author: ELLIOTT, J. PER CURIAM.

text:
    No. 703
    First Circuit
    ROGGE v. CAFIERO
    (December 1, 1930. Opinion and Decree.)
    (March 3, 1931. Application for Rehearing Dismissed on Motion of Appellant.)
    (January 26, 1931. Case Remanded for Evidence of Acquiescence.)

      Charles T. Wortham and Walter Lemann, of Donaldsonville, attorneys for plaintiff, appellee.
    Milner & Porteous, of New Orleans, attorneys for defendant, appellant.
   ELLIOTT, J.

Thelma Rogge claims damages of Leo Cafiero in amount of $4,224.25. Her ground of action that' said Cafiero had stretched a steel cable in about the center of Lessard street, running lengthwise the street and crossing the place where Lessard street was intersected by Mississippi street in the city of Donaldson-ville, and was engaged by means of a capstan and said cable in pulling an engine, weighing 28 tons, along Lessard street to the place where it was to be installed. That-the cable was not moving and was lying at the time flat on the ground. That to all appearances it was. perfectly harmless, and it was perfectly safe for her to cross the street. That nobody was stationed there by defendant to warn against the danger. That the capstan was operated by a mule; that there was a. distance of about 400 feet in between the capstan and the' engine which was being moved. That crossing the street on foot, just as she stepped over the cable defendant and his agents and employees caused the mule to start, thereby causing the cable to suddenly leave the ground, and as it rose in the air it struck her on her left foot, throwing her forcibly and violently to the pavement, with the result that her elbow was badly broken and contusions received on her knee, with other minor injuries. That she suffered great pain; that her arm remains, permanently stiff, as well as a disfiguring scar. That she was forced to undergo an expense of $724.25 on account of her injuries. That she lost three months’ salary at $50 per month, all of which she claims, together with $3,500 on account of her suffering, permanent injury, and disfigurement, a total of $4,224.25.

Defendants filed an exception of no right or cause of action, which was overruled. Defendant urges that this ruling was erroneous. He urges that the line was not dangerous; but if so, that it appears as a proper inference from the petition that it was an obvious danger, and that plaintiff’s injury in stepping over it resulted from her own negligence and want of care.

Taking all of plaintiff’s averments on the subject as true, for the purpose of reviewing the ruling of the lower court, it appears, as a proper conclusion and inference from the petition, that defendant had created a danger in a frequently used street of the city of DonaldsonvillS, but which according to appearances was harmless, and had placed no watchman there to guard against it those who were walking and using the street on foot. That although it appeared to be safe to cross, the street, yet it was not safe. That plaintiff saw the capstan and line placed in the street for the purpose of pulling the engine, as she came to step oyer it, but the line at the time was not moving, and was lying flat on the ground. That defendant, just as she was stepping over it, caused it to suddenly leave the ground and rise in the air, striking her on the left foot and throwing her to the pavement, injuring her.

The exception was properly overruled.

The defendant answered, denying liability. He alleges that the line was some 200 or 300 feet long, and denies that it was lying flat on the ground; and alleges that it was between 6 and 9 inches above the ground and obvious to plaintiff’s view and not dangerous to step over. That at the time the plaintiff started to step over it, the chief of police of Donaldsonville had his foot on it pressing it to the ground so that automobiles could pass over it; all in full view of the plaintiff. That just as the last of five cars had passed over it and just as the chief of police remo'ved his foot, the plaintiff attempted to step over ?t, without taking care to step far enough to keep from touching it, and was tripped and fell as a result of her own negligence and want of care. That plaintiff saw the line and could have stepped over it safely if she had used proper care. That her own negligence in stepping over it is what caused her to fall, etc.

The case was tried before a jury, and they rendered a verdict in favor of the plaintiff for the full amount of her demand. The defendant moved for a new trial.

One of the grounds of his motion is that the jury was so lacking in intelligence that they were unable to apply the law given them by the court to the established and uncontradicted facts of the case. As for this ground, the defendant does not allege nor show that he had challenged any of the panel on that account; consequently there is nothing in the record which supports his motion, and as the lower court overruled his motion and approved the verdict, we are unable to say that the court erred.

Another ground is that the form of the verdict was unknown to the law, and amounts to no verdict at all. The verdict was written on the back of the petition in words as. follows, to-wit:

“To the Honorable Judge of this Court: We submit this our decision for the full amount, as petitioner prays for.
“[Signed] F. M. Crawford, Foreman.”

The minutes show that the court, upon receiving the verdict, stated to the jury that the word “petitioner” meant plaintiff, and asked the jury if that was their intention and verdict; and the jury stated that it was. Counsel for the defendant then requested that the jury be polled. The jury was polled, and each of them asked the question, “Is. this your verdict?” and each of them answered in the affirmative.

The provision in the Code of Practice, art. 522, that the verdict shall be in the words, “Verdict for the plaintiff,” or “Verdict for the defendant,” is directory. A substantial compliance is sufficient. City Bank of New Orleans v. Foucher, 9 La. 405; Wichtrecht v. Fasnacht, 17 La. Ann. 166; Cooper v. Cappel, 29 La. Ann. 214.

The verdict showed the intention and finding of the jury and was sufficient. It . has been held that a finding for the full amount of a claim is sufficient. Dry-Dock Co. v. Steam-Boat Line, 43 La. Ann. 258, 9 So. 630. This, attack was therefore properly overruled.

Another ground is that the jury was allowed to separate during the lunch time. There is no law against this in civil cases if the jury are properly instructed by the judge; and there is no showing that they were not, nor that any of them did anything wrong; no proof that they separated. Therefore this ground can not he sustained.

It is charged as a further ground that the stenographer was incompetent and did not take down all the testimony. The record contains a motion to correct the testimony, setting out that certain alleged matters were omitted, etc. The plaintiff in the case admitted that such was done and agreed to the, correction. As we understand it, the testimony stands corrected accordingly, and which correction we have taken into account in our consideration of the case.

The ground that the verdict was contradictory to the law and the evidence, and the further grounds set out in paragraphs (A) to (H), both inclusive, and the Nos. 7, 8, 9, section 5 of the motion, are involved in the appeal on the merits of the case, and our action on the merits will be our ruling on these grounds.

On the merits the plaintiff testifies that when she started across the street she noticed the machinery, and engine weighing 28 tons, being pulled along the street by the capstan and cable. That the cable was lying flat on the ground and not moving, when she came up to cross over it. That others just ahead of her had stepped over it and she felt that she could do likewise. She made a step with her right foot, long enough not .to touch the cable, at which time it was lying flat on the ground, but the cable raised and tripped her left foot and she fell to the ground and was injured. That after she fell, she saw that the cable had raised 6 or 7 inches; that she thought she had raised her left foot sufficiently to miss the cable; that she didn’t expect it to rise, etc. That the cable left a scratch on her left shoe; that she could see the grease of the rope marked all along the front of her shoe. She says that at the time she came up to where the line was she saw Mr. Dill, chief of police, across the street talking to Mears Folse. The testimony of Miss Rogge is supported by Mears Folse, he, with others, assisted her to get up. And he testifies that the wire cable left a mark running across the top of her shoe, and that Mr. Dill did not have his foot on the cable at the time she tripped and fell.

Mr. Folse says:

“I was still speaking to Mr. Dill when I saw Miss Rogge fall to the pavement. When she got to the cable and was stepping over it, she tripped and fell.”

In another place speaking of the time she fell, he says:

“Q. Tell the jury whether the cable was on the ground or not?
“A. It was lying practically on the ground and started to rise.
“Q. You saw that?
“A. Yes, sir.”

Defendant urges that Mr. Dill contradicts the claim of Miss Rogge, as to the rising of the line from the ground; but we do not find that his testimony goes as far as is claimed for it; but it is not in harmony with her statement and that of Mr. F.olse as to what he was doing at the time she fell. He says that five automobiles had come across the ferry, and it was neces,sary- for them to cross this line:

“I kept my foot on the cable until every car passed, and just as the 5th one passed, I still had my foot on the line, and just as I turned my head I saw Miss Rogge fall.
“Q. Did Miss Rogge make any statement as to how the accident happened?
“A. She said the cable didn’t look to be so high.”

He further stated that he had been talking to Mr. Poise, but it was before the accident; that he had sent for a plank, and that after the accident to Miss Rogge he had the plank placed across the line to make it safe for people to cross. That the cable would some times rise up 7, 8, 9 inches, maybe 10 inches., and then go down. We are satisfied that it raised up when it was taut and when it was pulling the 28-ton weight it raised up and was taut; but the people were not warned when it was about to raise up. Consequently when it was lying on the ground still, as it was doing when Miss Rogge came to step over it, it was not an obvious danger. She had no reason to expect that it would rise up so quick and so high after she had stepped over it with one foot, that her other foot would catch under it. It was an unknown and non-apparent danger. No authority to subject the street to such a danger existed in defendant. The fact that the chief of police was present, saw what was going on, and had put his foot on the line and held it down so that automobiles could cross over it, did not placate the situation. Plaintiff had the right to cross the street at the usual place, and to expect that it was safe to do so, and not rendered dangerous by the sudden movement of this line. The defendant should have covered it up so as to make it safe to step over before the accident, because he knew that the line would rise taut above the ground quickly when its power was applied to the 28-ton weight it was moving along the street. The testimony of Mr. Dill that, just as he lifted his foot off the line, Miss Rogge fell, contradicts her and Mr. Folse only as to what he was. doing at the time. His statement in that respect could be true, and her statement that the line was lying still on the ground at the time and place where she attempted to step over it, and that after she had stepped over it with her right foot it raised up, caught her left foot, and tripped her before she could finish getting over it, can also be true, because the evidence tends to show 'that the place where she tripped and fell and the place where he was. standing at the time was 25 or 30 feet apart.

In the case Smith v. City of Baton Rouge et al., 166 La. 472, 117 So. 559, the defendant waterworks company had dug a hole in the street for the purpose of repairing a wátér main ana had left it uncovered. The hole was several feet deep and full of water. In that case a young child, too young to have discretion and judgment, fell into it and was drowned. The case so far as it concerned a child is not comparable to nor an authority in the present case; but in the course of the decision the court made it plain that the defendant had no right to render a street dangerous, that the consent of the municipal authorities could not justify doing so, and that, the waterworks company having created the danger, they should, while it lasted, have properly guarded it, and that, having failed to do so, it was liable in damages.

In Palermo v. Orleans Ice Mfg. Co., 130 La. 833, 58 So. 589, 40 L. R. A. (N. S.) 671, the defendant knew the danger it had ereated in a street and had placed a watchman there to guard the people against it, but the watchman neglected his duty and injury resulted. The court held defendant responsible in damages.

In the Palermo case the party injured was an irresponsible child, but that does not alter the principle which the case stands for in the matter of creating an unknown and non-apparent danger in streets.

In Cline v. R. R. Co. et al., 43 La. Ann. 327, page 334, 9 So. 122, 125, 26 Am. St. Rep. 187, the court in discussing a similar principle, says:

‘‘But, even if the. driver had seen the hole, and had not avoided it, nothing shows that he knew of its dangerous, character.”

And a defense of contributory negligence urged in that case was overruled. See also McCormack v. Robin, 126 La. 594, 52 So. 779, 139 Am. St. Rep. 549; Thompson on Negligence (2d Ed.) vol. 1, Subject, Obstructions Endangering Drivers on Roads and Streets, secs. 1214 to 1281.

The provisions, “We are responsible, not only for the damage occasioned by our own act, but for that which is caused * * * the things which we have in our custody * * * with the following modifications,” Civ. Code, art. 2317, and, ‘‘When the masters or employers * * * might have prevented the act which caused the damage, and have not done it,” Civ. Code, art. 2320, are applicable without the modification, because the defendant was himself in charge of the work. But the modification also applies because this line could have been covered over and made harmless for people stepping over it, but defendant did not do it.

The testimony of Miss Rogge is supported by that of Mr. Folse; so, even to the extent that her testimony may be regarded as contradicted by Mr. Dill, it remains that the preponderance of the evidence is that she was tripped and fell and was injured as stated in her testimony. The jury and the district judge came to the same conclusion that we have, that plaintiff’s injury and suffering was due to the fault and neglect of the defendant, and he is therefore obliged to repair it. The merits, being with the plaintiff, it follows that defendant’s alleged grounds for new trial, not heretofore acted on, were properly overruled.

We find that defendant is responsible to the plaintiff on account of the injuries and damage's sustained as a result of her fall.

Defendants contend that the judgment for $4,224.25 is excessive under the evidence and should be reduced. She claims on account of doctor’s bills, expenses at Touro Infirmary, and after leaving the hospital, necessary traveling expenses back and forth from Donaldsonville to New Orleans for the purpose of her treatment, which had to be continued, and for board and lodging in New Orleans, etc., a total of $725.25. The amount of this claim and her further claim for $150 on account of loss of salary as stenographer is not seriously contested, and will be allowed as claimed.

She claims $2,000 on account of suffering, $1,000 on account of permanent disability in her arm, and $500 on account of a permanent scar on her arm.

The elbow joint in plaintiff’s arm was fractured in such a way that an operation was necessary, and for that purpose she underwent an anesthetic and suffered excruciating pain for about two weeks, and continued to endure severe pain and suffering for about a month longer, and endured some pain about another month. We have concluded that $1,500 is. sufficient compensation on that account.

The injury to her elbow is permanent; she cannot flex or bend her arm upward as she could normally do. In other, respects, however, she can make about as good use of her arm as she ever could. We have concluded that $500 is sufficient compensation on that account.

Her injury resulted in a large, permanent scar on her arm at and near the elbow; the scar may be seen, but it is not very conspicuous. We have concluded that $125.-75 is sufficient compensation on that account, making a total of $3,000.

For these reasons the' judgment appealed from is reduced from $4,224.25 to $3,000, and as thus amended, affirmed. The judgment to draw interest at 5 per cent per annum from February 9, 1930, until paid.

Defendant and appellant to pay the cost in the lower court. Plaintiff and appellee the cost of appeal.

ON APPLICATION FOR REHEARING

PER CURIAM.

In this case, Thelma Rogge, the plaintiff, applied for a rehearing, and on January 5, 1931, while her application for rehearing was pending, filed a petition to withdraw said application for rehearing alleging in said petition that she had received full payment and satisfaction of the judgment therein rendered, which petition for rehearing and petition to withdraw are both pending in this court.

The defendant, Leo Cafiero, on December 13, 1930, also petitioned for a rehearing on the ground, amongst other matters, that an error made in calculation to his prejudice should be corrected, and said application is also pending in this court.

The court not being able to act satisfactorily on the petition of either party, due to the averment of the plaintiff, appellee, that the judgment had' been settled, it is ordered that this case be referred back to the district court in and for the parish of Ascension, and that testimony be taken in said district court at a time to be fixed by the district judge after notice to the plaintiff and defendant as to whether the judgment herein, has been paid and satisfied; that said testimony be taken in writing, and when taken, that said testimony be placed in the record, and the record returned to this court at Baton Rouge, all to the end that the applications of the plaintiff, appellee, and the said application of the defendant, appellant, for a rehearing may be acted on properly.

In this case, on January 26, 1931, this court entered an order herein referring this case back to the district court in order that testimony might be taken as to whether or not the judgment herein rendered had been satisfied, as will appear by reference to the said order.

On January 28, 1931, after said order had been entered, the defendant, Cafiero, filed a motion in this court to withdraw his application for a rehearing on the ground that the case had been compromised arid settled.

And it appearing now that both parties are agreed on that subject, our said order of January 26, 1931, is recalled and e.et aside and it is now ordered that the rehearing prayed for by said Leo Cafiero be withdrawn and the appeal dismissed.


source: Caselaw Access Project

author: ELLIOTT, J. MOUTON, J. ELLIOTT, J.

license: Public Domain

text:
    No. 565
    First Circuit
    BERNARD v. CITY OF LAFAYETTE
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Granted.)
    (January 26, 1931. Opinion and Decree on Rehearing.)
    A. W. Dallares, of Lafayette, attorney for plaintiff, appellee.
    George W. Lessley, of Lafayette, attorney for defendant, appellant.
   ELLIOTT, J.

Antheole Bernard alleges that while in the pursuit of his regular business as an employee of the city of Lafayette as water line helper, a pipe which he was carrying fell on his left leg causing injury to the shin bone. That the accident occurred on or about January 20, 1927.

That he was receiving at the time a weekly wage of $15 per week, and was by said injury totally disabled. He claims of the city of Lafayette, as compensation on account of his’ injury and disability, 65 (per cent of his weekly wages, not to exceed 300 weeks.

That he has since the accident been under constant care of a doctor, and is therefore entitled, in addition, to $250 for hospital service and medicine.

An exception was filed by defendant that plaintiff’s petition did not disclose a right or cause of action. The minutes of the court do not show that it was acted on in the lower court. It is not urged in this court; we therefore look on it as having been abandoned.

The principal defense is that any injury or disability which the plaintiff presently suffers from is due to a long-standing form of eczema, and not to injury received in its employ.'

Due to the conclusion at which we have arrived concerning the defense mentioned, which involves the merits of the case, it is not necessary to consider or act on the further defenses urged in the answer.

The lower court rendered judgment in favor of the plaintiff, awarding him compensation at the rate of 65 per cent on his weekly wages during the term of his disability; not to exceed 284 weeks, and $250 for medical fees.

Defendant has appealed.

Plaintiff states that his work consisted in (putting in pipe lines, digging ditches, laying water pipes and mains. Asked to explain what he was doing and how the accident happened, when he scratched or cut his left leg, he answered in effect as follows: “I was working on pipes weighing about 3 or 4 hundred pounds and one of them slipped and the iron part struck my left leg below the knee about 6 inches. I did not think it was very much. On Sunday night at 12 o’clock it woke me up and when I wanted to get up Monday morning I could not stand on my leg.” He further testified that he was told to move the pipe by Joe Mouton, foreman, in the employ of the city, and under whom he was engaged in the work. That he was hurt on Saturday evening about 20 minutes of 4, near quitting time. That he returned to work Monday morning, but that about 8 o’clock, Joe and Ulysse Mouton, who had gone to run a line, got back and he was sitting on a box. When he got up he could not stand very well. Ulysse Mouton asked what was the matter, and he answered, Saturday where that pipe struck him his leg was stiff.

“Q. Did you return to work for the City after that time?
“A. I returned in 3 or 4 days, I do not remember exactly. I had treated my leg and I was still limping, but I returned to work.
“Q. Tell the court just how that sore grew for the first two or three months after the accident.
“A. After the accident eruptions began growing out around the sore, and then it went up.
“Q. How long after the accident you first noticed these lictle boils around this sore?
“A. About 8 or 10 days after they began to come out, pimples and little heat eruptions.”

Plaintiff’s statement as to how he received his alleged injury leaves uncertain what he was really doing. He says he was working on the pipe; hut if in lifting it, it slipped and fell, and his ankle was pressed against it so hard as to get scratched in the fall, the falling pipe would almost necessarily have mashed his foot. But there is no claim that his foot was injured. Then again, his ankle, being likely shielded by his clothing, did not come in contact with the iron, unless he had his pantaloons rolled up, and there is no contention that the naked skin was exposed to the iron. And if his naked skin did not come in contact with the iron, there could not have resulted an infection from it, as he claims. His testimony doe's not support the averment in his petition that his shin bone was injured. He claims nothing further than a scratch on his ankle.

Joe Mouton was not present at the time of the alleged injury, but remembered that plaintiff told him about it, he thought, on the next day after the alleged accident; but the next day was Sunday and he did not see plaintiff until plaintiff returned on Monday morning. It was therefore on Monday morning that (plaintiff told him about it. He says that he looked at the alleged injury received on the previous Saturday and that it consisted of a scratch on his leg, which was kind of swollen and red, not in very bad condition.

Ulysse Mouton testifies that plaintiff told him about receiving an injury to his leg. This witness thought it was the next day after the alleged injury that plaintiff told him about it, but the next day was Sunday. It was on Monday when plaintiff returned to work, he told him about it and showed him the place. Witness states that it was just a little scratch.

An insurance agent called to see plaintiff to pay him some insurance. The exact day does not appear, but evidently about a week after the alleged injury. The witness, speaking of plaintiff’s leg at th'e time he first saw it, .says that it had a scratch on it about six inches long, with redness around it.

Mrs. Bernard, wife of plaintiff, speaking of the injury when plaintiff reached home the evening it was received, says he had gotten hurt and had a bruise on his leg. She treated it and he returned to work.

Dr. J. O. Duhon examined (plaintiff abcut three months after the alleged injury. At that time plaintiff’s whole body was covered with eczema. This physician says that the form of eczema with which plaintiff is afflicted commences over a long period of time in the system and gradually develops until in its natural course it manifests itself. That it is caused by a microbe and, with reference to plaintiff’s case, he did not know what brought it about. That a person with an abrasion on his leg, working in mud and water, would be subject to infection, but might just as likely have gotten it shaving himself. That it is not necessary that there be an abrasion of the skin in order to bring on eczema; that it could be caused by nervous trouble, and in other ways.

Dr. Clark, appointed by the court to examine plaintiff at the time of the trial, returned that he found his leg and ankle dry and scaly, with isolated spots of eruption and scratch marks over the surface. That papules and scratch marks were (present over his whole body, especially his extremities. He was unable to say whether the condition of the plaintiff was caused by any previous injury or not.

Dr. Oliver had also examined plaintiff, and he said, basing his opinion on the history of plaintiff’s case, that infection had existed a year or less. But without the history, he could not tell how long it had existed. That observation of plaintiff’s disease indicated that it had existed about a year at the time of his examination, which was in November, 1927.

Returning to plaintiff’s testimony that he returned and worked three or four days, but was at the time still limping. The evidence shows that on his return he worked at least one day repairing a broken pipe line. The pipe line was laid in a ditch under the ground; this ditch contained water from the broken pipe. The evidence shows that the water in the ditch in which plaintiff worked was the same that the citizens of the city of Lafayette used for household purposes. It will be assumed to have been, and undoubtedly was, pure water. But it may be, we think, also safely assumed that there was some soil in the ditch which the water transformed into mud, and there is evidence that working in mud and water may result in an infection, or aggravate an existing condition.

But it was three weeks or a month after plaintiff’s alleged injury before he returned and worked in the ditch. He was questioned about the result, and replied:

“Q. Tell the court what happened to that left leg after this day’s labor that you performed for the city of Lafayette, that you just described?
“A. The next day I could not return to work, my leg was hurting me too badly.
“Q. Did your leg get better or worse after that?
“A. Worse.”

Under the law disease must be traceable to an accident before it is compensable.

The burden of proof is upon the plaintiff to show that the scratch exhibited to Joe and Ulysse Mouton Monday morning was received in the way alleged, that the disease with which he is suffering grew out of this scratch, or that same was thereby activated into the form in which it incapacitated him.

The fact is eczema is an itching disease producing in the sufferer an uncontrollable desire to scratch himself. Plaintiff had scratches all over his body.

The evidence leads to the conclusion that, while the incapacity which plaintiff suffered may possibly have resulted as claimed by the plaintiff, or a dormant eczema already existing in his system may have been in that way activated and aroused to virulence, yet it is indicated, with equal or greater force, that it existed in his system previous to the time of his alleged injury, and became virulent as the result of its own natural development.

He does not claim in his testimony that working in a ditch containing water from a broken main, after he returned to work about three weeks or a month after his alleged injury, did more than make an existing condition worse.

It cannot be insisted that plaintiff left home well in the morning and returned injured in the evening, because the disease with which he suffers may have- been in his system, unknown to him, for months before the time of the alleged injury.

The word “acciddnt” is defined in the Employers’ Liability Act, Act No. 20, of 1914, sec. 38 (amended Act 38 of 1918) as follows:

“ ‘Accident,’ as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening, suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.
“The terms ‘Injury’ and ‘Personal Injuries’ shall include only injuries by violence to the physical structure of the body and such diseases or infections as naturally result therefrom. The said terms shall in no case be construed to include any other form of disekse or derangement, howsoever caused or contracted.”

It is not shown that the eczema with which the plaintiff is infected is the natural result of an accident received as alleged, nor that an existing condition in plaintiff’s system was thereby activated into virulence.

The judgment appealed from herein is erroneous and contrary to the law and the evidence.

The judgment is therefore annulled, avoided, and set aside, and plaintiff’s demand is refused and set aside.

LECHE, J., not participating.

ON REHEARING

MOUTON, J.

Plaintiff, an employee of defendant city, was working under Joe Mouton, foreman on the water line. Plaintiff was engaged in digging ditches and laying pipe lines and mains for the city. He testifies that, while handling pipes weighing three or four hundred pounds, one of them slipped, the iron part striking his leg about six inches below the knee. He says he did not believe when he was struck, that it was a serious injury, but that on Sunday night, which followed the evening of the accident, he was awakened by the effects of the injury, and on Monday morning he could hardly stand on his leg.

Joe Mouton, under whom plaintiff was working, saw his leg a day or two after the accident. He says the skin was scratched, that it was red, the leg kind of swollen, but was not then “in very bad condition.” Further, on cross-examination by counsel for defendant, he says the skin was broken a little bit, just a scratch. He says he reported to Mr. Ard, his superior in the service of the city, that plaintiff had suffered a scratch on his leg from a piece of pipe, and was not able to work.

Ulysse Mouton, an employee of the city, says he saw plaintiff’s left leg where he had received the injury; that he had a scratch there, not very long, about two and one-half inches.

It was therefore clearly shown, and of which there is no contradiction, that plaintiff had received an injury by the falling of a heavy pipe on his left leg, which had resulted in a scratch and broken skin of about two inches in length. This injury was suffered on a Saturday evening, and, when plaintiff returned Monday following to his work, his leg was stiff, and he was advised by Joe Mouton to go home.

Three or four days thereafter plaintiff testifies that he returned to his work; that he was then limping, and there is no evidence, it is proper to remark, contradicting the foregoing statement. His testimony is that in fitting a piece of pipe to another he got wet by standing in mud and water during the whole day before he was through with the job. The day after, he testifies, he could not go back to work, as he was suffering too much from his injured leg. It is true that, on cross-examination by defendant, plaintiff said that the water that came into the place where he was laying the pipe was from the city water mains, and was clear. The fact remains, however, that he was working in mud and water 'during a full day with a leg upon which he had an abrasion of the skin. Plaintiff says about eight days after the accident pimples and little heat eruptions began to grow out around the sore or bruise on his leg.

His wife testifies that the eruption started from around the bruise.

J. C. Chargois says he visited plaintiff at his home about five or six days after the accident; that plaintiff exhibited his left leg, and that on the ‘‘side of the skin” the skin was off; that it was inflamed, red, and swollen. Chargois is certain' that on that visit, which was his first, plaintiff had no eruption on his hands or body at that time. He says, two or three months after, when he returned on his second visit, plaintiff had developed an “eczema all over, his legs and hands.”

This testimony of Chargois, a witness altogether disinterested as far as the record discloses, shows that at his first visit— which occurred after plaintiff had worked in mud and water in laying a broken pipe —that the eruption was on the leg around the spot where the injury had been inflicted. His testimony in that respect, on a point quite important in the solution of this case, is corroborated by the testimony of plaintiff and of his wife that the eruption began to spread from the sore or bruise on his leg. It is shown by the evidence that these pimples or sores in the course of a few months had gradually spread, covering the hands, legs, and, in fact, the whole body qf the plaintiff.

This growth or rash, as described by the witnesses, started or began from the scratch or broken skin on the left leg, which obviously was the point of infection.

Three physicians testified in the case, Drs. Duhon, Clarke, and Olivier. The examinations by these physicians of plaintiff’s trouble were made several months after the accident, when the eczema or rash had covered the body of the plaintiff, and not at a time when they could have given expert testimony in reference to the origin of the disease.

Dr. Duhon says, that the affection of which plaintiff was suffering begins by an infection caused by a germ, and that a person with an abrasion on his leg would be subject to an eczema.

Dr. Olivier says that he found plaintiff was suffering from an exudative eczema which was most probably caused by some broken or slight abrasion of the skin surface. In such cases, he says, that the cause is not internal, but is specific and external.

Dr. Clarke, expert appointed by the court says that it is possible for a person with a bruise or scar exposed to mud and water to develop the condition in which he found plaintiff when he made his examination. There is nothing in the testimony of Dr. Clarke that contradicts the testimony of the two other physicians in reference to the probable origin or cause, of the trouble, which finally incapacitated plaintiff from pursuing his usual work as a common laborer. "

It is shown by the testimony of the medical experts that skin diseases may have their origin in various causes, even in some instances from nervous affections, as was stated by Dr. Duhon.

■ It is shown overwhelmingly by the evidence that prior to the injury plaintiff was and had always been in fine health, was strong and robust, and a reliable, efficient laborer. The very fact that when hurt he was handling iron pipes weighing three or four hundred pounds indicates with certainty that he was at that time strong and fully competent to perform the services for which he.was employed.

It is singular, and indeed passing strange, that, if the eczema of which he complains had had its origin from some invisible internal cause, arising from nervousness or such like, there had never been any indication that he carried in his system a trouble of that character. Usually, nature gives a warning by some symptom or other of an approaching disease. There should have been, it seems to us, some premonition of the coming trouble. If he really had such a dormant disease in his system, it 'is again very singular that it should have, immediately after the accident, started to grow from the point of injury and from there spreading over his whole body.

It is known today by laymen, and which is not disputed by the physicians who testified in this case, that practically all diseases are caused by microbes, bacteriae, or germs. It is also known that, when water, whether from city mains, clear or not, is mixed up with the dirt of ditches ■or streets, that mud, the result of it, may at any time be saturated with microbes or germs which may bring about different forms of diseases, and exceedingly virulent in character.

If plaintiff was not affected with the trouble when he first received the injury we think the proof shows with sufficient legal certainty that, after his exposure to the mud in laying the pipe, he was' infected with microbes or germs which laid concealed there.

We say so because, as appears from plaintiff’s evidence, that of his wife, and of Chargois, who has no interest in the outcome of this suit, after he had worked in laying that pipe, which was three or four days after the day he was injured, the eczema was spreading from the sore on his leg, over his hands and legs, and which finally covered his whole body. On this, the crucial point in the case, let us see what the Compensation Law, Act No. 38 of 1918, p. 49, sec. 38, says on'this subject.

In describing the meaning of the terms “injury” and “personal injuries,” section 38 says:

, “The terms ‘Injury’ and ‘Personal Injuries’ shall include only injuries by violence to the physical structure of the body and such diseases or infection's as naturally result therefrom.”

There can be no doubt that plaintiff suffered violence to the physical structure of his body in the break or abrasion of his skin which is a structural part of the human body. The statute in the section quoted above further says that in the term “personal injuries” shall be included “such diseases or infections as naturally result therefrom,” which has direct reference to injuries by violence to the physical structure of the body, of which as heretofore shown, plaintiff was the victim.

How is it possible to say otherwise than that the infection, which started at the sore spot on plaintiff’s leg, gradually spreading over his whole body, was the natural result of violence to his physical structure as appeared in the broken skin on his leg and by reason of exposure to the mud in the ditch where lurked microbes, bacteriae, or germs brought about the eczema or skin disease of which he complains. This is the only reasonable inference to be deduced from the facts of this case. It is sufficiently convincing to entitle him to recovery of which he should not .be denied, because of the possibility that some other mysterious cause for the origin of his trouble might have lain concealed in his system. The law could not require that plaintiff should also show that his trouble did not originate from some other cause of which there was no appearance or the slightest indication. The right to recover, which we find ¡plaintiff entitled to, is not based on the rule of liberal construction of the Compensation Law in favor of the employee which has been, uniformly recognized by our courts. In matter of proof, the same rule prevails in this as in ordinary cases by which plaintiff is always required to make out his case with legal certainty. We find that he has discharged that burden effectively, and, after a re-examination of this record, have found that our original judgment was erroneous, and that the district judge was correct.

It is therefore ordered, adjudged, and decreed that our original judgment be avoided and reversed; and that the judgment appealed from be affirmed, with costs.

ELLIOTT, J.

(dissenting). The facts of this case are truly stated in the original opinion. The former opinion, as does the opinion on rehearing, mentions the provisions of Act No. 20 of 1914, sec. 38 (amended by Act No. 38 of 1918), but overlooked to mention the further provisions of section 18, subd. 4 (amended by Act No. 85 of 1926), to the effect that:

“All compensation payments * * * shall mean and be defined. to be for injuries and only such injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.”

I think the original opinion of this court herein correct, and dissent from that on rehearing for the reasons stated in the first opinion.


author: WESTERFIELD, J. HIGGINS, J.

text:
    No. 13,401
    Orleans
    CRISTIANA v. SIEVERS
    (November 3, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Granted.)
    (February 2, 1931. Opinion and Decree on Rehearing.)

      Frank H. Langridge, of Gretna, attorney for plaintiff, appellee.
    Leo W. McCune, of Gretna, attorney for defendant, appellant.
   WESTERFIELD, J.

The plaintiff, Ignazio Cristiana, owned and operated a truck farm adjacent to a dairy operated by the defendant, James J. Sievers. Some of the cows belonging to defendant gained entrance to the .truck farm of plaintiff and damaged his crops to an extent which he claims amounted to $500, and which the trial court recognized to the extent of $300, awarding him a judgment for that amount.

Liability is denied on the ground that the defendant’s place of business was properly fenced, and that the fences were strong enough to confine the cows to defendant’s premises, and would have done so but for the fact that the wire of which the fences were constructed had been cut. Pieces of the wire taken from the opening in the fence were exhibited as evidence below, and several persons, apparently expert in that regard, testified that the wire had been cut and not broken, with the result that an admission was finally made to that effect, though there is no testimony as to who did the cutting.

The question before us, therefore, is whether the owner of a dairy is liable for the damage to his neighbor’s crops due to the entry of his cows on his neighbor's premises through an opening in a fence which had been cut. It was a comparatively new fence, and the evidence satisfies us that it' was of sufficient strength to have prevented the cows from going through it, or trampling it down, but whether new and strong, or old and weak, is immaterial, because the cows did not break through. There is no pretense that defendant was aware of the cut in the fence until after the entry of the cows and the damage to plaintiff’s crops. The plaintiff relies upon articles 2316, 2317 and 2321 of the Civil Code. These articles read:

“2316. Every person is responsible for the damage he occasions not merely by his act, but by his. negligence, his imprudence, or his want of skill.
“2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications. * * *
“2321. The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.’’

We are also referred to the cases of McGuire v. Ringrose, 41 La. 1029, 6 So. 895, and Williams v. Windham, 3 La. App. 127.

The authorities relied on are not in point, for it does not appear that the defendant, or any person for whom he was answerable, was guilty of any negligence. It was not to be expected, nor could the defendant foresee, that some une would cut his fence. He, therefore, cannot be charged with negligence for failure to maintain a sufficient guard oyer the fence to prevent depredation or vandalism. Gilliam v. Texas C. & R. Co., 114 La. 272, 38 So. 166; Frank Rouseo v. Gauche-Connor Co. et al., 8 Orl. App. 216. In the last cited case it was said:

“Ordinary care requires only that precautions ‘be taken against occurrences that can and should be foreseen; but does not require that one should anticipate unusual and improbable, though entirely possible,, occurrences.” See, also, 17 C. J. Verbo “Damages,” sec. 82, p. 751.

Our conclusion is that the defendant is not liable, and the judgment appealed from must be, and it is hereby, reversed, and it is now ordered that there be.' judgment in favor of the defendant, James J. Sievers, and against the plaintiff, Ignazio Cristiana, dismissing plaintiff’s suit at his cost.

ON REHEARING

HIGGINS, J.

This, case comes before us on rehearing. It is a suit for $500 damages alleged to have been sustained by the plaintiff as a result of the defendant’s cattle breaking through a fence and destroying a considerable portion of the crops growing on the plaintiff’s truck farm. The charges of negligence are that the defendant carelessly failed to keep in proper repair the partition fence between the plaintiff’s truck farm and the defendant’s dairy, and in defendant negligently permitting his cattle to roam upon the plaintiff’s truck farm and ruin his, crops.

The defense is that the fence was properly constructed and kept in a good state of repair, and that the fence had been wantonly cut by some one, and that the cattle were thus permitted to gain entrance to the plaintiff’s property, and therefore the defendant was free from fault.

There was judgment in favor of the plaintiff for the sum of $300, and defendant has appealed.

On the original hearing before this court, we were of the opinion that the judgment of the lower court was erroneous and reversed it on the ground that the record contained'' an admission by the plaintiff that the fence had been cut, and that as it was, not shown that the defendant cut or caused the fence to be cut he was not responsible. No. 13,401 of this docket, 130 So. 661, decided November 3, 1930.

In the application for rehearing our attention was directed to the fact that we had placed a broader interpretation upon the language of the admission of the plaintiff than was intended or contemplated by the parties litigant, the admission merely being that the section of wire produced in court by the defendant showed evidence of having been cut, but that the plaintiff did not admit that the opening through which the cattle had gained entrance to his property had been caused by the cutting of the fence and that the wire was from the fence in question, hence we granted a rehearing.

The matter is now before us, on its merits.

It is clear that every person is responsible for the damage he occasions another by his negligence or want of care, and that the owner of an animal is answerable for such damage that it may canse, where through his negligence and carelessness it strays on another’s property. R. C. C. arts. 2315, 2316, 2317, 2321; Williams v. Anse Windham, 3 La. App. 127; McGuire v. Ringrose, 41 La. Ann. 1029, 6 So. 895.

There is no dispute between the parties as to the law applicable, but the question of fact of whether or not defendant was guilty of negligence or carelessness is seriously contested by him.

The record shows that the plaintiff operated a truck farm and the defendant a dairy adjacent to each other. The defendant, some time prior to the alleged trouble, erected, at his own expense, a wire fence of four-inch mesh to the height of forty-eight inches and placed a line or two of barbed wire on the top of it. The plaintiff had planted, on his property, a crop of beans, spinach, corn, and tomatoes, which appears to have been ready for marketing.

On May 25, 1929, at about 9 a. m., two bulls owned by the defendant broke through a portion of the fence and entered the plaintiff’s property but were driven back on the defendant’s property before any damage was done. The plaintiff notified the defendant of the incident and the defendant and his son repaired the fence at the place where the two animals had trampled it down. In the early morning of May 26, 1929, a number of cattle of the defendant were discovered in the bean, spinach, corn, and tomato patches of the plaintiff’s truck farm causing considerable damage. The defendant’s son drove the cattle back on the defendant’s property, and some time between 5 a. m. and 8:30 a. m. the defendant and his son again repaired the fence.

The plaintiff produced six witnesses, some of whom were related to him, who testified that when they arrived on the scene they found the wire fence intact but pressed or trampled to the ground and the crops considerably damaged because of the cattle trampling them, down, eating, and otherwise destroying them.

The defendant produced several witnesses, who testified that when they arrived on the scene they found that the wire fence had been cut, but we note in connection with their testimony that these witnesses did not see the fence until about 10 a. m., and that this was after the defendant and his son had repaired it, and that the defendant and his son admit that they had to cut a portion' of the fence in order to repair it.

The section of the wire fence produced in court undoubtedly shows evidence of having been cut.

The preponderance of the testimony shows that the fence was not cut, but was pushed or trampled to the ground by the cattle at the time they passed over it. This evidence is corroborated by the fact that the two bulls likewise passed over the fence when they gained entrance, the defendant not even contending that on that occasion the fence had been cut.

While the evidence is conflicting as to whether the cattle went through the same place in the fence that the bulls went through, the fact that the bulls were successful in getting through the fence would strongly indicate that the fence was not in the good state of repair and as well constructed as the defendant would have us believe.

Our learned brother below .came to the conclusion that the defendant was guilty of negligence in failing to keep the fence in a proper state of repair and in carelessly permitting his. cattle to roam on the plaintiff’s truck farm, and after a careful reading of the transcript we are of the opinion that the evidence supports his finding.

As to the Quantum the plaintiff claims the following items:

Loss of beans and poles....................... $ 75.00
Loss of spinach______________________________________ 10.00
Loss of corn____________________________________________ 50.00
Loss of tomatoes.____________________________________ 30.00
Damage to ground, account of work and time required to plow and re-plow and harrow and reharrow, time necessary in allowing ground to set before same can be completed for planting__________________________________335.00
Total__________________________________________-_______$500.00

The judge of the lower court allowed the amount claimed for the loss of the first four items and $135 for the fifth item. We are of the opinion that he was correct except in so far as the allowance of $135 for replowing and reharrowing of the land is concerned, and as to that we believe it should be disallowed entirely, because in planting new crops he would have to re-plow and reharrow the land anyhow, and in allowing him the value of the destroyed crops we think he is fully compensated.

For the reasons assigned, our original decree is recalled, vacated, and set aside, and it is now ordered that the judgment of the lower court be amended by reducing the amount thereof from $300 to $165, and as thus amended it is affirmed.

Original decree of this court recalled.

J udgment of lower court amended and affirmed.


author: HIGGINS, J.

text:
    No. 13,494
    Orleans
    GORE & DAUBERT, INC. v. FORREST
    (February 16, 1931. Opinion and Decree.)
    Gerald Netter, of New Orleans, attorney for plaintiff, appellee.
    Eraste Vidrine, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit to recover the sum of $226.10 for damages and depreciation to the plaintiff’s Pontiac automobile alleged to have been sustained as a result of a collision between the plaintiff’s and defendant’s cars at the corner of Constance and St. Joseph streets, this city, on January 20, 1928, at 11:00 o’clock a. m.

The defendant is charged with fault in the following respects:

First, that the plaintiff’s car had entered and pre-empted the intersection at the time the defendant’s car struck it.

Second, that the defendant’s car approached and entered the intersection at an unlawful and excessive rate of speed.

Third, that the defendant was operating his car with defective and faulty brakes.

The defendant denied liability, alleging that the accident was caused solely through the fault of the plaintiff in not respecting the defendant’s right of way under paragraph “c,” section 7,' Traffic Ordinance No. 7490 C. C. S., which provides that automobiles approaching from the right should be granted the right of way; and, in the alternative, that plaintiff was guilty of contributory negligence.

There was judgment in favor of the plaintiff for $126.10, and defendant has appealed.

The record shows that Constance street runs from uptown to downtown and is about forty feet in width. St. Joseph street runs from the river to the lake, intersect-. ing Constance street at right angles, and is .about sixty feet in width. Defendant was driving his Ford car down Constance street, and the plaintiff’s car was on St. Joseph street going in the direction of the river. On the uptown lake corner there is a three-story brick building which extends to .the property line so that the two drivers were unable to see each other until they were very near the corner. Both automobiles were traveling in the center of the streets.- The plaintiff’s car was traveling approximately twenty miles an hour and the defendant’s car approximately thirty miles an = hour. The plaintiff’s car had passed the center of the intersection when the right front side of the defendant’s car struck the right rear wheel and fender of the plaintiff’s car, causing it to overturn some twenty feet from the point of collision.

It appears that after the accident the defendant admitted to the plaintiff’s driver that he was at fault because his brakes were defective. Defendant’s conduct subsequent to the accident in going to the office of the plaintiff company for the purpose of settling the claim is also evidence of his admission that the accident was caused through his fault.

We are convinced that the plaintiff’s car had pre-empted the intersection before the defendant’s car struck it and, therefore, had the right of way and should have been permitted by the defendant to proceed.' Ord. 7490 C. C. S., section 7, paragraph “g.”

The trial judge found that the defendant approached and entered the intersection at an excessive rate of speed of more than thirty miles an hour and that, therefore, he did not have his car under proper control.

If we accept defendant’s testimony that he was only going ten miles an hour as he approached the intersection, it appears to us that if his brakes were not defective he would have been able to have stopped in time to have avoided the accident.

A careful reading of the record convinces us that the defendant was solely at fault in causing the accident in the three respects charged.

As to the quantum, the plaintiff clearly proved that the damage t'o its car was $126.10, which the trial court allowed. Plaintiff also claimed $100 for depreciation on its car. The trial court rejected this item because plaintiff failed to properly prove it. Plaintiff answered the appeal and asked that judgment be amended so as to include this item. "We are of the opinion that the trial court properly rejected the claim for depreciation.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 13,652
    Orleans
    HOLMES ET AL. v. FALSHO REALTY CO., INC.
    (February 16, 1931. Opinion and Decree.)
    Pierre D. Olivier, of New Orleans, attorney for plaintiffs, appellants.
    H. L. Hammett, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a rule taken by the receiver of the Falsho Realty Company, Inc., against the United Motor Car Co., Inc., and P. A. Lavedan to show cause why the motor company should not deliver to the receiver two certain promissory notes of P. A. Lavedan and the proceeds of a third note which was paid by him to the motor company, and why Lavedan should not pay mover after he had obtained possession of the notes as holder and owner thereof upon the mover simultaneously executing to Lavedan a title deed to lots which the Palsho Realty Company, Inc., had agreed to sell to him and for which the said notes were given as a partial consideration.

Lavedan, being merely a nominal party, did not file any return to the rule, as he admits that the proceeds of the note should be paid either to the mover or to the motor company, according to who may be recognized by the court as the owner of the notes.

The motor company in its return to the rule denied the allegations of the mover that the Palsho Realty Company, Inc., was the owner of the notes and that they had been illegally negotiated to the motor company and that the officers of the motor company knew, at the time the company received the notes from Short, .president of the realty company, that Short was not the owner of them and was without authority or right to pledge them as collateral security for his individual indebtedness to the motor company for an automobile purchased by him from it on time.

There is a stipulation between all of these parties in which it is agreed that the whole matter may be finally disposed of in this rule by' having the court recognize either the receiver or the motor company as the owner of the notes, and upon the* payment by Lavedan of the two unpaid notes, that the receiver of the Palsho Realty Company, Inc., shall convey title to Lavedan in accordance with its contract of sale of certain lots by it to him.

There was judgment in favor of the motor company recognizing it as the owner of the notes and ordering the receiver to transfer the lots to Lavedan.

The record shows that John P. Short was the president of the Palsho Realty Company, Inc., and, during the latter part of 1927, purchased a Hupmobile coupe from the motor company for about $1,500, making a small cash payment and giving notes for the balance. He paid one or two notes and then defaulted in the payment of several notes as they matured, and, on October 30, 1927, he owed the motor company $1,145, represented by the unpaid notes. Due to the fact that his creditor was pressing him to settle his account, Short brought to Joseph Ruhl, the (president of the motor company, three promissory notes dated October 17, 1928, for the sum of $100, $150 and $200, .respectively, and due respectively on November 20, 1928, January 20, 1929, and March 20, 1929, signed and endorsed by P. A. Lavedan. Mr. Ruhl first phoned for information to ascertain the credit standing of Lavedan and, this report being favorable, then called Lavedan to find out if his signature to the notes was genuine and if he recognized them as his lawful obligation. Lavedan answered in the affirmative and Ruhl then instructed the bookkeeper of the motor company to credit the notes to Short’s account, which extended his account for six months, without any additional cash payment. In addition to this, Ruhl advanced Short $75 cash, based upon the consideration of the three notes.

It appears that the Falsho Realty Company, Inc., had agreed, in a bond for deed, to sell Lavedan certain lots on account of which Lavedan was making installment payments. On or about October 17, 1928, Short called upon Lavedan and, by reducing Lavedan’s indebtedness to the realty company to the extent of $100, persuaded Lavedan to issue the three notes in question, covering the balance due on the contract. Having obtained possession of these notes, Short then negotiated them to the motor company as payment or pledged them as collateral security for his debt, as above outlined. When the first note of $100 was due, November 20, 1928, Lavedan paid it to the motor company. On January 2, 1929, the motor company received a letter from an attorney demanding the return of the notes as being the property of the Falsho Realty Company, Inc., and, when the second note became due on January 20, 1929, Lavedan refused to pay it until it was ascertained who was the lawful owner of the notes in the controversy between the realty company and the motor company.

On June 5, 1929, the realty company was placed in the hands of a receiver due to gross irregularities on the part of Short and another stockholder, both of whom practically owned the corporation. The motor company refused to surrender the notes to the receiver and the present proceeding resulted.

It is the contention of the receiver that, upon showing that Short was without authority or title to negotiate the notes, the burden was on the holder to prove that it acquired title to the notes as holder in due course for value and that the evidence shows that the mover sustained the burden placed upon him, but that the motor company failed to show that it was a holder in good faith, without notice of the defective title of Short.

It is the contention of the motor company that the receiver failed in his attempt to rebut the presumption that it is a holder in due course of the negotiable paper under the Negotiable Instrument Act, and therefore, that it is entitled to be recognized as owner of the notes as a bona fide holder for value in due course; and further that the evidence clearly shows that the motor company neither had actual knowledge, nor was in bad faith in accepting the notes, and, therefore, it is the lawful owner thereof.

Section 59 of Act No. 64 of 1904, known as the Negotiable Instrument Act, reads:

“Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course. But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.”

Sections 52 and 56 of the same act provide as follows:

"Sec. 52. A holder in due course is a holder who has taken the instrument under the following conditions:
“1. That it is complete and regular upon its face;
“2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
“3. That he took it in good faith arid for value;
"4. That at the time it was negotiated to him he had no notice- of any infirmity in the instrument or defect in the title of the person negotiating it.”
"Sec. 56. To constitute notice of an infirmity in the instrument or' defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

In interpreting these sections, the Supreme Court of this state, in Tyler v. Whitney Bank, 157 La. 249, 102 So. 325, said (syllabus):

“To constitute one a ‘holder in good faith’ he must have had no actual knowledge of any infirmity in note or defect in title of person negotiating it at time of negotiation to him, nor any knowledge of such facts that his action in taking it amounted to bad faith. Negotiable Instruments Law, Sections 52, 56.”

Assuming that the receiver has shown that the title of Short, the person who negotiated the notes, was defective, and that the burden was then on the motor company to prove itself a bona fide holder for value in due course, which is the most favorable view we can take of the situation as far as the receiver is concerned, we will pass to a consideration of whether the motor company is charged with actual knowledge of the infirmity or defect, or knowledge of such facts that its action in taking the instrument amounted to bad faith. I

Lavedan, as a witness for the receiver, testified that, to the best of his recollection, at the time that Ruhl inquired of him, over the phone, if the notes that Short was tendering were the recognized legal obligations of Lavedan, that he told Ruhl that they were and that they had been given to Short in connection with the purchase of certain lots from the Falsho Realty Company, Inc.

Ruhl admitted that Lavedan told him that the notes were given in connection with the sale of the lots from the realty company to Lavedan, but that he was positive that this conversation took place after the payment of the first note of $100 on November 20, 1928, and on the occasion of the maturity of the second note on January 20, 1929,'when payment was requested by the motor company. It appears that on January 2, 1929, the attorney for the Falsho Realty Company, Inc., had written the motor company a letter stating that the notes - had been illegally negotiated to the motor company by Short, because they really belonged to the realty company. Apparently, Lavedan was also notified of the claim of the realty company, because he refused to pay the second note to the motor company, as he was unable to determine whether the realty company, or the motor company, was the lawful owner of the notes.

In this connection the record shows that at the time Short tendered the notes to the motor company he owed them $1,145 and that he was delinquent in his payments, and, as a result of the negotiation or pledge of the notes for security, the motor company deferred his payments for a period of six months and advanced him $75 cash. The receiver’s evidence tending to show that the notes were accepted by the motor company in bad faith consists, principally, of the testimony of Lavedan, as above recited. It "was further shown by the receiver that Short tendered the motor company a check of the Falsho Realty Company, Inc., in payment of one of the early installments on account of the purchase price of his car. It was also shown that Ruhl knew, or should have known, that Short was the president of the realty company and that he was in financial difficulties.

The motor company’s evidence tending to show good faith consists principally of the testimony of Ruhl, as above set forth. It is also pointed out that the Hupmobile coupe was purchased new for $1,500 in the latter part of 1927 and that on October 30, 1928, the balance due the motor company was $1,145 and, hence, it would have been to the advantage of the motor company to have foreclosed its chattel mortgage at that time in order to have prevented further depreciation upon the car, which was being used by Short in the real estate business. The notes in question are ordinary “bearer” notes and made payable to the order of “myself” and endorsed by Lavedan, and are plain notes without anything on their face to identify them as the realty company’s property.

It appears to us that Ruhl was acting in good faith, because he did not accept Short’s word that the notes were genuine, hut called Lavedan to ascertain if this was so. We are also convinced that the conversation concerning the notes being given in connection with the sale of real estate was after the issue was raised by the attorney for the realty company claiming the ownership of the notes. The notes, being “bearer” notes, and not yet matured, were negotiable merely by delivery and any person accepting them in good faith for value would be under no obligation • whatsoever to make inquiry, unless some suspicious circumstances arose in connection with their negotiation. It would have been foolhardy for Ruhl to have tried to protect the motor company by seeing that the notes were genuine and then to have accepted them and place the company at a serious disadvantage by advancing Short .an additional $75 cash, as well as giving him an extension of six months on the then delinquent account, with the resulting depreciation on the automobile during that period, if he knew, or should have known, that the notes did not belong to Short,’but to the realty company.

The judge of the trial court found that the motor company was in good faith and rendered judgment in its favor, and we believe, after a careful reading of the record, that his judgment is correct.

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