no suppuration,” and that “he was closed without drain and recovered without any trouble.” He further testified that plaintiff was examined by him on November 19, 1920, and that he saw plaintiff after the operation, and the latter never made any complaint and returned to his usual work.

Plaintiff testified and is corroborated in his testimony by several of his former neighbors in Mississippi, that he had been in good health and working regularly till operated on by Dr. Sutherland on November 9, 1920, a short time after which he went back to work apparently a well man and continued to do the same sort of work as an automobile mechanic that he had done before the said operation and without experiencing any difficulty, and without any seeming ill effects from the appendicitis and the operation by Dr. Sutherland. He continued that work in Mississippi till about May 1st, 1921, when he came to Shreveport and was employed by defendant on May 7th, 1921. He worked for defendant as automobile mechanic without difficulty and without showing any signs of weakness or disability on account of his said operation by Dr. Sutherland. This condition of his continued till some time in August, 1922, when he was hurt by the sedan body falling on him. He then had to be operated on for hernia and adhesions, so says Dr. Garrett, who performed the operation on him. There is nothing to show that plaintiff had ever suffered from hernia in any form until he sustained the injuries complained of when the body of the sedan fell upon him and he was hurt.

Even taking Dr. Garrett’s testimony alone, which is seemingly as favorable to defendant as any testimony in the record, and plaintiff is bound to recover compensation of defendant; for, in answer to a' question propounded by plaintiff’s counsel on cross-examination, in hypothetical form based on the proven facts in the case, Dr. Garrett, (speaking of plaintiff’s condition when he operated on him) said:

“To be sure, automobile had something to do with it.”

After apparently recovering from the latter operation, plaintiff was given work by defendant, but was again hurt in June, 1922, which neccesitated another’ operation. Dr. Willis, Jr., testified that his firm operated on plaintiff for the breaking up of adhesions formed from cranking a Ford car, “and hernia, both together.”

Plaintiff was then put back to light work and was hurt again while cranking a Ford car, while discharging his duties as mechanic for plaintiff. The last injury was sustained in August, 1'922. He was then operated on by Dr. Pirkle for adhesions to the omentum and cecum as outlined above. Dr. Pirkle says in his testimony:

“My opinion at the time of the operation was that this adhesion being fixed, whenever he got himself in an undue position, that he pulled this adhesive band and it pulled on his intestines and made these symptoms that he complained of, which was weakness and sick stomach and ‘knocked clear out,’ so to speak. It was my opinion that this adhesive band was the cause of that. That was my conclusion of that breaking feature.”

The only testimony 'in the record that plaintiff ever suffered from a pus or ruptured appendix, is that given by Dr. Willis, Jr., and his associate, Dr. Garrett, who saj; that when plaintiff first came to them, or was sent to them by defendant, he told them that he had been operated on for such condition. Plaintiff denies making those statements most positively, and it is possible that the doctors were thinking of some other of the many patients they are called upon to operate • on. Or even if plaintiff did say so, it is likely he '(being uneducated) did not understand what the doctors meant when questioning in regard to the history of his case. Anyway, Dr. Sutherland testifies positively, and apparently without hesitation or interest, that there was no ruptured or pus appendix and no suppuration, and no drain when he operated on plaintiff. It was a complete and uneventful recovery, so it appears, from Dr. Sutherland and other witnesses for plaintiff.

There is little or no doubt in our minds that the injuries plaintiff sustained were either caused entirely by the accidents complained of, or were superinduced thereby, and that any possible dormant trouble caused by reasons of adhesions having formed, was greatly and suddenly, as well as violently, aggravated and accelerated by the said accidents. The hernia which he had immediately on the happening of his first accident, evidently resulted from the sedan falling on him. The doctors all seem to agree that a sudden or violent strain or trauma may cause hernia. There is no evidence that he ever' had the slightest indication of any hernia until the said accident. No other reasonable conclusion can be reached than that the- accident caused, directly or indirectly, the hernia complained of.

After the last accident and operation in August, 1922, plaintiff was given light work by defendant till March 20th, (or 30th) 1923, when he asked for a settlement on his claim for compensation, when defendant fire.d him, since which time he has not been able to do much. He says he has been earning from five or six dollars a week to eighteen, or twenty dollars a week. Plaintiff was paid $153.50 on May 22, 1922, and $34.64 on July 29, 1922, by defendant, “Payments under the Employers’ Liability Act are,” so says the Supreme Court in the case of Johnson vs. Vernon Parish Lbr. Co., 151 La. 63, "In the nature of admissions that the employee is entitled to compensation under the Act.”

Plaintiff lost three months from total disability after one injury, and five weeks after another, which makes a total of at least eighteen weeks during which he was totally disabled. For that, he should receive compensation at the rate of 60 per centum of his wages, say, $16.00 a week for eighteen weeks; and since that time we find he has been partially disabled to do work of a reasonable character, for which he should receive compensation at the rate of 60 per centum of the difference between the amount of his weekly wages at the time of the last accident ($35.00) and the amount of wages he was and is capable or receiving subsequent to the last accident. Plaintiff says he can earn from $5.00 or $6.00 to $18.00 or $20.00 a week. Averaging those amounts, we get approximately $12.00 a week he is able to earn since the accident, and since being laid off by defendant. Subtracting $12.00 from $35.00 we’get $23.00, sixty per centum of which is $13.80.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the District Court be, and it is hereby; reversed and set aside; and it is now ordered, adjudged and decreed that plain tiff have and recover of defendant, compensation at the rate of $16.00 per week beginning January 15, 1922, and continuing for a period of eighteen weeks, and further compensation as for partial disability at the rate of $13.80 per week, beginning August 15, 1922, and continuing for and during the period of such disability, not to exceed 300 weeks; less credits of $153.50 paid May 22,’ 1922, and $35.64, paid July 29, 1922, the said weekly payments to bear interest at the rate of five per cent per annum from maturity thereof till paid, defendant to pay all costs of both courts.


source: Caselaw Access Project

author: PORTER, J.

license: Public Domain

text:
    No. 2130.
    Second Circuit Appeal
    MISS ADELAIDE KELLER v. JOS. REID GAS ENGINE COMPANY, APPELLANT.
    (October 31, 1924, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4, 4 (a), 4 (d), 6 (a).
    Where an auto on a public road exceeding the speed limit swerves to the left and collides with another automobile being driven carefully on right side, the auto driver of the car being driven fast and on the left side is negligent and he and his employer are liable for the resultant damage.
    2. Louisiana Digest — Automobiles —- Par. 6 (a).
    The employer is liable for the negligent act of his employee while driving an automobile in the course of his employment.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the First District Court, Parish of Caddo, Hon. B. P. Mills, Judge.
    This is a damage suit for personal injuries.
    Judgment for the plaintiff and defendant appealed.
    Judgment affirmed.
    Miss Carrie Keller and Wallace, Lyons & Peters, all of Shreveport, attorneys for plaintiff and appellee.
    Bullock & Warren of Shreveport, attorneys for defendant and appellant. )
   PORTER, J.

This is one of a series of three suits which grew out of a collision between a Franklin Touring Car and a Dodge Roadster, on the Shreveport-Mooringsport road, on the 22nd day of June, 1923.

The Dodge car was owned by the defendant. Company, and was being driven at.the time by one of its employees. The Franklin car was owned by Mis.s Carrie Keller, and was being driven by the plaintiff, a sister of the said Miss Carrie Keller, and in it were the plaintiff’s said sister, her mother, Mrs. E. H. Keller, and a young lady guest,' Miss Bernice Carnathan. All of the occupants of the Franklin car suffered more or less physical injuries, while the two persons in the Dodge car escaped injury.

The defendant Company is a foreign corporation engaged in manufacturing and selling gas engines and their accessories. It conducts a branch business in Shreveport, with a general manager in charge of the territory of Louisiana and Arkansas. The three persons who were in the Franklin car have each instituted suit for damages, and these suits were consolidated for the purpose of taking testimony alone, but all of them were submitted on one argument.

The petitions in all of the cases are quite lengthy, and we do not deem it necessary to even summarize the allegations of them. It is sufficient to say that they all set forth a cause of action. We shall, in the course of this opinion, refer to the essential facts set out, both in the petitions and in the answers in the three suits.

The trial in the District Court resulted in a judgment for the plaintiff in this case. (No. 2130) for $500.00, and legal interest, and the defendant has appealed. The /plaintiff has answered the appeal, and prayed that the amount awarded be increased to the sum claimed by her — $750.00.

The accident occurred at a point on the highway leading from Shreveport to Moor.ingsport, and about ten miles from Shreveport. The surface of this road is asphalt, and it is eighteen feet wide, with a margin of perhaps two feet on each side of sand and gravel. There is a wide ditch on the right hand side of the road, (going from Shreveport) which is nearly three feet deep. The general direction of the road is from the east to the west, and at the point of the accident, it was straight for a long distance both ways.

The contention of the plaintiff is that she was driving the Franklin car west at a moderate speed — about fifteen miles an hour — that she was driving on the right hand side of the road as near to the ditch as it was safe to drive; that she saw the Dodge car ‘a considerable distance before they met; that it was running in or about the center of the road at a speed of what she judged to be thirty miles an hour; (the ordinance of the Police Jury limits the speed to 25 miles) that just as the two cars got nearly opposite to each other, the Dodge car swerved suddenly into the car she was driving, striking it near the middle, throwing it into the air, and turning it over on its side near the edge of the ditch. The contentions of the occupants of the Dodge car, who were Mr. Slonaker, the defendant’s general manager, and Miss McDuffie, an employee in the office, are, on the other hand, that Miss McDuffie was driving at a reasonable and lawful rate of speed, and on the right hand side of the road, as she should have been, and that when she got opposite the other car, it suddenly swerved to the left, and struck 'the car ■ she was driving.

In short, the statements of the plaintiff’s witnesses make out a case of negligence against the driver of the defendant’s car, while defendant’s witnesses as to the accident, make out a case of negligence by the driver of plaintiff’s car.

We do not think there is any basis for the charge of contributory negligence on the part of the plaintiff, which is contained in defendant’s answer. The case is one of simple negligence, which was the proximate and sole cause of the accident, by one or the other of the two drivers of the cars, and the case must be determined in favor of the side upon which the evidence preponderates.

At this point, it is proper to consider a question of law raised in defendant’s answer, which is to the effect that when the accident occurred, its employees, Slonaker and Miss McDuffie, were not acting for it, were performing no duty connected with their employment, and were, in fact, acting beyond and outside of the scope of their employment. The facts in reference to this defense, are as follows:

It appears that the defendant Company had not very long prior to the accident sold to the Gulf Refining Company a steel foundating for one of its gas engines, which had been shipped and delivered to the purchaser at Smackover, and subsequently sent by the purchaser to Moorings-port to be used as a foundation for one of its engines at that place. Mr. Slonaker had heard that the foundation had been installed at Mooringsport, and he desired to see it with the engine upon it. It further appears that this steel foundation was the first one that had been sold in this territory, and was, in a sense, an experiment.

On the day of the accident, Mr. Slonaker, early in the afternoon, left the office in Company with Miss McDuffie, in a Dodge car belonging to the Company and used by him habitually in the Company’s business, for Mooringsport for the purpose above stated. When they got to Moorings-port they found that the steel foundation had not been installed, but was in the warehouse of the Gulf Refining Company. They then went for a ride on the lake, at the invitation of some official of the Refining Company, after which they started on their return home. It is a fact that the steel foundation had been fully paid for by its, purchaser, and that as between its purchaser and the" seller, the matter was a complete one. It is therefore contended by the defendant’s counsel that, so far as the defendant was concerned, it had no further interest in or connection with the transaction, and that the visit of Mr. Slonaker and Miss McDuffie to Mooringsport for the purpose of seeing the appliance was prompted by mere curiosity on their part, or at least, by some motive which had nothing to do with defendant’s business.

According to this restricted view of the facts, the defense is, at least, a plausible one, but this is not a full statement of the facts.

Miss McDuffie had been in the employ of the defendant for seven years. She was not a mere stenographer in the office, hut her duties were much broader. In defendant’s answer, she is referred to as the assistant to Mr. Slonaker.

Mr. W. L. Dickinson had been for six years the predecessor of Mr. Slonaker, and had secured the order from the Gulf Refining Company for the steel foundation in question, which had been delivered, however, after he severed his connection with defendant, and was succeeded by Mr. Slonaker. Speaking of his duties as general manager, he said it was to his interest, as well as the interest of the Company, to know that the machinery (sold by the Company) was properly installed, “and I always was interested as a satisfied customer is the best thing in the world and we took a great interest when we sold a man an engine to know that it was installed properly, and started going right.”

In reference to Miss McDuffie’s duties, he was asked if she was a salesman, and replied: “She is a pretty good one, better than I was. She helped me lots.” He said further that while she did not go out on the road, she helped him-a great deal; that he thought that customers were more pleased to see her come around than they were to see him; that she was very familiar with the business, and very valuable to the Company.

He testifies that the day after the accident, he met Mr. Slonaker, and asked him about it, and that in discussing the matter, Mr. Slonaker told him: “that they had gone to Mooringsport just as stated before to show Miss McDuffie this steel foundation, tie was asked: Q. “You understood from Mr. Slonaker that he had taken her up to Mooringsport or near Moorings-port in order that she might ' see this foundation?” A. “Yes, sir, so that she would be familiar with what she' was talking about when customers showed up and were asking questions. Something that I always tried to do, and she was very well equipped and would get this information.”

In addition to this, it is shown that Mr.Slonaker visited the Sanitarium shortly after the injured persons had been carried there and that in a conversation with Dr. Abramson and Miss Carrie Keller, he made the following statement, as testified to by Dr. Abramson and Miss Keller:

“A. Mr. Slonaker said that he was sorry that the accident occurred, and said to me he thought if Miss Keller’s car was running faster, maybe it would have not occurred, and said that he had gone to Mooringsport with a young lady that worked here (Shreveport) in the office, and wanted to show her some work that was being done up there (Mooringsport) by his company, and he went up there (Mooringsport) and showed it to her, in order that she might know better what she was talking about when she was talking to customers about it, and coming on back for experience, she was driving the car.”

Mr. Slonaker, presumably, heard the above statements. It is certain that defendant’s counsel heard them, and they must have realized how inportant they were, and yet, Mr. Slonaker, who testified at length, did not d.eny them or even refer to them, and hence, they must be accepted as showing his purpose in taking miss Mc-Duffie to Mooringsport.

The many authorities from text writers and Courts referred to-by the able counsel for the defendant state the law on the point involved correctly, but they are not applicable.

It must be remembered that Mr. Slonaker was the general manager of the defendant in this territory, and as such, he was vested with a very wide discretion as to the scope of his duties. And if the trip to Moorings-port was for the purpose of enabling him and Miss McDuffie, or either of them, to become more familiar with the steel foundation so that they could the more intelligently discuss its merits with prospective purchasers, it is clear, we think, that it bore a direct relation to the duties of the manager, and was calculated to further the interests of the employer.

As to the question of who was to blame for the collision, we shall not attempt to discuss in detail the voluminous and conflicting testimony of the several witnesses. It is enough 'to say that the District Judge, who heard the witnesses, decided the questions of fact in favor of the contentions of the plaintiff. But we shall go further and. sáy that after a most.careful study of the testimony, we are of the opinion that a. clear preponderance of it support^ the conclusion reached by the learned trial Judge.

The witnesses who described the accident were: Miss Carrie Keller, owner of the Franklin car, Miss Adelaide Keller, who was driving it, and Miss Addington, all for the plaintiff, and Mr. Slonaker and Miss McDuffie, who occupied the.Dodge car, for the defendant.

The three first named witnesses fully support the contention that the Dodge car, as it met the Franklin, swerved suddenly to the left and struck the Franklin. Miss Addington was not related to, and had no connection with, any of the parties to the suit. She and her mother had been following the Dodge car for a mile or more, and was, say 150 yards behind it, when it struck the Franklin.

But more than this, the physical facts with reference to the condition of the two cars after the accident, show that the left front' wheel of the Dodge car struck the Franklin a little in front of the middle, and practically wrecked the rear end, or, at least, the right side of the rear end of it.

The testimony of Hillier, foreman of the garage which repaired the Dodge car, states that "the left front wheel was crushed— “completely gone, the rim was twisted and the spokeá were knocked out.”

If it were necessary for us to say, from the testimony, just why the accident occurred, we should say that Miss McDuffie was driving in or near the center of the road at a pretty- rapid speed; that for some unexplained reason, she did not see the Franklin ear until just an instant before the collision, and that when she did see it shé" \vas startled, lost her nerve, and, intending to turn to the right, turned to the left instead, and struck the other car. We get this impression largely froip Miss Mc-Duffie’s account of the collision.

She was asked: “What caused the collision?” Ans. “I was hit." Q. “What first apprised you that there would be a collision?” Ans. “It was when the car hit.” Q. “What did the other car do?” Ans. “I don’t know.” Q. “Was it coming straight to you, or in what direction?” Ans. “I was on the right side of the road, the other car was coming straight forward.” Q. “When it struck you, why did it strike you?” Ans. “Well, now, I was not watching the other car (as) much as I was watching my own car.”

We do not wish to be understood, in anything we have said in regard to this young lady’s testimony, as intimating that she purposely misstated any fact. She doubtless related the incidents according to her recollection, which as to the matters immediately preceding the accident, does not appear to be very clear, influenced, unconsciously, by her connection with the defendant Company.

The question which has given us more concern than any other.— and this applies to all of the suits by the parties who were injured — is the question of the amount awarded. The counsel for defendant urge with much earnestness, that the amount is excessive. The physical injuries inflicted on plaintiff were very slight. Her arm, she says, was wrenched, and she was bruised on other portions of the body. She was asked: “Did you suffer any pain?” Ans. “Some when I would move it especially.” (Referring, we presume, to her arm.) Q. “It did not require medical treatment, did it?” Ans. “I stated it was not much; it hurt, and in lifting my mother, it hurt' me a good deal, in fact, I could hardly lift her. It hurt about the body and here” (witness indicating with hand). The plaintiff did not go to bed, and we infer that the pain she speaks of was not severe nor long continued. Certainly, she is not entitled to anything like $500.00 on the score of physical injury or pain. The District Judge did not hand down any written opinion and we have no means of knowing the basis of the award, but we infer that it was principally for mental anguish.

The allegations of her petition on this point and they are supported by the testimony — are, substantially, as follows:

That her mother was thrown out of the car to the ground, falling partly on the pavement and partly on the dirt par.t of the road; that the full extent of the injuries to her mother was not and could not be determined at that time; that Miss Carnathan, plaintiff’s guest, was thrown through the windshield on to the road; that her throat and face were badly lacerated, causing her to bleed profusely. That all of the occupants were and are now extremely nervous as a result of the accident. That her mother and Miss Carnathan were^ picked up from the road and placed in a car with plaintiff’s sister,' (Miss Carrie Keller), that was coming to Shreveport, to be taken to a sanitarium. That there was no room in said car for plaintiff, and she was forced to remain, wet with blood of Miss Carnathan, until another car could pick her up and bring her to Shreveport; that it was more than two hours before she could reach the Sanitarium and learn the extent of her mother’s injuries, and whether or not Miss Carnathan had bled to death before reaching the Sanitarium, and that for the pain and mental anguish suffered by plaintiff, for these reasons, she is entitled to recover $750.00.

That mental anguish is a proper element of damages cannot be questioned. In a case recently decided by the Supreme Court, (Brooks vs. Interurban Motor Transportation Co., Current Southern Reporter of July 12th, 1924) the court, in speaking of awards for damages in this class of cases, said:

“That question always involves more or-less embarrassment, as its solution rests in the sound discussion of the Judges and juries. The only safe rule is to abide as much as possible by precedents.”

And it cites a number of cases for the purpose of establishing as far as possible, some kind of basis for such awards. In the case quoted from, it reduced a judgment for personal injuries from $1500.00 to $500.00, but allowed an item of $500.00 for pain and suffering to stand.

The fact which differentiates that case from this is that in the former case, the physical pain suffered was mueh great- . er than that endured by the plaintiff here, while the plaintiff here suffered much more intense mental pain or anguish because of the fright over the condition of her mother and her young lady friend and guest, and the fear that the latter would bleed to death from the wound in her neck.

While we are inclined to think, that $500.00 is rather more tlian is authorized by the general trend of cases of this character, particularly in view of the absence of evidence as to the character and extent of the wound on the throat of the young lady, (neither she nor the physician who treated her testified) and hence our inability to determine whether the chance of her death before assistance could be secured was reasonably apparent, we are not able to say that it is clearly excessive. Under such circumstances, it is, we think, the safer rule to defer to the judgment of the trial court.

The judgment is therefore affirmed.


text:
    No. 2132.
    Second Circuit Appeal.
    MISS CARRIE KELLER v. JOS. REID GAS ENGINE COMPANY.
    (October 31, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana- Digest — Appeal—Par. 625.
    The judgment of the trial judge as to the amount of damages sustained in an automobile accident is affirmed.
    (Civil Code, Art. 2315. Editor's note.)
    Appeal from the First District Court, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a damage suit, the result of an automobile accident.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Wallace, Lyons & Peters, of Shreveport, attorneys for plaintiff and appellee.
    Bullock & Warren, of Shreveport, attorneys for defendant and appellant.
   PORTER, J.

This is one of the series of three suits which grew out of a collision between two automobiles on the Shreveport-Mooringsport Road, on June 22, 1924. The law and the facts applicable to all of the cases were fully considered in the opinion in the case of Miss Adelaide Keller, No. 2130, this day handed down, and what was said in our opinion in that case, in so far as it is applicable, is adopted in this case, and in case either party to this suit applies to the Supreme Court for a writ of review, the Cleric of this Court is directed to annex to said application a certified copy of our opinion in said case -No. 2130.

The only matter which it is necessary to consider in this case is the amount of damages which -the plaintiff claims.

The plaintiff is the owner of the Franklin car referred to in No. 2130, and in addition to a claim for physical injuries, she sues for damages to her car, depreciation in its value, and loss of its use, as follows:

$500.00, for personal injuries.
873.00, estimated cost of repairs to ear.
500.00, depreciation to car.
23.50, going after and bringing car to garage.
14.00,storage and delivery of car to residence.
500.00, for loss of use of car.

She recovered judgment for $1,696.50, made up of the following items:

$500.00, for personal injuries.
873.00, estimated cost of repairs to car.
300.00, depreciation to car.
23.50, going after and bringing car to garage.

The lower court rejected as in case of non-suit the following items: $14.00, storage bill, and $500.00 for the loss of the use of the car.

She has answered the appeal taken by defendant, and prays for an increase of the judgment up to the amount' originally claimed.

In her petition, she claimed the difference between the present value of what she alleges is the demolished car, and its value before the accident, but, in the alternative, she claimed the amount which would be necessary to fully repair - the car- — $873.00. The claim for the difference in the value of the car at the time of the accident, and its value afterwards, appears to havé been abandoned. In addition, her petition claims one or two small items which were disallowed, but the above itemized statements are taken from the brief of her counsel, and they represent the difference between tlie sum awarded and that which she now claims in her answer to the appeal.

OPINION.

As to the item for personal injury, which, according to the petition, includes mental anguish, as well as physical injury and pain the plaintiff endured, an ordeal which was calculated to produce considerably greater mental anguish than did her sister, Miss Adelaide Keller, the plaintiff in suit No. 2130. She, too, was greatly frightened about the condition of her mother, and her anxiety on this account was not relieved until some time after she reached the Sanitarium and until the physician, after attending to Miss Carnathan, could make, an examination, and thus determine the extent of her mother’s injuries. In addition to this, all of the parties present appeared to feel that Miss Carnathan would bleed to death before assistance could be had, and plaintiff was compelled to ride on the seat between her mother and the. injured young lady, both leaning upon her, and she testifies that the young lady “covered” her with blood. Besides, she was, perhaps, more painfully injured than was her sister. We, therefore, approve this item.

The cost of the repair of the car is fully sustained by the testimony. There is in the record an itemized bill showing the amount necessary for this purpose, made by the company which handles Franklin cars in Shreveport. Indeed, defendant’s counsel do not seeih to question the amount of this item, if their client is liable for it. The testimony of competent witnesses shows, what may be said to be a matter of common knowledge, that no matter how completely a badly wrecked car is repaired, its subsequent value is greatly depreciated. Plaintiff claimed $500.00 on this, score, and was allowed $300.00. This estimate is fully warranted by the testimony, which,, of course, is largely a matter .of guesswork, but which is the best evidence available. The plaintiff is clearly entitled to the item of $23.00 for bringing the car from- 'the scene of the accident — a distance of ten miles or more — to the garage- of the Roby Motors Co., which charged, and was paid, that sum.

We approve the ruling of the District Judge in rejecting the item of $500.00 for the loss of the use of the car. Conceding that a claim for the deprivation of the use of a pleasure car, such as this one' was, could be recovered, the most that "could be allowed would be so much per day. for the time reasonably necessary to make re; pairs, and as there is no testimony whatever on this point, we are powerless to fix an arbitrary amount.

On the whole, we think the judgment is correct, and it is accordingly affirmed..


author: PORTER. J. PORTER, J. CROW, J.

text:
    No. 1834.
    Second Circuit Appeal.
    ELSTON MALEBY v. GULF REFINING CO. of LA.
    (November 6, 1924, Opinion and Decree on Rehearing)
    (January 12, 1925, Rehearing Denied)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160 (j).
    Where employee’s skull was injured' causing fits which ceased after an operation was performed, plaintiff has not proven permanent total disability to recover compensation under Employers’ Liability Act No. 20 of 1914 Section 8, Subsec. 1 (b).
    2. Louisiana Digest — Master and Servant —Par. 160 (e).
    Where there is a judgment rejecting plaintiff’s demands, the appellate court may remand the case for further evidence on the question of ability of plaintiff to perform Work of a reasonable character if it believes this necessary to further the ends of justice. Section 20 of Act No. 20 of 1914, the Employers’ Liability Act, making it possible to take more evidence after one year has no application to this case because there was no judgment granting compensation.
    (O.pinion after remand, reversing former opinion):
    3. Louisiana Digest — Master and Servan —Par. 159 (a).
    The fact that a man forces himself to do work is not the test of disability after an accident where his working shortens his life out of all proportion. In this case a fracture of the skull caused a condition evidenced by an abnormally high blood pressure and other symptoms which enables the employee to recover under Section 8, Subsee. 1 (b), of Employers’ Liability Act No. 20 of 1914, for permanent total disability.
    Appeal from the First District Court, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit -under the Employers’ Liability Act No. 20 of 1914 by an employee for compensation.
    Judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    On a rehearing, judgment reversed.
    Huey P. Long and Philip H. Mecom of Shreveport, attorneys for plaintiff and appellant.
    J. S. Atkinson and F. E. Greer of Shreveport, attorneys for defendent and appellee.
   PORTER. J.

This is a suit under the Workmen’s Compensation Act, in which the plaintiff claims compensation at the rate of $18.00 per week for 400 weeks, less twelve weekly payments which he has received from the defendant Company, for certain physical injuries which he received while engaged in working for said Company.

The ldwer Court rejected plaintiff’s demands, and he has- appealed.

The sole question presented is one of fact, that - is to say, whether the disability from which plaintiff claims to be suffering is traceable to the accident of which he was admittedly the victim. He was working as a “roustabout” around an oil well belonging to the Company, when a rod hook fell and struck him upon the top of his head. He alleges, in his petition, that the blow fractured his skull, and otherwise inflicted serious damage on, in, and about his head, and his nervous and physical system in general.

He testified that about four months after the accident, he began to have epileptic fits, that he would shake all over, froth at the mouth, and become unconscious. He says he began to have these fits about four months after the accident, and that he continued to work until he had the fits.

Defendant’s time keeper testifies that plaintiff lost only two days after the accident. He says it occurred on July 10th, 1921. (The petition alleges June 10th as the date of the accident.)

The records showing plaintiff’s time, which are undisputed, show that from, say three days after the accident, he put in practically full time; seven days a week of ten hours — -until and including the middle of February, 1922, or seven months. And he is credited with two days in March, and eleven in May.

In the latter part of February, plaintiff was sent by the defendant Company to the Highland Sanitarium for examination and treatment. An X-ray picture was made of his skull by Dr. Rutledge, a specialist in radiology, which failed to disclose any fracture, or anything which could account for the fits or other symptoms of which plaintiff complained.

Dr. Hendricks, Chief Surgeon of the above institution, thought that, perhaps, there might be some adhesion which the X-ray would not show, and decided upon an operation. He lifted a portion of the bone of the skull where the blow had been received, and found no adhesion, and is quite positive that there is no injury to the skull or brain.

Just before the trial, counsel for the Company asked the Court, by motion filed in the record, to appoint three disinterested physicians to examine into the plaintiff’s condition, .for the purpose of determining whether plaintiff is subject to epileptic fits, or other disorders, due to the accident which he received. The Court appointed Dr. J. C. Willis, a leading physician and surgeon of Shreveport', and he reported the result of his examination as follows:

“Hon. T. F. Bell, Judge,
Caddo Parish District Court,
Shreveport, La. •
Dear Sir:
.On .examination of Mr. E. B. Maleby, at your request, we find that following an injury to his head which he sustained some time ago and an operation on same for the purpose of relieving the pain and pronounced nervous symptoms (fits) which were supposed to have been caused by the injury, he has been relieved to the extent that the so-called fits have discontinued, but that he still complains of nervousness and extreme sensitiveness of the scalp, the condition being technically known as hyperthesiá. This seems to exist to such an extent that brushing or even handling the hair causes marked discomfort, and some pain. This condition, we do not consider serious ordinarily, but we recognize the fact that it is very annoying.
I also find that he has a blood pressure (taken on two occasions three days apart) of 155 systolic, and 100 to 105 diastolic. The normal pressure in a man of his age should be 120 systolic and 90 diastolic. Evidently, he has a hypertension from some cause for which I am unable to account, unless it is in some way connected with the accident. This condition, if permament, we consider serious. . However, this patient presents the appearance of being a neurotic, or in other words, he shows evidence of being of an unstable nervous type.
Whether these conditions existed previous to the injury, or whether they were entirely caused by the injury, I am unable to say, as I am not familiar with either his past history or condition. However, I am unable to connect them with any present general systemic condition, for his vital organs, such as heart, kidneys and lungs, are in good condition, and his blood examination (Wassernian) shows negative, and with the exceptions noted above, his general condition is good.
Respectfully submitted,
JCW-B J. C. Willis, M. D.”

Dr. Willis was called -as a witness by the plaintiff. The trend of his testimony is along the lines of his report to the Judge. It bears the impress of absolute frankness and impartiality. He evidently realized that he was an advisor of the Court on matters which experts alone are competent to testify. It is not necessary to discuss his testimony, or that of any of the other physicians who testified in the case.

The sum of it is, that it is not possible, without further knowledge of the facts of the case, including the physical history of plaintiff’s antecedents, to state with any degree of certainty,, that the condition of plaintiff is attributable to the accident. It is possible that it is and possible that it is not.

He states that plaintiff’s high blood pressure may be the result of several causes— hardening of the arteries, and toxemia, among them — one of the causes of the latter being, as we understand, faulty elimination. He was asked if he found anything that might produce the present condition of the plaintiff which existed before the accident, and answered: “No, not that I could positively state.”

Dr. G. H. Cassity testified for the plaintiff, and his testimony is distinctly favorable to him.

The trouble about it is the general tenor of his testimony is opposed to that of the other three physicians who testified, including Dr. Willis, and that it appears to be based upon the assumption that plaintiff’s skull was fractured, or that there were adhesions • between the bone and the brain, when the only persons who were competent to give evidence as to the condition of the skull swear positively that no such conditions exist. We refer to Dr. Hendricks, who operated on plaintiff; and to Dr. Rutledge, the radiologist. The latter says: “On lifting the osteopathic flap and examining the inner plate of the skull, it showed absolutely no injury. The dura was perfectly normal, and no adhesions.” He says he found nothing in his examination that would cause epilepsy. He says that intestinal toxemia, or focal infection are common causes of epilepsy.

Plaintiff admits that the fits ceased after the operation. He said at the time of the trial that his head was sore; that he could not stand to get hot; that when he got hot, it hurt him all over ; that he could not do any work. It is somewhat significant that the statement as to having fits depends solely upon his own testimony. It is not corroborated by any other witness.

It is impossible from the testimony in the record for any court to say with any reasonable degree of certainty that the condition of which plaintiff complains is due to the accident.

The rule that plaintiff must establish his case applies to this class of cases, as well as to others. See Haddad vs. Truck Co., 150 La. 327, 90 South. 666, and authorities there cited.

The judgment appealed from is affirmed.

ON APPLICATION TO REMAND

PORTER, J.

In this case, the District Court rejected plaintiff’s demands. On appeal, this Court affirmed that judgment. An application for a rehearing was granted, and the case is pending on that order. The contention of the plaintiff is that as a result of an accident — the falling of a piece of iron upon his head — his skull was fractured, and that he was totally permanently disabled to do any work of a reasonable character, and he prayed for compensation at the rate of $18.00 per week for four hundred weeks.

The contention of the defendant Company was that plaintiff had recovered from the effects of the accident, and that the illness from which he complained, and which occurred several months after the accident, had no connection with it.

The rehearing was granted in June, 1923.

In the brief in support of the application, plaintiff’s counsel says:

“We have seen this poor plaintiff, destitute and helpless, making every effort possible to secure some kind of employment which would require no kind' of exertion. His utter physical capacity is not disputed.”

Since the order granting a rehearing was issued, the defendant Company has filed in this Court a motion to remand the case for the purpose of taking additional testimony on the question of plaintiff’s ability to do work of a reasonable character.

The motion, which is duly verified, alleges that the facts upon which it is based have come to the knowledge of defendant since the rehearing was granted, and there is attached to the motion an affidavit by one J. Curtis Parker, which is to the following effect:

That he is employed by the Woodley Petroleum Company, as time keeper; that he has knowledge of the duties and character of employment of all of the employees of said Copany, and of the wages or salaries paid them; that he knows E. Maleby has been in the employment of said Company since the 17th day of July, 1923, as pusher of a roustabout gang in the Arkansas oil fields, during which time he has been' paid a salary of $180.00 per month, which is in excess of the wages generally paid roustabouts by other Companies, and that during said time of employment, no amount has been deducted from the monthly salary of said Maleby on account of loss of time from illness or other physical incapacity.

One of the allegations of the motion is that from information received from reliable persons, the plaintiff began work in the Arkansas oil fields soon after the trial of this case in the District Court, and has been working- there regularly ever since, at wages equal to or in excess of the wages he received from the defendant at the time he was injured.

We think that, under the showing made, the case ought to be remanded in justice to both parties — the plaintiff and the defendant.

It is therefore ordered and decreed that this case be, and it is hereby, remanded to the Honorable the First Judicial District Court, for the Parish of Caddo, Louisiana, with directions to re-open the note of eviience for the taking of such legal testimony on the question of plaintiff’s ability to perform work of a reasonable character, since the trial of the cause in said Court, as both parties shall desire to offer, after which the entire record will be returned to this Court.

ON MOTION TO SET ASIDE ORDER REMANDING THE CASE TO THE DISTRICT COURT. ,

The motion is denied. This Court will, however, on its own motion, recast its order as follows:

It is ordered that the former judgment of this Court} affirming the judgment of granting a rehearing in the case, be, and they are hereby set aside.

It is now ordered and decreed that this case be, and it is hereby remanded to the District Court of the First Judicial District, in and for the Parish of Caddo, with instructions to re-open the note of evidence for the reception of legal evidence work of reasonable character, as counsel for both parties shall see fit to offer, and that the case there be further proceeded with according to law.

The Court will hereafter' file written reasons for denying the motion to set aside its order remanding the case.

ON APPLICATION TO SET ASIDE MOTION TO REMAND.

After considering the arguments and briefs of counsel for -both parties on the motion to set aside our order remanding the case to the lower Court for the purpose therein stated, we are convinced that we pursued the proper course in granting said order.

The District Court, after hearing the evidence in the case, rejected plaintiff’s demand. This Court, in an opinion handed down on June 2nd, 1923, affirmed that judgment. It subsequently granted, on the application of plaintiff’s counsel, a rehearing. Defendant’s counsel then filed a motion to remand the case to the District Court for the purpose of taking additional testimony on the question of plaintiff’s abil ity to do work of a reasonable character and, attached to the motion, is an affidavit which purports to’ be signed by J. Curtis' Parker, time keeper of the Woodley Petroleum Company, to the effect that the plain tiff has been in the employ of said Company since the' 17th .of July, 1923, (the affidavit is dated Nov, 13, 1923) as a pusher of a roustabout gang in the Arkansas oil fields, during which time he has been paid a salary of $180.00 per month. (The same wages that plaintiff was earning at the time of the injury.)

This Court thereupon issued its order, remanding the case to the lower Court for the purpose above stated.

Subsequently, plaintiff’s counsel filed a motion to set aside the remanding order, upon two grounds, viz: (1) That the Court was without authority to issue said order and cited in support of that contention the case of Deniels vs. Shreveport Producing & Refining Co., 151 La. 800, 92 South 341; (2) That he had never been notified of the application to remand by defendant’s counsel or the affidavit aforesaid, and he annexed to his motion an affidavit of J. R. Porten, Secretary & Treasurer of the Woodley Petroleum Co., to the effect that the plaintiff had been employed by said Company, “for a short time”, but after reasonable trial; was found unable to do the work to which he was assigned with proper efficiency, and was therefore discharged.

1. The position taken by plaintiff’s counsel that we were without legal right to remand the case is grounded upon the decision by the Supreme Court in the case of Daniels vs. Refining Co., above referred to. In our opinion, that decision has no application to the question here presented, for these reasons: In that case, the plaintiff had recovered a judgment in the District Court awarding him compensation for certain injuries, and the defendant Company appealed. Pending the appeal, the defendant filed a motion, supported by affidavit, to have the case remanded “for the purpose of showing that plaintiff’s wage earning capacity had increased since the trial”. The Court denied the motion on the ground that about eleven months had elapsed since the judgment of the lower Court was rendered, and that defendant would, within another month, have the right, under the Compensation law, to a revision on the judgment. And it found that the record was such as to enable it to render a final judgment in the case. We do not feel, for the reasons not necessary to mention, that we could, consciously, render a final judgment in this case.

But more than this; the opinion under discussion was based upon Section 20 of the Compensation Act, and that Section provides, in substance, “that a judgment of compensation may be modified”, by agreement between the parties, with the approval of the Court, or “said judgment of Compensation” may be reviewed on the. application of either party, within a year after its rendition, and that the amount oi compensation allowed may be increased or decreased, according as the facts warrant.

There is no “judgment of Compensation” in this - case. On the contrary, the District Court rejected plaintiff’s demand entirely, and, hence, there is no judgment to be reviewed in accordance with .the section referred to.

We note, in passing, however, that the Supreme Court in two cases—Bourgeois vs. Construction Co., 149 La. 669, 90 South. 17 and Pye vs. Electric Co., 147 La. 537, 85 South 232, did just what we have done in this case, except that in both of those cases the plaintiffs had recovered judg ments in the District Court.

2. The second contention of plaintiff’s counsel need not be discussed, because even if there was error in our first order, for the reason that counsel was not notified, that error has been cured by the opportunity given counsel to argue the motion, both orally and by briefs, of which opportunity he has fully availed himself.

The motion to set aside our motion remanding the case is therefore denied. See decree;

OPINION ON REHEARING AFTER REMAND

CROW, J.

On first hearing of this case by this court the judgment of the District Court, rejecting plaintiff’s demands was affirmed.' An application for a rehearing was filed by plaintiff and later a rehearing was granted. After the order granting the rehearing had been made by this court counsel for defendant filed here a motion setting up that, in the event the judgment of the District Court, on rehearing, should not’ be affirmed, then the case should be remanded to the lower court to enable defendant to supply evidence to show that plaintiff’s condition was normal and that he had fully recovered from the’ injury he had received and the effect of the consequent operation performed on his skull by Dr. Hendricks, as described in our former opinion herein.

After due consideration of the said motion to remand, this court, in the following order or decree, remanded the case to the District Court:

“It is, therefore, ordered and decreeded that this case be and.it is hereby remanded to the Honorable The First Judicial District Court for the Parish of Caddo, Louisiana, with directions to re-open the note of evidence for the taking of such legal testimony on the question of plaintiff’s ability to perform work of reasonable character, since the trial of the cause in said court as both parties shall desire to offer, after which the entire record will be returned .to this court.”

In compliance with and conformity to the foregoing order, the case was again taken up in the District Court on April 1, 1924, and evidence was .submitted by both parties. After the case was. again submitted to the said District Court, his Honor, Judge T. F Bell, in a written opinion handed down by him, said:

“This is a compensation case. When first tried in this Court, judgment was rendered rejecting the demands of plaintiff. We did this on the ground that there was not sufficient evidence in the record to ‘connect the injury of plaintiff with his’ condition at the time of the trial. We never had any doubt of plaintiff’s condition; that it was such as to prevent him from doing reasonable work. The case was presented to the Court of Appeal when the judgment of the lower court was affirmed. A rehearing was granted and later the case remanded to take evidence on the restricted question of plaintiff’s ability to work. This evidence has been taken, and it devolves upon us to again render judgment. This evidence shows that plaintiff, since the time the first judgment was rendered has done considerable work, but our opinion as to his present condition is no different from what it was after the first trial, and that is, although he has worked, he is in no physical condition to work, and should not work. He has worked during that time because he had to in order to live, but we are of the opinion that every day he does work shortens his chance of life out of all proportion.
Since this judgment was first rendered the Supreme ' Court has rendered opinions in cases which cannot be reconciled, in our opinion, with our judgment in this case. But the Constitution of 1921 has passed jurisdiction on this class of cases in the Court of Appeals, and . we do not know what view that Court will take in a case, such as this, where mo other reasonable cause of plaintiff’s condition can be given except the accident which befelj. him.
If the case were being presented to us as a new case we would be inclined to follow what seems to us to be. the present jurisprudence of the Sureme Court, and find for plaintiff, but in view of the condition • of this case, we thing it the better policy to reinstate our former judgment, and let the case again go to the Court of Appeals, and let that Court formulate its own policy for the future guidance of this Court.
For the foregoing reasons there should be judgment rejecting the demands of plaintiff and it 'is so ordered.
T. F. Bell,
District Judge”

The said learned and able Judge frankly says: “We never had any doubt of plaintiff’s . condition; that it was such as to prevent him from doing reasonable work”. He also says: “Since this judgment was first tendered the Supreme Court has rendered opinions in cases which cannot be reconciled, in our opinion with our judgment in this case. But the Constitution of 1921 has vested jurisdiction over this class of cases in the Court of Appeals, and we do not know what view that Court -will take in a case, such as this, where no other reasonable cause of plaintiff’s condition can be given except the accident which befell him”. He further states: “If this case were being presented to us as a new case we would be inclined to follow what seems to us to be the present jurisprudence of the Supreme Court, and find for plaintiff; but in view of the condition of this case, we think it the better policy to reinstate our former judgment, and let the case again go to the Court of Appeals, and let that Court formulate its own policy for the future guidance of this District Court.” He accordingly, again rejected the demands of plaintiff.

The record has been again sent to this Court in accordance with our order remanding the case to the District Court, and is before us for final determination of the issues involved therein.

At the time the case was last argued in this court. Counsel for defendant, appellee, filed another motion to have the case again remanded, in the event we should not affirm the judgment of the lower court. The motion sets up, substantially, the same sort of alleged facts as did the first motion to remand, which was sustained by this court, viz: That defendant had learned that plaintiff had been doing work of a reasonable character since the last trial and that he did not quit work until about five days before the last trial. The motion is based mainly on hearsay statements and ex parte letters and affidavits. Since the case was submitted the last time to this court, plaintiff has filed counter affidavtis of himself and ■ his brother-in-law, Mac Spoon, with whom plaintiff had worked, or attempted to work, in which it is said “that in attempting to do hard work, or any kind of work he (plaintiff) has undergone such continuous and serious pain and suffering that he has constantly endangered his life, and finally on last Wednesday (preceding November 1st, 1924) he (plaintiff) hardly escaped dying as ,a result of such exertion; that he (plaintiff) has been advised by his physician that he cannot work or labor; that he cannot comb his head and at present his condition is such that he cannot even wear a hat on his head; that affiant (plaintiff) cannot now do any work without serious probability of dying. This he (plaintiff) knows not only of his own experience, but from medical advice he has been given”.

While we think the motion of defendant, appellee, to again remand this case is made in good faith, we also think that it is based on the fact that plaintiff had worked or tried to work, some since the last trial, and before that time, when, as said by the trial judge, “he is in no physical condition to work, and should not work. He has worked during that time because he had to in order to live, but we are of the opinion that every day he does work he shortens his chance of life out of all proportion.” It is his ability to perform services of a reasonable character that is made the test and not the fact that, out of sympathy of his employer or his fellow workmen, he does some work. Nor is the fact that he forces himself to do some work, out of dire necessity, made the test in compensation cases, particularly when to do so “shortens his life out of all proportion.” (See Hulo vs. City of New Iberia, 153 La. 284, 95 South. 719; Norwood vs. Lake Bisteneau Oil Co., 145 La. 823, 83 South. 25.

Too, there must be an end to a case of this character sometime. This is certainly true when, under the law, judgments in compensation cases may on application of either party be modified oy the court after one year from the dates they become operative. If we should order the case again remanded on the showing made by defendant, appellee, the same sort of application as made by defendant might again be made when the record would again come up to this court, and then again and again, and so on ad infinitum.

In the meantime, in all probability, the plaintiff would have “shuffled off this mortal coil” and passed into' another realm.

The motion to again remand the case, therefore is denied. .

ON THE MERITS.

The reason, apparently, why the District Judge did not render judgment for plaintiff on first hearing, and the reason why this court affirmed said judgment, was as said by the District Judge, because “we did this on the ground that there was not sufficient evidence in the record to connect the injury of plaintiff with his condition at the time of the trial; “or, in other words, that the accident of which plaintiff complains, was not shown to be the cause of plaintiff’s condition.

On a reconsideration of the case and a careful and painstaking study of all the facts and circumstances as disclosed by the record, we are of the opinion that the evidence does preponderate in favor of plaintiff’s condition and does warrant a judgment in his favor. It is patent from a mere cursory reading of the written opinion of the District Judge on last hearing that he, too, believes that, under' the present jurisprudence of the Supreme Court of this State, plaintiff is entitled to recover judgment. However, he says he prefers that his former judgment stand and that the case be again sent to this court, in order that, as he says, this “Court formulate its own policy for the future guidance of . this (District) Court.” Of course, this Court will follow and be guided by' the decisions of the Supreme Court, in so far as those decisions are applicable to the cases under consideration by this Court.

The evidence discloses that plaintiff was a well and healthy man of approximately twenty three or four years of age, when while engaged in work as a “roustabout” for the defendent company in its operations for gas and oil, a rod hook of steel or iron weighing several pounds fell a distance of from fifteen to thirty feet and struck him on the head; that he was hurt thereby and became sick and lost two or three days from his work immediately; that, within a few weeks or months, he developed epileptic fits, so he swears, and in that he is not contradicted but corroborated by certain facts and circumstances hereinafter adverted to; that he was sent or directed to the sanitarium in Shreveport by defendants’s officers or agents, where he related his condition to Dr. Hendricks, who told him to wait a few weeks and if the fits recurred to return to him and he would operate on his head; that within a few weeks thereafter, plaintiff did return to Dr. Hendricks, at the sanitarium, and told him the fits had recurred and that he was willing to have the operation performed as previously suggested by Dr. Hendricks; that Dr. Hendricks performed an operation on plaintiff’s skull by removing a portion thereof in the exact place of the wound caused by the falling of said rod hook; that, although, Dr. Hendricks said he found no adhesions in the brain or the linings or membrances thereof, he trephined the skull and the fits ceased; that, since that time plaintiff has suffered almost constantly from hyperthesia (oversensitiveness) of the scalp and head and from high blood pressure; that the slighest physical exercise causes exhaustion and severe pains in the head and possibly other parts of the body, with a rapid and high rate of increase of the pulse and heart action; that even combing his hair causes great pain and irritation; that purgatives and aspirin have little effect on him; that he is able to sleep but little;., and, finally that he had lost in weight at least twenty-two pounds since the first trial in the District Court and up to the time of the second trial on April 1, 1924.

Plaintiff testified, and in that testimony was not contradicted, that he had never had any trouble in his life before the accident. There is nothing shown of his family history that might suggest a cause for the attacks of epilepsy which he suffered following the accident. Plaintiff’s counsel during the first trial had the following statement placed in the record.

“The plaintiff in this case is willing at any time that the defendant be permitted to show the family history of this plaintiff and to contradict the testimony which they submitted as to there being any prior epilepsy in any ancestor of the plaintiff.”

No effort or attempt was made by defendant to offer any testimony to show that there was anything in the family history of plaintiff that might- account for the epileptic fits which he said he suffered from after the accident.

It has been contended that plaintiff’s testimony to the effect that he had the fits and would become unconscious and foam at the mouth was and is uncorroborated by other witnesses. It is true no witnesses came into court who swore that they had seen him have such fits; but his testimony on that score is not only reasonable but uncontradicted by any one. Counsel for defendant did not see fit to ever cross-examine plaintiff on that part of his testimony. By their failure to exercise their right to cross-examine the plaintiff on so vital a point is almost, if not fully, tantamount to an admission that that portion of his testimony is true, particularly in view of the further evidence that it offered no other evidence to contradict that part of plaintiff’s damaging testimony.

Pretermitting, however, the foregoing reasons for accepting plaintiff’s testimony in reference to his physical condition, this significant fact stands out, as it were, in bold relief. Plaintiff said he suffered from the epileptic fits and the defendant accepted his statement to the extent that it sent him to the sanitarium and Dr. Hendricks, for treatment or an operation. Dr. Hendricks, after listening to plaintiff’s history of his alleged condition, examined him and, not being fully satisfied as to plaintiff’s condition, told him to go away and if the fits recurred to return and he would operate on his head. Plaintiff obeyed the doctor’s instructions and in a few weeks returned and told Dr. Hendricks the fits had recurred. That able and eminent surgeon found that it was necessary to operate on plaintiff’s he'ad in order to endeavor to relieve the’ possible pressure on the brain or reduce any adhesions that may have formed on the linings of the brain. He did ¡perform the operation and said he found no adhesions and that the operation was a success. Now, it is absurd to think that plaintiff, if he was feinging his condition or practicing a fraud on defendant, would, for the sake of a small compensation or the mere hope thereof, willingly submit to as serious an operation as removing a portion of his skull, and permit the delving into as delicate and vital part of his anatomy as the brain. The most compensation he would hope to get would amount to much less than one-half the amount he was earning before the accident occurred.

Again, as able a surgeon and expert as Dr. Hendricks, it occurs to us, would not have subjected the plaintiff to as serious an operation as he did and thus have jeopardized plaintiff’s health,'if not his life, unless he had found reasonable cause for such operation. We assume the doctor used the best known and latest methods of ascertaining plaintiff’s condition before he performed the operation; and we also assume that, after making use of the best known and most modernly accepted meth_ ods of dianosing plaintiff’s trouble, Dr. Hendricks, exercised his best judgment and employed his scientific knowledge in determining that an operation on plaintiff’s head was necessary to relieve the diseased condition or to remove the apparent cause of plaintiff’s trouble. Certainly, plaintiff, who was doubtless suffering, at intervals, from the fits, relied on the superior knowledge and skill of Dr. Hendricks, and submitted willingly to the operation. No one hut an insane person or an imbecile would submit willingly to such a serious operation as did plaintiff unless he were suffering some serious ailment.

Furthermore, plaintiff’s statement of his condition is strengthened by the fact that Dr. Hendricks testified that his operation was a success, and by the further fact that plaintiff says the fits ceased after the operation.

The testimony of Dr. Willis, who was appointed as a disinterested expert to examine plaintiff and report on his condition during the first trial in the District Court, as well as that of Dr. Cassity, fully accounts for the fact that plaintiff’s condition was the result of the said accident. Of course, there are perhaps other causes of for instance, the high blood pressure of plaintiff; but no such other causes are shown to exist in plaintiff’s case. Certainly it would seem that some of the expert physicians who examined plaintiff at different times could have found present some other conditions or cause of the high blood pressure of plaintiff than the injury he sustained and the consequent operation performed by Dr. Hendricks on plaintiff’s skull if such other condition or cause existed. As said by the judge of the .District Court, we can find no other reasonable cause of the high blood pressure and other trouble from which plaintiff suffers except the accident which befell him. That is such satisfaction of the judicial mind by a preponderance of the evidence that plaintiff’s condition was and is the result of the accident as to warrant judgment in his behalf.

Dr. Herold, who was also appointed by the court during the last trial to examine plaintiff and report his findings to the District Judge, in his report to the judge, among other things said:

“Examination reveals a man of fairly healthy appearance, with a scar on right .side of certex of skull; he complains of tenderness there, as well as general soreness over scalp. While the scar can be recognized, there is no pulsation in it, such as we find when part of the bone is absent. I find him generally, in good physical condition, except for slight enlargement of heart with increased blood pressure — 156/100 at my examination; his urine was normal. The reflexes on the two sides are symmetrical, indicating lack of pressure on the brain over motor areas. I talked with Dr. Hendrick, relative to the case and Dr. Hendrick confirms the history about as above. He informed me that he did a ‘bone-graft’ in the skull in this case, so as to obviate the danger of the brain covering becoming adherent to the skin tissues, with a recurrence of the epilepsy.”

The normal blood pressure of one of the age of plaintiff is shown to be 120 systolic and 90 diastolic. Dr. Herold says also in his report that: “On the other hand, I find no specific cause, otherwise (than the accident and operation, we take it) for the increase in blood pressure (which, altho not alarming, is considerably above the average normal for one of his age) unless it be due to the slight hypertrophy of the heart, which is fairly common in one who has done a large amount of manual .labor.” Now when plaintiff was examined by Dr. Cassity, nearly two years before the examination by Dr. Herold, the former found, so he• testified,, that:

Q. Have you had an opportunity to examine the plaintiff in this case, Mr. Male-by?
A. I did yesterday.
Q. Please state the result of your examination.
A. This man gave me a history of having been injured on June 10th, 1921, by being struck on the top of the head by a fourteen-pound rod hook. Among other things he. says that it knocked two of his front teeth out, the impact of the upper against the lower teeth; knocked unconscious for a short time, and that some few months, afterwards, did not know just how many after the injury, he began having epileptic fits, that he had about eleven fits, up to the time that he applied to Dr. Hendricks of the Highland Sanitarium for treatment, which he said was March 16th, 1922, when they operated on his skull, with the object in view of trying to relieve the epileptic fits, and he says this operation, in so far as the fits were concerned, has apparently been successful, as he has not had any fits since that time.

On examination, I find that there is a small area, about an inch in diameter, on the apex of the skull.

Q. Center of the head?
A. Yes, sir, where there is absence of bone, I judge due to trephining operation, removing the bottom of bone with the purpose in view of relieving intra tranial pressure. There is considerable tenderness all over the flat that was turned down during the operation, which extends to the center of the head, then runs downward, making a flap.
Q. From the center of the head down towards the ear?
A. Yes, sir. I find a tenderness over the area. With gentle exercise of the young man, I find his pulse rate, sitting down, 108, and after exercising him, by having him to hop across the floor five or six times, his pulse rate went to 168 per minute.
Q. One minute?
A. Yes, sir. His blood pressure systolic 158, diastolic 80. Examination of the urine showed ■ normal urine. I find that his wind is rather bad, that is to say, gives out readily on exercise. Now there are two striking features about his condition, which I tried to explain on grounds other than his injury. That is to say, tried to rule out everything else but the injury as the cause of this abnormally rapid heart, and the resultant high blood pressure. The heart rate, of a man of his age, should be along about 72 per minute.
Q. Seventy-two per minute?
A. Yes, sir, while his was 108 sitting down, and on exercise it jumped up to 168, that was not only relatively fast in relation to the sitting down pulse, but absolutely fast, for his age. In other words, showed that the heart was evidently very much disturbed, and the exercise disturbed it and made it more rapid in proportion than when sitting, looked as if the heart center of the brain is involved and disturbed. Now, as to the high blood pressure, it is necessary to take into consideration quite a number of causes for high blood pressure. So I proceeded to look for all of the other causes that I could find, for instance, I went over his body thoroughly, and tried to find evidence of syphillis, one of the causes of high blood pressure. I included in the general history he had no history of syphilis and I found no evidence of syphilis, no evidence of chanker, or scar anywhere, so I concluded that the evidence of syphilis was negative. I found no cause other than the head injury that could causes or seemed to be the cause, for the high blood pressure. We know that head injuries often times do cause extremely high blood pressure and a rapid heart.

It will be noted that Dr. Cassity said it “looked as if the heart center of the brain is involved and disturbed.” The fact that almost two years after Dr. Cassity made his examination of plaintiff and said it “looked as if the heart center of the brain is involved and disturbed,” Dr. Herold’s examination of plaintiff disclosed a hypertrophied condition of the heart, which was not disclosed in any of the previous examinations made of plaintiff before and during the first trial in the District Court. All tlié exp'éi'is 'agree ' that a blow or lick on the head may result in epilepsy, and also will cause high blood pressure, particularly if the heart center of the brain is injured, except Dr. Hendricks, who says it will cause slow pulse and low blood pressure. Dr. Willis, however, says it will cause either low or high blood pressure, depending on the portion of the brain that is injured.

Dr. Willis was again asked by the court during the last trial to examine plaintiff and report his condition to the court, which he did. He said in full:

Q. Dr. Willis, you are Dr. J. S. Willis, Sr.?
A. Yes, sir.
Q. You are the same Dr. Willis that examined Mr. Maleby the last time?
A. Yes, sir.
Q. Doctor, have you examined Mr. Male-by in the last few days?
A. Yes, sir; saw him yesterday.
Q. I will ask you what you find his condition now?
A. Practically about the same as the last examination; we made a written report and sent it to you.
Q. Do you remember the contents of the report?
A. Dr. Kerlin said that it had been sent, and if not he will bring it here.
Q. You found the blood pressure what?
A. The blood pressure, systolic, one hundred and eighty.
Q. What ought it to be in a man of his age?
A. What is his age?
Q., Twenty-six.
A. Ought to be one hundred and twenty.
Q. One hundred and twenty?
• A. Yes, sir. As I recollect it, diastolic one hundred and fifteen,"and it ought to be about ninety.
Q. Now doctor, the last time that you examined this man, it was one hundred and fifty-five systolic and one hundred to one hundred and five diastolic, does that indicate an improved condition, or worse?
A.. According to our examination yesterday, it is worse.
Q. Assuming that this man has been trying to work, and has lost twenty to twenty-five pounds, worked off and on, something as a light job, and sometimes a job that required more or less exertion, what would you say would be the future result of a continuation of the work?
A. He is not in any condition to do hard work now.

Dr. Willis found plaintiff’s blood pressure, systolic, 180, when it should be 120, and diastolic pressure 120 when .it should be about 90. That disclosure shows a rather alarming condition, which causes Dr. Willis to say: “He (plaintiff) is not in any condition to do hard work now.” That is about the only sort of work plaintiff is fitted to do, having little or no education, only having gone through about the third grade in school.

Truly, therefore, we can ascribe plaintiff’s condition to no other cause than the accident “and the consequent operation on his head. His condition is evidently the proximate result of the accident, while in the employ of the defendant. We should construe the law as liberally as we reasonably can so as to effectual its beneficient purposes. Dyer vs. Rapides Lbr. Co., 154 La. 1091, 98 South. 677; Delaney vs. Pred Brenner Lbr. Co., 154 La. 156, 97 South 349; Ferguson vs. Cady-McFarland Gravel Co., 156 La. 871; 101 So. Rep. 248, advance sheet of Sept. 27, 1924.

As said by the able and learned Judge of the District Court, and as we say now, plaintiff’s condition since he developed epilepsy on or shortly before January 1, 1922, has been such as to render him unable to perform work of a reasonable character. True, he has performed services at intervals since he developed the epileptic fits; but we think, as does the District Judge, that every day he works it shortens his life beyond proportion. Considering the humane and beneficient purposes of the Workmen’s Compensation statutes, we do not think that it was the intention of the act to compel injured employees to work out of dire necessity and in order merely to maintain a subsistence for himself and those dependent upon him for support, when to work greatly accelerates and augments his-debility and hastens his inevitable demise. Prom the testimony it is apparent that plaintiff should not work unless and until his condition shall have greatly improved. Plaintiff, therefore, is entitled to receive compensation as a total disability dating from the time he developed epilepsy at the latest on January 1, 1922, and continuing for and during a period of such total disability not longer, however, than four hundred weeks. Under the law, either party may come into court and' ask for a modification of the judgment after one year from the date it becomes operative. Before and after January 1, 1922, defendant paid plaintiff compensation as for temporary total disability for a period of twelve weeks at the rate of $18.00 a week, for these amounts, credit should be given defendant. While a portion of that compensation was paid before January 1, 1922, it does not appear how much, and we shall allow defendant credit for the full amount thus paid by it.

Por the reasons assigned, it is ordered, adjudged and decreed that our former judgment and decree herein be avoided, reversed and set aside, and that there now be judgment in favor of plaintiff and against defendant, condemning said defendant to pay compensation to plaintiff at the rate of $18.00 per week, for and during a period of his disability not to exceed 400 weeks, dating from Janúary 1, 1922, and bearing interest at the rate of five per cent per annum on each weekly payment from the date of its maturity less a credit of $216.00, paid by defendant to plaintiff say, January 1, 1922, and condemning defendant further to pay all costs of both courts.

(P.orter, Judge, concurs in the decree.)

(Odom, Judge, takes no part, not having been a member of the Circuit when this case was submitted.)


author: CROW, J.

text:
    No. 2113.
    Second Circuit Appeal.
    F. R. CHADICK v. W. K. HENDERSON.
    (November 7, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Minors — Par. 135, 136.
    The minors’ mortgage does not begin to operate against or affect real property of a natural tutor or tutrix until it is recorded in the mortgage records of the Parish in which the property is situated.
    (Civil Code, Article 322; Vance vs. Vance, 32 La. Ann. 191; Caillouet vs. Franklin, 32 La. Ann. 220; John S. and Louise Skinner vs. Wiliam C. Sibley, 27 La. Ann. 392.)
    2. Louisiana Digest, Error and Mistake-Par. 8, 16.
    Where there was an error, believing tha there was a minor’s mortgage ex isting against certain land at the tim the minor’s mother sold her interest money retained out of the purchase price of property due to this error of fact can be recovered.
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a suit to recover money erroneously retained out of the purchase price of land.
    Judgment for the plaintiff and defendant appealed.
    Judgment affirmed.
    Dickson & Denny, of Shreveport, attorneys for plaintiff and appellee.
    Pugh & Boatner and Byron A. Irwin, all of Shreveport, attorneys for defendant and appellant.
   CROW, J.

Plaintiff sold defendant a tract of land situated in Caddo Parish, for a stipulated price, and by agreement of the parties to the transaction, defendant was permitted to retain in his hands $875.00 of the purchase price of the property for the reason that it was then thought by both parties that - there was recorded against said property a minor’s mortgage, resulting from the recordation of the abstract of inventory in the matter of the tutorship of the minor heirs of John Connelly, deceased, who had once owned an undivided fractional interest in the said land. However, after the said sale of the land by plaintiff to defendant, it was discovered that, in truth and in fact, the parties were in error in believing that there was any minor’s mortgage existing against and affecting said land at the time said minors’ mother, Mrs. Florence Rogers, sold her interest (against .which it was thought the minors’ mortgage operated)' to one Peter Schlomer, one of the ancestors in title of plaintiff.

In other words, it was later found to be the fact that the sale of Mrs. Rogers’ interest in the land was made and the deed recorded in the conveyance records of .Caddo Parish, in May, 1908, and that the abstract of inventory of the minors’ property was not filed or recorded in the mortgage office till January 28, 1909.

The sale was made by Mrs. Rogers to Schlomer, who purchased the property in good faith for a valuable consideration, on what was disclosed by the public records of Caddo Parish. The minors’ mortgage does not begin to operate .against or affect real property of a natural tutor or tutrix until it is recorded in the mortgage records of the Parish in which the property is situated. (Civil Code, Art. 322; Vance vs Vance, 32 La. Ann. 191; Caillouet vs. Franklin, 32 La. Ann. 220; John S. and Louis Skinner vs. William C. Sibley, 27 La. Ann 392.)

Defendant declined to pay the balance of the purchase price after it had been found that there was no minors’ mortgage affecting the land. Plaintiff thereupon filed this suit to recover the said sum of $875.00, with eight per cent, per annum from December 13, 1922, till paid. Judgment was rendered in favor of plaintiff as prayed for, in the District Court, and the defendant has appealed.

No argument was made by counsel in this court for defendant, appellant, and they agreed to submit the case on briefs to be filed, but none have been filed by them.

We find the judgment of the District Court correct, and it is affirmed.

(Odom, Judge, takes no part.)