text:
    No. 9759
    Orleans Appeal
    FRANK E. HAIGHT v. NEW ORLEANS PUBLIC SERVICE INC., Appellant
    (June 22, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Electricity—Par. 5.
    The failure to insulate electric wires as •required by a municipal ordinance is negligence, and where one, whose occupation brings him in proximity with such uninsulated wires, is shocked and falls from a pole upon which the wires are strung and is severely injured, he is entitled to recover from the party whose duty it was to insulate the wires.
    2. Louisiana Digest — Electricity—Par. 7.
    The fact that the fabric forming the outer coat of insulation of an electric wire is hanging in shreds is .not sufficient to charge an electrical worker with knowledge of the fact that the wire was bare of insulation when it is shown that the fabric constitutes only the outer part of the customary insulation, the inner part of which customarily consists of rubber which is of itself ample protection and when in place completes insulation.
    (Civil Code, Art. 2315. Editor’s note.)
    Apeal from Civil District Court. Hon. M. M. Boatner, Judge.
    This is á damage suit for personal injuries caused by coming in contact with an electric wire, being shocked, and falling to the ground.
    Judgment for plaintiff.
    Defendant appeals.
    Judgment amended and affirmed.
    Guy J. Ray, W. H. McClendon, Jr., H. P. Sneed, attorneys for plaintiff and appellee.
    Benjamin W. Kernan, J. C. Henriques, attorneys for defendant and appellant.
   WESTERFIELD, J.

Defendant appeals from a judgment in favor of plaintiff, an employee of the Cumberland Telephone Co., for' $5000.00 for injuries sustained in a fall from a pole, used jointly by the telephone company and defendant, on August 24, 1923. He claims $23,030.00 itemized as follows:

Loss of wages for one year,___________$ 1,800.00

Loss of earning capacity ________________ 13,230.00

Physical suffering __________________________ 8,000.00

Plaintiff, answering the appeal, asks for an increase of the judgment.

Frank E. Haight, a young man 21 years of age, was employed by the Cumberland Telephone Co. as a groundman. He was working with his fellow-employees under a Mr. Kirn as foreman. They were engaged in removing an old telephone route which had been replaced with a cable along Coliseum street. In doing the work it was necessary to climb the poles, passing between two railway feeder wires of high voltage to get to the top of the pole.

Haight climbed the pole at the corner of Coliseum and Octavia streets to remove a bracket on which the telephone wires had formerly been placed, which was above the railway feeders (wires carrying current to. supply the trolley wires for the operation of electric street cars.) In mounting the pole to go above these wires he stood on the cable, referred to in this record as “the messenger,” which had been recently installed, and endeavored to pass around one of the charged feeder wires; while standing on the messenger which Was grounded, his sleeves touched the feeder, causing him to be shocked and fall to the ground, injuring him severely.

This suit is based upon the alleged negligent construction by defendant of its wire route, and also negligent maintenance of the insulation on its electric conductors, in violation of the city ordinance regulating the construction and maintenance of routes for electric currents. .

Defendant denies the charges of negligence and avers that plaintiff knew that the wires he would have to pass were charged with electricity, and knew that if he came in contact with the charged electric wire while standing on a grounded conductor he would receive a shock, and that, notwithstanding this knowledge, he permitted himself to come in contact with the wire, and either received a shock, or lost his balance and fell from the pole.

The telephone poles are used by the defendant Street Railwhy Company under a contract of joint usage which has been offered in evidence. The following clauses of that contract are of interest:

“The wires and attachments of the Lighting Company (referring to N. O. Ry. and Light Co., a corporate predecessor of defendant) shall be carried above the wires and attachments of the Telephone Company and the wires and attachments of the Telephone Company shall be carried below the wires and attachments of the Lighting Company; excepting as hereinafter specially provided; and excepting that by mutual consent in particular instances the reverse position may be employed. * * *”
“An unobstructed way or climbing space shall be provided and maintained upon the poles so that the employees of either company shall be able to ascend every pole with reasonable safety and convenience up to and through the wires, connections, attachments and structures of the company occupying the lower position on the pole and up to and through the wires and attachments of the company occupying the upper position on the pole.”
“In the case of poles where electric light lines are carried below telephone lines or attachments a horizontal distance of not less than sixteen inches shall be maintained between the pole center and the nearest electric light line, thus providing a clear space of thirty-two inches in width for ascent of the pole through the electric light lines.”

The evidence convinces us that the wires of defendant were not erected in compliance with the above provisions of its contract with the telephone company. We are satisfied that there was not sufficient climbing space to permit workmen to pass through the wires. After the accident the wires were moved further apart and other changes made in the interest of safety. Two witnesses testify that at the time of the accident a space of only fifteen or twenty inches was maintained.

Haight in climbing the pole had to go around the defendant’s wires in order to reach the telephone wires, which in this instance w'ere above the defendant’s wires. There is considerable discussion in the record of whether Haight could or should have used the steps nailed into the telephone pole instead of stepping on the messenger, for it is claimed that the messenger was grounded and the steps were not. On the other hand, it is contended that the steps were iron spikes driven into the pole and that the pole was an old one, the heart of which was probably rotten and wet or damp from recent rains, causing the step and post to- act as a conductor of electricity. It is also contended that the step could not be used because of the position which it was necessary to assume in climbing over the feeder wire. We are unable to determine from the . evidence which course was the wisest and best for Haight to have taken. We are of opinion, however, that he was not guilty of negligence in standing on the messenger since it apparently offered the best chance of avoiding contact with defendant’s feeder wire. Moreover, the witness, Kern, who climbed the pole after the accident to make an in-' vestigation for the telephone company, is shown on a photograph which has been offered in evidence standing on the messenger and he testifies in part as follows:

“Q. Referring back, Mr. Kern, to the step below the messenger that you testified to just now, did you attempt to put your foot on that step to see whether or not you could get a footing between the step and the messenger?
“A. I don’t know.
“Q.* Well, had you done so, would not you recall it, having gone to this very spot to make an examination, and report ’ to your superiors? Would not you recall everything you did there in connection with your examination?
“A. Not any more than any other step, I guess.
“Q. Well, you guess not any more than any other step. I asked, did you make an attempt to see whether or not your -foot would catch on that foot extension, or whatever they call it, pole step — if you went up this pole?
“A. No, I did not make any more inspection of that step than any other step.
“Q. On what were you standing at the time this photograph marked D-l was taken?
“A. On the strand that supports the telephone cable. That is called a messenger.
“Q. Are there any foot-steps on this pole between the one marked with ‘c’ and the one I am presently marking with an T ?
“A. I would judge not, I cannot see it there.
“Q. Was that or was not that particularly the most dangerous thing that you could have done?
“A. What?
‘‘Q. Standing on that messenger, as your photograph shows here, with your hand near the feed wires?
“A. No, sir.
“Q. It was not?
“A. No, sir.”

But Haight stepping on the messenger was not the cause of the accident. He had a right to assume that the feed wire was properly insulated, as provided by the city ordinance specially pleaded herein, unless it is shown that plaintiff knew the wire was bare of the protection which the law requires of defendant and carelessly risked contact with it. It is admitted that the ordinance was not observed and that there was no insulation, but it is insisted that this fact was obvious, and particularly so to one engaged in plaintiff’s occupation and with his experience and mental alertness. It was also argued orally, though not pleaded, that the ordinance could not be observed except by a prohibitive expenditure of money.

The evidence shows that the fabric insulation was clearly and patently defective, hanging in threads in fact. But it is established that the fabric is only a part of the insulation, another part of which consists of rubber which is of itself sufficient protection. It is also proven that wires which have lost both fabric and rubber insulation through deterioration and decay present the appearance of the rubber covering, being so stained by long attachment of the rubber to the wire, and that it is impossible at a distance and difficult nearby' to determine whether the rubber part of the insulation is present or not. Consequently the plaintiff in this case can not be charged with an assumption of a risk of which he could form no appreciation. He saw the fabric hanging from the wire but did not know the rubber was worn off and the wire bare and deadly to the slightest touch. Plaintiff’s sleeve, which he said was damp with perspiration, touched the feed wire and shocked him, causing him to fall. As to the impracticability of complying with the city ordinance, the jurisprudence on this subject is too well settled to admit of discussion. In Babin vs. Sewerage and Water Board, 9767 Orl. App., we said very recently:

“The jurisprudence of Louisiana has been constant that when an ordinance requires a company operating electric wires to insulate them, the failure so to do is negligence which renders the company liable. Dennis Clements and Wife vs. Louisiana Electric Light Co., 44 La. Ann. 692, 11 South. 51; Potts vs. Shreveport Belt Ry. Co., 110 La. 1, 34 South. 103; Herbert vs. Lake Charles Ice Light and Waterworks Co., 111 La. 522, 35 South. 731; Whitworth vs. Shreveport Belt Ry. Co., 112 La. 363, 36 South. 414; Simmons vs. Shreveport Gas Electric Light and Power Co., 116 La. 1033, 41 South. 248; Elias vs. Mayor and Board, etc., of New Iberia, 137 La. 691, 69 South. 141.

In Potts vs. Shreveport Ry., 110 La. 1, p. 7, 34 South. 103, the court said:

“A company maintaining electrical.wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go either for work or pleasure, to prevent injury. It is the duty of the company under such conditions to keep its wires perfectly insulated and it must exercise the utmost care to maintain them in this condition at such places (Joyce Electrical Law, Sec. 445-517), and a company maintaining such wires must see to it that their lines are safe for those who by their occupation are brought in close proximity to them,” quoting 44 A. 692 and other authorities.
“The same authorities hold that the failure to maintain the insulation in good condition is tantamount to no insulation.”

See also Moren vs. N. O. Ry. and Light Co., 125 La. 944, 52 South. 106.

There remains the question of quantum. We have frequently had occasion to reduce as excessive the award of the trial court in personal injury cases because of our conviction that the evidence did not justify the amount of the verdict or judgment. But in this case we think our learned brother of the trial court was too conservative. Plaintiff’s skull, arm and knee cap were fractured. He remained in the hospital five months, during which time his sufferings were extraordinary. His knee had to be forcibly flexed to prevent rigidity of that joint, a most painful procedure. His right wrist is permanently deformed and his knee cap is held in place by wires.

Under the circumstances we think the plaintiff entitled to seven thousand-, five hundred ($7500.00) dollars.

The Cumberland Telephone Company, plaintiff’s employer, intervenes, claiming $571.00 for expenses paid plaintiff under the compensation act. This claim is conceded by plaintiff and will be allowed.

For the reasons assigned the' judgment appealed from is amended so as to increase the amount awarded plaintiff to $7500.00, subject to a deduction of $571.00 to be paid to the Cumberland Telephone and Telegraph Co., intervenor. In all other respects it is affirmed.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9887
    Orleans Appeal
    JULIUS EVANS, Appellant, v. FERDINAND HOLLANDER
    (June 22, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Landlord and Tenant —Par. 65, 66.
    The fact that the balustrade was defective in its construction or decayed is proved by its giving way when plaintiff leaned against it.
    2. Louisiana Digest — Landlord and Tenant —Par. 65, 66.
    A lessor is bound to know whether the building he leases is safe for the purpose for which he leases it and is answerable in damages to a lessee who is injured by a balustrade which has fallen for defect in its original construction or for want of repairs.
    Appeal from Civil District Court. Hon. Wm. H. Byrnes, Judge.
    The plaintiff, lessee of defendant, was injured by a fallen gallery and brought suit.
    There was judgment dismissing plaintiff’s demands as in case of non-suit. Plaintiff appealed.
    Judgment reversed.
    J. A. Woodville, Warren Woodville, attorneys for plaintiff and appellant.
    Scott E. Beer, attorney for defendant and appellee.
   CLAIBORNE, J.

The plaintiff, lessee of defendant, was injured by a fallen gallery and brought suit.

He alleged that he leased from the defendant the property No. 2900 S. Rampart street, which is a two-story building; that on June 21, 1923, while leaning against the balustrade or railing of the front second story gallery it broke and fell and precipitated him to the sidewalk, a distance of about 15 feet; that the breaking of said balustrade was due to its decayed condition; that he was not aware of its condition nor that it was not safe to lean against it; that in falling he struck his head on the sidewalk and was made unconscious; that he was taken to the Charity Hospital and subsequently treated by his own physician for internal injuries, a lacerated scalp, a contusion of the brain, injuries to his frontal bone, and sprains and contusions of his back and left side.’

He claims for the nervous and mental shock _______________________________________$ 500.00

Physical pain __________________________________________ 1000.00

Loss of wages during his illness________ 300.00

Permanent impairment of his health 1500.00

A scar upon his head ________________________ 500.00

Making in all ________________________________$3800.00

The defendant admitted that he was the owner of the property, 2900 S. Rampart, and that the plaintiff was his lessee; that the plaintiff fell from the gallery of said premises and was slightly injured; but he denies that the balustrade of said gallery fell because of any decay or defect, or because plaintiff was leaning against it; but defendant avers, on the contrary, that the balustrade was in a safe and sound condition but had been made unsafe by the action of the plaintiff in removing the balustrade in order to move in some furniture, and replacing the balustrade in an unsafe manner without defendant’s knowledge; that in addition to the above the plaintiff had rushed against the balustrade to throw a bottle at some boys and had thrown all his weight against the balustrade; that the combination of these two acts caused the balustrade to fall and not its decayed or defective condition.

There was judgment dismissing plaintiff’s demand as in case of non-suit.

Plaintiff appealed.

The learned judge of the District Court gave two reasons for his judgment. The first was that he was “yet uninformed as to the real condition of the railing at the time of the accident. If the railing was in bad condition the plaintiff could have established it with clear positive evidence, etc.”

If the balustrade fell while being used in the manner intended by its erection it was of no importance, what the evidence would have shown as to its condition unknown to the lessee. The lessor warranted the solidity of the balustrade for all legitimate purposes.

If it fell it was a presumption, juris et de jure, that the balustrade was not such a one as the law required the lessor to furnish his lessee under Articles C. C. 2692-2693, 1695. Res ipsa loquitur. Breen vs. Walters, 150 La. 583, 91 South. 50.

A few of the late ■ decisions of our Supreme Court will suffice to support this proposition.

“The lessor' (lessee) was not called upon to know, under the circumstances, what the condition of the sills and joists covered by the flooring was nor the condition of the flooring.”
“There is a conflict of testimony as to what the precise cause of the giving way of the flooring was. Whatever may have been the cause, the fact itself remains that the flooring did give way under Mrs. Beecher’s weight, and should not and would not have done so had the flooring and joists been in proper condition.” Schoppel vs. Daly, 112 La. 213, 36 South. 322.
“The owner is bound to know whether his building is safe for the purposes for which he rents it or authorizes its use, or is rotten or unsafe, and is answerable in damages, whether he knows the condition or not, to those who, being lawfully therein, are injured by reason of its de fects, whether of original construction or caused by failure to make proper repairs.” C. C. 2695, Knapp vs. Guerin, 144 La. 881, 81 South. 302; Allain vs. Frigola, 140 La. 982, 74 South. 404; Badie vs. Columbia Brewing Co., 142 La. 860, 77 South. 768; Ciaccio vs. Carbajal, 145 La. 881, 83 South. 73; Breen vs. Walters, 150 La. 578, 91 South. 50; Thompson vs. Commercial National Bank, 156 La. 480, 100 South. 688.
“A lessor is not relieved of liability from the fact that he and a carpenter made an inspection and saw nothing needing repairs." Chaffe & Sons vs. McGehee & Co., 38 La. Ann. 280; Tucker vs. Illinois Central Railway Ca., 42 La. Ann. 114, 7 South. 124; Schoppel vs. Daly, 112 La. 201, 36 South. 322; Boutte vs. New Orleans Terminal Co., 139 La. 956, 73 South. 513; Badie vs. Columbia Brewing Co., 142 La. 860, 77 South. 768; Thomson vs. Cooke, 147 La. 922, 86 South. 332.

2nd. The allegation that the plaintiff had removed the balustrade was not established with sufficient certainty.

This was an appreciation of evidence which should have been decided for the defendant or for the plaintiff.

The only question is, did the plaintiff lessee at any. time remove the balustrade for the purpose of lifting up th,e armoir into the house and replace it in an unsafe condition or weaken it in any manner?

There is some evidence, more or less reliable, that the balustrade appeared to be in bad condition. But the plaintiff testifies as follows:

“Q. Did you know that the banisters were rotten?
“A. No, sir; I would not have leaned on them if I had known it was rotten.”

There is no evidence that the plaintiff knew or suspected it was rotten.

That it Was rotten or insecure is a self-evident proposition since it gave way when plaintiff leaned against it. Res ipsa loquitur. The defendant contends that the plaintiff weighs 190 pounds and that it was negligence on his part to throw his weight against the balustrade. There are others Who weigh as much. A balustrade is made to lean against and it is not improper for even a very heavy man to use it for that purpose.

The defendant argues with much energy that the plaintiff rushed against it. The evidence is the other way. But even had he rushed, it was not negligence on his part so to do. There is much evidence that plaintiff did not have á bottle in his hands .and that he did not throw any.

The defendant’s answer that the plaintiff took down a section of the balustrade to introduce an old-time French double-door armoire upstairs when he moved in, and replaced it carelessly and thus weakened it, is not established. The armoire was an old family relic, 4 feet wide, 8 feet high, and 2 feet deep, with the cornice missing.

Only one witness is examined on that subject; his name is Joe Allen. He says he was passing in front of plaintiff’s place while he was moving in; “he was drawing some stuff up with a rope; it seemed they had one of the sections of the banister taken off; he cannot say what furniture he was moving up; he does not think it was anything as large as an armoir”; of course, the plaintiff could not pull up an old-style French armoire with a rope by himself.

This witness ran a gambling game up to a couple of months ago.

There is no other evidence to support the defendant’s theory. On the other hand, several witnesses deny that the plaintiff moved any part of his furniture over the balustrade or removed any part of it.

They say that plaintiff took the armoir apart and carried it up the stairs. They are Fournet, plaintiff himself, and his daughter.

This fixes defendant’s responsibility.

The plaintiff is a colored man, 49 years old; he is a mattress maker; as a result of his fall he was eight days in the Charity Hospital; after he came out he went to the clinic two weeks; after that he was treated by his society doctor about two months.

Dr. Gallo says he had a lacerated wound of the scalp; the treatment consisted of surgical dressing, iodine and bandage. After that he was well as far as the wound was concerned. He might have had pain from it after that; I don’t know. I don’t think anything serious about it.”

The plaintiff lost much time owing to his incapacity to work. But there is no evidence of his average earnings, and even those are speculative. There is no permanent injury nor any scar.

We think four hundred dollars will compensate him for his loss of earnings and suffering.

It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that the defendant, Ferdinand Hollander be condemned to pay to the plaintiff, Julius Evans, four hundred dollars, with five per cent per annum interest from October 9, 1923, till paid, and all costs of' suit.


author: WESTERFIELD, J.

text:
    No. 9963
    Orleans Appeal
    STATE, EX REL., THEODULE ROUSSEAU, ET AL., Appellant, v. IRBY T. BAUDOIN, CLERK OF COURT, ET AL., Defendant and Appellee
    (June 22, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Laws—Par. 68, 69.
    Act 64 of 1900 fixes the compensation of official stenographers of the Courts of this State outside of the Parish of Orleans and additional compensation cannot be demanded by the stenographers of the several courts however, inadequate such compensation so fixed may be and whatever may have been the custom of litigants acting voluntarily.
    2. Louisiana Digest — Office and Officer— Par. 67, 68.
    One who acts in an official capacity cannot defend an action upon the ground that he has been improperly appointed or qualified.
    3. Louisiana Digest — Mandamus—Par. 14, 23, 90.
    Where a writ of mandamus has been applied for in order to compel a stenographer to file testimony taken by him with the Clerk and the testimony is filed and tráscript of appeal lodged in this court before return day of the mandamus the writ will not issue but the stenographer will be condemned to pay costs.
    Appeal from 24th Judicial District Court for the Parish of St. Charles, L. Robert Rivarde, Judge.
    This is a writ of mandamus directed- to the clerk of court and stenographer to compel them to file testimony in a case. The testimony was filed.
    Writ of mandamus recalled at defendant’s cost.
    Robert J. Perkins attorney for plaintiff, appellant.
    John E. Fleury, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiffs herein applied for a writ of mandamus directed to Irby T. Baudouin, the Clerk and to J. J. Carbrey, the Stenographer of the Twenty-fourth Judicial District Court of the Parish of St. Charles, in order to compel these officials to file immediately all testimony taken in the case of Theodule Rousseau et al. vs. Texas & Pacific Railway Company et al. No. 1332 of the docket of the said Twenty-fourth Judicial District Court upon payment of the fees for transcription of testimony as fixed by Act 69 of 1900.

The law relative to the employment of shorthand reporters, outside of the Parish of Orleans,- is set forth in Act 64 of 1900, which provides that the Clerks of the District Courts are authorized to employ, with the approval of the District Judge, a competent shorthand reporter to report and transcribe' testimony taken in all appealable civil cases before said courts.

Section two of the Act makes it the duty of the Clerk to file in court within 10 days of the taking of the testimony, a transcript of the testimony so reported, printed, typewritten, or written in a legible hand.

Section Three provides that the Clerk of the Court (not the stenographer), shall be entitled to charge for each page of 100 words of testimony transcribed by the shorthand reporter, not more than 15c to be charged as costs.

Section Four makes the Clerk responsible on his official, bond for all' damages as litigants may suffer because of the incompetency or negligence of such shorthand reporters.

Section Five provides that should the Clerks of the District Courts refuse or neglect to employ a shorthand' reporter, as provided by said Act, the judge, in his discretion, may appoint a shorthand reporter, who shall be sworn as an expert to report and transcribe the testimony, and who shall give bond in the sum of $1,000.00, to be approved by the District Judge, and recorded in the Mortgage Books of the parish for which such shorthand reporter is appointed, and who shall receive the same fees (15c per hundred words), as the Clerk- of Court, when the shorthand reporter is employed by that official.

Section Six provides that the Clerks of Court, or the shorthand reporters, when appointed by the Judge, shall be entitled to collect in the manner provided by law for the payment of the costs of Clerks of District Courts «within 10 days after the filing of the evidence; their fees from the plaintiff in the suit on their sworn statement of the correctness of their charges approved by tbe judge to be taxed as part of the costs of. the suit, but uo stenographer shall take testimony in any case unless some party to the suit requests it.

The controversy in the case is due to the custom of paying stenographers, whose compensation is fixed by the Act of 1900, 25c per hundred words instead of 15c as fixed by the Act. This custom is justified by the evident fact that the compensation fixed in the act is inadequate for the character of service required and skill necessary to discharge the duties of that office. But be that as it may, such is the law, and we cannot change it. It is argued that the stenographer in this case is not controlled as to his charges by the Act of 1900 because he has not qualified by giving bond as required by the Act though he has taken the oath of office. This contention is unsound. One who acts in an official capacity can not defend a suit against him upon the ground that he was not legally appointed or qualified. State vs. Hayes, 7 La. Ann. 121; Parish vs. Burton, 35 La. Ann. 521; Macready vs. Schenck, 41 La. Ann. 462, 6 South. 517.

But since the issuance of the preliminary suits herein the transcript has been filed in this court, consequently we can not mandamus defendants to do something which they have already done. We are not concerned as to how or what compensation was paid defendants. Their action in this regard, however, cannot relieve them of the payment of costs. State ex rel. Blum et al. vs. Wells, 111 La. 463, 35 South. 641.

It is therefore ordered that the alternate writs of mandamus heretofore issued be recalled and that defendant, T. J. Carbrey, pay the costs of these proceedings.

Allemot writs of mandamus recalled at defendant’s costs.


author: REYNOLDS, J.

text:
    No. 2195
    Second Circuit Appeal
    EUNICE DEMOUEY NORMAND v. HARRIETT THOMPSON, ET AL.
    (June 23, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Executors and Administrators — Par. 110, 111.
    The fact that a widow claiming $1000.00 under Article 3252 of the Civil Code, had left the matrimonial domicile two years before the death of her husband and had lived apart from him furing that time does not of itself, deprive her of her right accorded by that article.
    2. Louisiana Digest — Succession—Par. 59.
    Under Articles 1422 and 1424 of the Civil Code the defendants having unconditionally accepted the succession of the deceased as his heirs and having themselves placed in possession of his property are responsible to his widow, each for her verile share of the $1000.00 accorded the widow .in necessitous circumstances under Article 3252 of the Civil Code.
    Appeal from the Fourteenth Judicial District Court of Louisiana, Parish of Avoyelles, Hon. S. Allen Bordelon, Judge.
    This is a suit coupled with an attachment brought by the widow in necessitous circumstances against the heirs of her husband to recover the $1000.00 allowed her under the Civil Code.
    There was judgment for plaintiff but dissolving the attachment without damages, and defendants appealed.
    Judgment amended and affirmed.
    Porterie and .Bordelon, of Marksville, attorneys for plaintiff, appellee.
    Couvillon and Bordelon, of Marksville, attorneys for defendants, appellants.
   REYNOLDS, J.

This is a suit by Eunice Demouy Norman against Harriette Thompson Lehman, Rebecca Thompson Saucier, Octavia Thompson Goudeau and Carrie Thompson Robinson to recover $250.00 from each of them with legal interest thereon from judicial demand, as one-fourth from each of them of the widow’s $1000 claim of the plaintiff as widow in necessitous circumstances of Scott Normand, whose succession the above named defendants as his heirs unconditionally accepted.

Petitioner also asked for and obtained a writ of attachment under which a tract of land situated in Avoyelles parish that had belonged to the deceased Scott Normand and of which the defendants had been put in possession was seized.

Defendants answered, admitting that the plaintiff was the widow of Scott Normand as alleged, but denied that she was left in necessitous circumstances, because, as they allege, she was not living with her husband at the time of his death, having abandoned the matrimonial domicile a long time before his death, and was living in New Orleans after her abandonment of the matrimonial domicile. They admit there was no issue of the marriage between plaintiff and Scott Normand, and deny, for lack of knowledge, the allegation of necessitous circumstances.

They allege that by noncupative will, duly executed and probated, Scott Normand constituted them his universal legatees and that by judgment of court they were recognized as such and sent into possession of his property.

Defendants moved to dissolve ^he attachment on the ground that it had been illegally obtained and on trial of the motion it was sustained and the attachment dissolved and the property seized thereunder released but without damages.

From this judgment plaintiff appealed.

The case was tried on its merits and on May 17, 1924, judgment was rendered in her favor against each of the defendants for $197.50 with legal interest thereon from January 2, 1924, and costs.

Defendants moved for a new trial -and it was denied.

Defendants have appealed.

Three of the defendants perfected their appeal; but one of them, Mrs. Octavia Thompson Goudeau, failed to sign the appeal bond, though named as one of the principals therein, and plaintiff claims that this was an abandonment of her appeal.

OPINION

The question to be determined is whether Mrs. Eunice Demouy Normand, as widow in necessitous circumstances of Scott Normand, is entitled to collect from defendants, who unconditionally accepted his succession and were placed in possession thereof as his universal legatees, the $1000 allowed by Civil Code, 3252.

The only defense set up is that at the time of the death of Scott Normand plaintiff and her husband were not living together, but for about two years had been living apart; he at their domicile in Avoyelles parish, and she in. the city of New Orleans.

The evidence shows that the separation was not the result of any misconduct on the part of the wife but rather it was the husband’s conduct that caused her to leave his home and that at the time of his death in New Orleans he was on a mission to his wife to make amends for having driven her from their home and to seek to induce her to return thereto.

In our opinion this case falls within the rule laid down in Coreil’s Estate, 145 La. 787, 83 South. 13, where the court said:

“The fact that a widow, claiming $1000 under Civil Code, Article 3252, had left the matrimonial domicile in this state three years before the death of her husband, and had lived apart from him during that time in another state, does not, of itself, deprive her of the right accorded by that article.”

The evidence shows that the only property plaintiff has is $75 that she received on account of the accidental death of her husband and household furniture valued at $60. These two amounts must be deducted from the $1000 claimed, thus reducing her claim to $865.

Our learned brother of the District Court held her liable for $150 paid for the wrongful death of Scott Normand; but plaintiff did not receive the whole amount paid, $75 of it having been paid to the attorney who prosecuted the claim, and we think the plaintiff should be charged only with the $75 that she actually received, and that therefore the amount of the judgment that should have been rendered against each of the defendants was $216.25.

Plaintiff has answered the appeal and has asked that the amount of the judgment against each of the defendants be increased to $216.25 with legal interest from January 2, 1924.

Plaintiff has a valid claim against the succession of her deceased husband for $1000, Jess $60 as the value of the furniture and $75 received on account of his wrongful death, or $865, and defendants, having unconditionally accepted the succession of Scott Normand as his heirs, and having had themselves placed in possession of his property, are responsible to her each for her virile share of this amount under Articles 1422 and 1424 of the Civil Code.

Defendants insist that damages for wrongful issuance of the attachment should be allowed, but we think the evidence justified the trial court in refusing to sustain the attachment and also in refusing to allow damages on dissolution of the writ.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows:

It is ordered, adjudged and decreed that plaintiff, Mrs. Eunice Demouy Normand do have judgment against Mrs. Harriptte Thompson, wife of Paul Lehman; Mrs. Rebecca Thompson, wife of Jules L. Saucier; Mrs. Octavia Thompson, wife of Jessie L. Goudeau, and Mrs. Carrie Thompson, wife of Willie Robinson, each in the sum of two hundred and sixteen and 25-100 dollars with legal interest thereon from January 2, 1924, until paid, and all costs.


author: REYNOLDS, J. CARVER, J.

text:
    No. 2300
    Second Circuit Appeal
    SION T. BLYTHE v. J. H. ASKEW AND UNION INDEMNITY COMPANY
    (June 23, 1925, Opinion and Decree)
    (July 11, 1925, Rehearing Refused)
    (October 6, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 159, 159 (a).
    Where an injured employee sues under Section 8, Sub-section 1 (c) of the Workman’s Compensation Act No. 20 of 1914, the difference between the wages at the time of the injury and the wages which he is able to earn thereafter, constitutes the basis for compensation, and not the opinion of physicians and surgeons as to the extent of his disability.
    2. Louisiana Digest — Master and Servant —Par. 160 (k).
    The maximum reasonable fee for an attorney to charge in a Workman’s Compensation Case is one-third* of the amount recovered; consequently a contract in which the attorney shall receive fifty per cent will be changed accordingly.
    ON APPLICATION FOR REHEARING.
    3. Louisiana Digest — Master and Servant —Par. 159 (a).
    Section 8, Sub-section 1 (c) of the Workman’s Compensation Act No. 20 of 1914,' applies where there is partial disability to do work of ’ any reasonable character. Therefore, where the injured employee’s foot was crushed thereby causing him to be employed in farm work which pays lower wages Section 8, Subsection 1 (c) applies.
    (The recent amendment of Section 8, of . Act No.. 20 of 1914, is Act 216 of 1924.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit brought by an injured employee for compensation under the Employers’ Liability Act No. 20 of 1914.
    There was judgment for plaintiff for less than amount prayed, for and plaintiff appealed.
    Judgment increased and affirmed,
    Huey P. Long, of Shreveport, attorney for plaintiff, appellant.
    Barnette & Roberts, of Shreveport, attorneys -for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

In this case Sion T. Blythe seeks judgment against J. H. Askew and Union Indemnity Company under the Workmen’s Compensation Act for $18.00 per week for such period as his disability may last, not exceeding 300 weeks, on the ground that on July 7, 1923, he was working for defendant, J. H. Askew, in a hazardous employment at a weekly wage of $56.00, and that on that date he .received an injury by having his foot crushed, thereby ^producing partial disability to do work of any reasonable character.

Defendant denied liability on the ground that it had paid plaintiff’s medical bills to the amount of $199.00 and had paid him $403.71 which, he alleges, was all the compensation due plaintiff.

On these issues the case was tried and there was judgment in favor of plaintiff for compensation at the rate of $6.00 per week for 300 weeks, less the amounts previously paid him. Plaintiff has appealed.

OPINION

Under the evidence it is shown that the plaintiff, at the time of the injury complained of, was earning $56.00 per week, and at the time the suit was brought he was earning $1.50 a day.

The evidence shows that his foot was badly hurt and that the injury was still producing partial disability to do work of any reasonable character.

Plaintiff testified, page 3:

“Q. What did you do from the day you got hurt until the day you filed this suit?.
“A. Well, I haven’t done anything because Dr. Wolfe didn’t never turn me a-loose finally until I come over here.
“Q. Is the foot any better, is it showing any improvement or has it shown any improvement in the last two or three months?
“A. Why it has improved some but then it is still sore in here.
(Page 4)
“.(Witness indicating) I can walk on it a little but it is stiff and still hurts me and as far as my shoes, I have to get two numbers bigger than I used to get on account of them swelling.
“Q. Can you do the heavy work you .used to do; the oil field labor?
“A. No, sir.”

John Lee testified, page 9:

“Q. Is he able to do heavy work?
“A. No, sir; he wasn’t doing any work because he wasn’t able to do the heavy work and that is the reason he wanted to get on the farm, he told me.”

Doctor M. L. Adair testified, page 9:

“Q. Will you read that to the stenographer so that he can put it in the record?
“A. The upper and lateral phase of the left foot show no fracture, orthritis pus on the first metatarsal bone, the arch is fallen, otherwise negative.”

Doctor J. E. Slicer testified, page 11:

“Q. And you estimated the disability to the foot as twenty-five per cent?
“A. Yes, sir; that was on December 20.
* * * *
“Q. Well, will you examine and say how much use he has of it now?

(Witness complying with request of counsel.)

“A. I still think he has twenty-five per cent disability.
(Page 13)
“Q. What causes it, could it be entirely the result of a heavy timber falling on the foot?
“A. Well, an injury like that could cause it.”

The District Judge allowed plaintiff compensation at the rate of $6.00 per week during disability for not over 300 weeks.

We think his finding correct as to the number of weeks .during which plaintiff is entitled to have compensation; but as to the amount of compensation he is entitled to- during this period the Workmen’s Compensation Act (Subsection c of Section 8) provides:

“For injury producing partial disability to do work of any reasonable character, sixty-five per centum of the difference between wages at the time of injury and wages Which the injured employee is able to earn thereafter during the period of disability, not, however, beyond three hundred weeks.”

Hence the amount of compensation plaintiff is entitled to is $18.00 per week during his disability, not exceeding three hundred weeks.

Our learned brother of the District Court concluded that plaintiff’s disability was only twenty-five per cent, as shown by the testimony of Dr. Slicer.

But our Supreme Court, in Sweeney vs. Black River Lumber Co., 150 La. 1061, said:

“The difference between the wages at the time of an injury and the wages which an injured employee is able to earn thereafter constituting the measure of compensation for partial disability under Act No. 20 of 1914, Section 8, Subsection 1 (b), should not be determined upon the opinions of physicians or surgeons as to the extent by which plaintiff’s physical powers or functions have been reduced.”

Under this authority the amount allowed plaintiff must be increased to $18.00 per Week.

Plaintiff has attached to his petition the contract between himself and his attorney, under which it is provided that the attorney shall receive as his fee fifty per cent of the amount recovered in this suit.

In decisions of this court heretofore rendered we have held that one-third of the amount recovered in such a suit was the maximum fee allowable and we see no reason for departing from this rule in the present case.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to read as follows: It is therefore ordered, adjudged and decreed that the plaintiff, Sion T. Blythe, do have and recover judgment against J. H. Askew and Union Indemnity Company in solido for compensation at the rate of $18.00 per week during disability for a period of not exceeding 300 weeks, the first weekly payment beginning July 14, 1923, with legal interest on each payment from the time it became due until paid, less credit for the sum of $403.71 paid March 26, 1924.

It is further ordered, adjudged and decreed that the contract between plaintiff and his attorney be approved to the extent of not exceeding one-third of the net amount recovered under this judgment.

Defendant to pay all costs of this suit.

ON APPLICATION FOR REHEARING

I.

CARVER, J.

Defendant’s able counsel urge that Subsection (e) of Section 8 of the Compensation Act should apply.

It seems clear to us that it cannot.

This subsection begins: “In cases not falling within any of the provisions already made,” etc.

We think the case does fall within a previous provision of the statute.

II.

Counsel also urge that as Doctor Slicer estimated the injury to plaintiff’s foot at twenty-five per cent and as total loss of a foot is only sjxty per cent of wages for 125 weeks, a construction which gives the plaintiff compensation for 300 weeks makes the statute absurd. They imply that compensation should be awarded on the basis of one-fourth the loss of a foot.

We find no warrant in the law for appraising the injury in this manner. The impairment of the foot is not the only thing to be considered. The pain suffered by the plaintiff is an element which cannot be ignored; nor can the fact be ignored that his earning capacity is reduced. If the injury as a whole partially disables plaintiff from doing Work of a reasonable character it falls clearly within the express provision of Subsection (c) of Section 8, which provides:

“For injury producing partial disability to do work of any reasonable character sixty per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not however beyond 300 weeks.”

In the case of small wage earners the weekly compensation under Subsection (d) is greater than under Subsection (c), Subsection (d) allowing 60 per cent of full wages, whereas Subsection (c) allows only 60 per cent of the amount of reduction in wages. In cases where partial disability is only temporary, compensation will not have to be paid for as long a time as under Subsection (d), which fixes the time at 125 weeks.

Subsection (d) applies, we think, to cases where the injury is confined to the loss of a member or part of a member. It does not apply to cases where the member is not only lost or impaired but there is also present some other feature increasing the injury as, for instance, pain, or the presence of a member of little or no use and hampering the injured person in his needful activities.

Where a member is amputated and the amputation is followed by good healing, leaving no other injurious effects than the mere loss of the member, we think the injury is not so great as where the member, is left present but in a condition that hampers its possessor worse than if it were absent.

In Sweeney vs. Black River Lumber Company, 150 La. 1062, 91 South. 511, the Supreme Court held that the measure of compensation for partial disability under the Workman’s Compensation Law should not be determined upon the opinions of physicians or surgeons as to the extent by which the injured party’s physical powers or functions had been reduced but by the difference between the wages at the time of the injury and the wages which the injured employee was able to earn thereafter.

In that case the lower court awarded $11.00 a week, being 55 per cent of $20.00 a week, upon the- basis of the testimony of physicians- that plantiff’s injury had reduced his physical powers or functions one-third. His wages at the time of the injury being $60.00 a week. The court held this method of arriving at the compensation erroneous and increased it to $16.00 a week, based on reduction of earning capacity.

In Dennis vs. Huber, 151 La. 589, 92 South. 126, where the plaintiff had received an injury to his hand and wrist which incapacitated him for heavy work but left him able to perform the duties of a watchman and do other light work, the Supreme Court held that the injury produced partial disability entitling plaintiff to compensation under Subsection (c) of Section 8.

III.

Counsel also argue that the court should not apply Subsection (C) because plaintiff did not show inability to do any'kind of work except heavy oil field labor and was farming at the time of the trial, which, they say, shows that he could do farm labor.

The plaintiff does not say that he can 'do all kinds of farm labor, and we are satisfied he cannot. We do not think it was incumbent on plaintiff to take up the whole category of occupations and testify, that he could not do the work of any or all of those occupations. It needs no witness to satisfy us that a man with the arch of his foot fallen, a joint of it inflamed and the foot subject to painful 'swelling, is partially disabled to do work •of almost any character.

The plaintiff was an uneducated man, having gone to school only through- the fourth grade and is not fitted by training for any but manual labor.

We cannot conceive of any kind of manual labor for which the condition of his foot does not render him' less able than if his foot were in good condition. This is what we understand to be partial disability. If he were rendered wholly unable to work this would not be partial disability but total disability, entitling him to compensation under Subsections (a) or (b), according as the disability was temporary or permanent.

IV.

Counsel also argue that it is not partial disability to do heavy work for which compensation is allowable under the statute but only for partial disability to do work of any reasonable character, arguing then that farm work. They conclude the plaintiff has not brought himself under Subsection (c).

As pointed out above, the Supreme Court decided in the Dennis case that a plaintiff who could, before the injury, do heavy work, but afterwards could only do light work was partially disabled.

The plaintiff in this case was earning $56.00 a week and is engaged now in farm work, some of which he can do and some of which we are satisfied the condition of his foot will not permit him to do, which work, the evidence shows, is valued at $1.50 a day or, say, $9 a week of six days. This would be a reduction of $47.00 a week. If,' though, he could make as much as $26.00 a week, the reduction in his earning capacity would be $30.00 a week, 60 per cent of which would be $18.00 a week, the amount allowed by our judgment. We are satisfied that he cannot earn more than $26.00 a week with his foot in the condition it was at the time of the trial.

Rehearing refused.


author: ODOM, J. REYNOLDS, J.

text:
    No. 2379
    Second Circuit Appeal
    T. C. JAMESON v. STANDARD OIL COMPANY OF LOUISIANA ELLIOTT ELECTRIC COMPANY, Intervenor
    (June 23, 1925, Opinion and Decree)
    (July 11, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4, 4 (d).
    Where in an automobile collision the defendant left .his side of the road and drove over to the other side without any warning, he is guilty of negligence and responsible to- the plaintiff in-damages.

      2. Louisiana Digest — Appeal—Par. 630; Damages — Par. 99.
    ■Where the quantum of damages allowed is clearly larger than the evidence would justify, the appellate court will amend accordingly.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    This is a damage suit for personal injuries received in an automobile collision.
    There was judgment for plaintiff and defendant appealed.
    Judgment reduced and affirmed.
    William H. Cook, of Shreveport, attorney for plaintiff, appellee.
    T. M. Milling and F. L. Hargrove, attorneys for defendant, appellant.
    J. S. Atkinson, Alex F. Smith, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit against defendant to recover the sum of $10,726.50, in which amount he claims he has been damaged on account of injuriés which he received when a light Ford, truck which he was driving collided with a large Packard truck owned by defendant and operated by one of its employees named Causey.

Plaintiff alleges that he is employed by the Elliott Electric Company in the city of Shreveport and that on the 8th day of May, 1924, he was driving a light Ford truck belonging to his employer on Texas avenue in the city of Shreveport when it collided with a truck owned and operated by defendant.

' He alleges that he received serious and permanent injuries on account of said collision, and especially alleges that the collision was caused solely by the gross carelessness, fault and negligence of the driver of defendant’s truck.

The defendant, in answer, admitted the collision, but defends the suit on the ground that its driver was not negligent, and that if it should be’ found that its driver was negligent in the operation of its truck, that his negligence was not the proximate cause of the collision, but that plaintiff was grossly negligent in the operation of the truck which he whs driving, and that his negligence was the proximate cause of the accident.

The District Judge rendered judgment in favor of the plaintiff and against the defendant for $3330.75.

The Elliott Electric Company, which was plaintiff’s employer at the time of the accident and which owned the truck that he was driving, intervened in the suit, setting up that due to the injuries which plaintiff had received it was compelled to pay him the' sum of $364.50 on account of medical and hospital bills and for time lost while he was disabled, and it joined the plaintiff in the suit, asking that there be judgment in its favor against defendant for said sum. The judgment of the District Court allowed it the sum ■ which it claimed.

OPINION

A careful reading of the testimony in this case has convinced us that the driver of the truck belonging to defendant was grossly careless and negligent in the operation thereof.

The plaintiff was traveling along the right side of Texas avenue at a place where the said avenue is 36 feet and 5 inches .wide.

At the point where the accident happened the Standard Oil Company has ‘a station on the opposite side of the street.

There is no question but that the plaintiff was driving at a moderate rate of speed and that he was well over on the right side of the street just previous to and at the time the accident happened.

A Mr. Causey, an employee of defendant, was coming towards the city on the other side of the street in a large Packard truck. It seems that the driver of the defendant company’s truck wanted to turn into the entrance leading to the company’s station, and in order to do so he had to swerve to the left and come over to the other side .of the street in order to make the turn. The truck which he was driving, being a large one and being very heavy, he had to make a considerable swing out into the street. His testimony is conflicting as to why he turned out into the street, for he says at one time that he had turned to the left and was going towards the other side of the street in order to make the swing into the entrance of the station on the right-hand side of the street. At another time he testified that he left his side of the street because there was an automobile parked on that side which he had to get around. Whether he left his side of the street and got over on the other side in order to make the swing into the entrance to the station, or whether he left his side of the street in order to avoid hitting the car which was parked there, we think does not matter.

But the facts are that he did leave his side of the street and get over across the middle thereof on the opposite side where the collision took place.

There were a number of witnesses who testified on the part of the plaintiff, all of whom gave versions of the accident, and all of them stated that the driver of the defendant’s truck swerved over to the opposite side of the street without giving any signal or warning of his intention to make the turn.

The plaintiff’s version of.the accident is as follows:

He says that he and a man named Huff were going out on a job and were running on the right side of Texas avenue or the Greenwood road and that one of the Standard Oil Company’s trucks was coming to town on the opposite side of the road, and just as it got opposite or about even with the alley at the far end of the Catholic Cemetery across the street,

“he crossed the street and came down my side and never gave any signal or anything to let me know that he was going to turn, and being in a short distance, cutting across, I did not have any chance to miss him.”

He was asked what there was on the opposite side of the street, and he said:

“Well, there is a filling station, and I. don’t know what they call it but there is a place, some place, there that- belongs to the Standard Oil Company. I guess it is a warehouse.”

And he stated that there is a driveway leading into this place.

He stated specifically that the driver of the defendant’s truck gave no signal or warning of his intention to turn.

■ R. J. Norton, a witness for the plaintiff, a traffic officer, stated that he did not see the accident but that he heard the crash, and he said' that the little truck, that is, the truck being driven by plaintiff, was on the right-hand side of the street, to his left.

It seems that Norton was in an automobile coming towards the city behind the defendant company’s truck.

He specifically states that plaintiff was on the side of the street' where he should be. He says that the driver of the defendant company’s truck swerved to the left and did not give any signal.

F. S. Hufft, who was on the truck with plaintiff, gave the following account of the collision:

“Well, Mr. Jameson and myself were going from Shreveport in a truck car going out on Texas avenue there by the Standard Oil station or warehouse, and there was a Standard truck — when' we got almost _ to him he cut diagonally across the street and Mr. Jameson hit him. That is about all I know. It was done so quick I didn’t have time to think anything about it.”

And further:

“It was coming towards town and suddenly swerved to the left and got in front of a Ford truck.”

He states specifically that the driver of the defendant’s truck gave no signal or warning before making the turn.

And on cross-examination he said, speaking of the defendant company’s truck:

“It was headed right directly down the street. It was headed over on the left toward the curb, swerved over toward the left curb, and just about straightened his car out when — both trucks were about straight when they collided. Anyway he curved over to the left of the street and started like he was. trying to get back to -his side of the street.”

W. H. Lester, another witness, stated that he was driving a car going towards .town about fifteen or eighteen miles an •hour and that the driver of the defendant company’s truck slowed down to about ten miles an hour and made a swing to the left of the street and that about that time .he heard the crash.

He was asked if tne driver of the truck ¡gave any signal or warning indicating that he was going to swerve and he said:

"No, sir, I did not know that he was going to do that at the time, and, of 'course, I slowed dowh as slow as I could, and about that time I heard the crash.”

A. Y. Deloach testified that he was in the automobile with Mr. Lester.

“Coming along up behind the Standard Oil truck and we were going about eighteen miles an'hour, I guess, and the truck was in ahead of us, probably seventy-five feet, and all of a sudden he just swerved over to the left, and as he did then. I thought he was going to try to pass the truck, as ■he was going pretty fast, couldn’t say how fast, about fifteen miles, and when the truck went to. the left just then I saw the other truck coming down the street, that is, the Ejliott Electric Company’s truck, and it went into it. The other- looked like .he was making a turn to go to the right .side, to go in a gate or something.”

Mr. Causey, who was driving the defen'dant company’s truck, gives the following account of the collision:

“It was coming up over on the right-hand side of the street, coming to the business section of town, and I recollect I was running four or five feet from the curb, and there was a car parked ahead of me and I pulled out in the street to go around the car, and when I pulled out from around this car I saw this Elliott Electric Company’s Ford truck coming down the street, and he was over to his right, and when I pulled out from the curb he pulled out too, and he come out in the middle. of the street and I did too, and I pulled out to. make a swing to go in the Standard warehouse there and when I pulled out he pulled out. to the middle, so he began to do this way (witness illustrating with his hand) zig-zagging, and I thought maybe he Was -”

There were certain measurements made of the street and, according to these measurements and diagrams it is very evident that at the time of the collision the truck which was being driven by the plaintiff was well over on the right side of the street where it had a right to be.

All of the testimony, that introduced by plaintiff and that by the defendant, is to the effect that the driver of the defendant company’s truck left his side of the ■street without any warning and drove over to the other side of the street where the collision took place. This,. we think, was gross negligence.

Defendant urges that the plaintiff was guilty of contributory negligence in that he •was driving at such a high rate of speed that he could not stop his car within a reasonable distance and that if he had been driving at a moderate rate of speed he could have avoided the accident.

The plaintiff himself says that he was driving only about twenty miles an hour and there is no testimony that he Was driving faster than that, except the testimony of Causey, the driver of the other truck; he says that plaintiff was driving at least thirty or thirty-five miles an hour.

We are not convinced that plaintiff was guilty of contributory negligence.

The accident was brought about by the carelessness of Causey in leaving his side of the street and going onto the opposite side without warning when the truck of the plaintiff was approaching.

ON THE QUANTUM OP DAMAGES

The District Judge allowed plaintiff $3330.75, as follows:

Por loss of time ___________________________________$ 330.75

Suffering and injury ____________________________ 2500.00

Damages to nervous system________________ 500.00

Defendant made application for a new trial, which was overruled by the court; but in a written statement filed by the District' Judge he says that he made an error in the amount of damages awarded plaintiff for pain and suffering. He thinks the amount that he awarded was excessive, and we think so, too.

The District Judge stated that, inasmuch as the case was going to this court on appeal, it was not necessary for him to grant a new trial and he would therefore let his judgment stand.

There does not seem to be any complaint as to the amount allowed for other items, and for that reason we think it not necessary to discuss them.

The plaintiff was not seriously injured, and we see no reason to hold that his injuries are permanent.

He says of his injuries that he broke his right hand and that his left arm was cut and that it was necessary to take nineteen or twenty-one stitches to fix it; that it was cut in four places and he thinks to the bone. He says that his knee was mashed and that his neck was hurt and that something hit his nose and made it bleed and mashed it and it was pretty sore for a few days. He was in the sanitarium for one week and one day. He says he still suffers.

Dr. M. J. Rivenbarka said that when the plaintiff reached the sanitarium he was in a shocked condition; that there was a gash on his arm about four inches long with jagged edges, and there was venus blood coming out, apparently one of the veins of the forearm was cut. He says that his recollection is that one of the flexor muscles was partially severed and one of the extensors, but not clear through; that there were several bruises about the body, also a good deal of swelling of the forearm, and that on examination he found there was a little “crepitation by movement.”

It is in evidence that plaintiff received compensation from, an insurance company for seven and a half weeks, and we conclude that he was probably detained from his work that long.

We think an award of $1500 for suffering and injuries is proper in this case.

Por the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows: It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff and against the defendant for the sum of $2330.75, with 5% per annum interest thereon from date of judicial demand until paid and all costs of this suit.

It is further ordered, adjudged and decreed that the judgment in favor of Elliott Electric Company, intervenor, against the defendant, be affirmed.

Defendant to pay all costs of this suit.

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

Defendant asks for a rehearing in this case on the ground that we failed to give proper weight to the testimony of N. C. Causey, the driver of defendant’s truck, to the effect that T. C. Jameson, the plaintiff, was driving at from 30 to 35 miles an hour at the time of the accident; and urges that Mr. Albert P. Garland’s testimony that there were skid-marks on the pavement about the center of the street where the accident occurred approximately 33 or 35 feet long, taken in connection with Mr. Morton’s testimony that a Ford car going. 20 miles an hour can be stopped in its own length and going 30 miles an hour can be stopped in about 35 feet, corroborates Mr. Causey’s testimony that plaintiff was driving at from 30 to 35 miles an hour at the time of the accident.

If thdse skid-marks are circumstantial evidence supporting Mr. Causey’s testimony that plaintiff at the time of the accident was driving at from 30 to 35 miles an hour, it is not sufficient to overcome the well recognized principle of law that the findings of fact of the trial .judge who saw the witnesses and heard them testify and observed their manner of testifying will not be reversed unless manifestly erroneous; nor to overcome the well settled jurisprudence that he who alleges contributory negligence carried the burden of proving it—

Boutte vs. N. O. Terminal Co., 139 La. 945, 72 South. 513.

Buechner vs. City of New Orleans, 112 La. 599, 36 South. 603.

nor to overcome the positive testimony of the plaintiff, T. C. Jameson, and F. S. Huff, that plaintiff, at the time of the accident, was driving at from 18 to 22 miles an hour.

Mr. Causey testified that plaintiff was driving at from 30 to 35 miles an hour and that his car was zig zagging from the time he first saw¿ him approaching to the time of the accident.

These two statements, in our opinion, destroy each other, for we do not think a Ford car can zig zag at the rate of 35 miles an hour without zig zagging off the .street.

Causey further testified that at the time of the accident his car was standing still.

W. H. Lester, T. C. Jameson, F. S. Huff and A. Y. Deloach testify that Causey’s truck was not standing still at the time of the accident. The consensus of their testimony is that at the time of the collision he was driving at from 10 to 12 miles an hour.

Hence if Causey’s testimony is corroborated to any extent by -that of Mr. Albert P. Garland it is flatly contradicted by the testimony of the last four above named witnesses.

Causey further testified that while his •truck was standing still he saw plaintiff’s car zig zagging as it approached at a rate of from 30 to 35 miles an hour and that when it glided into his truck he was not at all excited.

We do not think the driver of a moving car can accurately judge tlie speed of an approaching car.

Besides, Causey testified, page 62:

“Q. You do not mean to say that he was zig zagging 30 or 35 miles an hour?
“A. No, sir.”

For these reasons the application for rehearing is refused.


author: CARVER, J.

text:
    No. 2411
    Second Circuit Appeal
    STATE, EX REL., COLONEL JACKSON v. E. P. MILLS, JUDGE, ETC.
    (June 23, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

      1. Louisiana Digest — Landlord and Tenant Par. 121.
    Under Revised Statutes, Article ■ 2157, the right of the defendant to a suspensive appeal in an ejectment proceeding depends, not on the defense as proven, hut solely on the defense as set up. It is only when a proper defense is set up which, in the opinion of the trial judge, is not proven, that a suspensive appeal by a tenant is both permissible and necessary.
    2. Louisiana Digest — Pleading—Par. 112, 113.
    In a suit by a landlord to eject a tenant where the proof shows the relation of landlord and tenant, the defendant cannot set up any title to the property while he is occupying it as. a tenant.
    This is an application for a mandamus to compel the District Judge to grant relator a suspensive appeal from a judgment rendered in favor of Elorsheim Brothers Dry Goods Company, Limited, in a suit brought' by it to eject relator from certain premises alleged to have been leased by it to him for the year beginning November 1, 1923, and ending October 31, 1924. The alternative writ of mandamus herein issued is recalled and plaintiff’s application rejected.
    George Thurher, of Shreveport, attorney for plaintiff.
    Judge E. P. Mills, of Shreveport, defendant.
   CARVER, J.

This is an application for a mandamus to compel the District Judge to grant relator a suspensive appeal from a judgment rendered in favor of Elorsheim] Brothers Dry Goods Company, Limited, ir a suit brought by it to eject relator from certain premises alleged to have been leased by it to him for the year beginning November 1, 1923, and ending October 31, 1924.

In answer to the rule to show cause why a mandamus should not issue, the District Judge returns that he refused a suspensive appeal because the defendant in the ejectment suit did not set up a special defense as required' by Section 2157 of the.Revised Statutes or make the affidavit required by that section.

The District Judge also says that in his opinion:

“The plaintiff established the essentials of its case beyond all question and that your respondent found under the evidence that the defendant was a tenant of plaintiff; that the lease had terminated; that notice to vacate had been given according to law and that defendant had failed to deliver the premises and that your respondent regarded the allegations of Article 10 as being simply an elaboration or enlargement of defendant’s denial of his tenancy ^ about which there was no doubt' in the mind of your respondent.”

The defense set up by relator in the ejectment suit was as follow's:

10.
“Further answering, defendant shows the court that in the tract of land mentioned in paragraph 3 of the petition there are 270 acres more or less; that the same is a part of a tract of 400 acres more or less, all in one body, and ail under one fence, which has been in the possession of defendant and his four brothers and sisters as owners thereof for more than two years; that it has been in possession of defendant and his said brothers and sisters and their father as owners for about nine years, prior to the said two years, and that it was in possession of his father as owner during the lifetime of his mother for many years prior to the nine years mentioned, and is now in possession of your petitioner and his brothers and sisters aforesaid as owners.
11.
“Further answering, defendant shows the court that he has lived on said property all his life; that some years bach the said plaintiffs, or some one on their name, made demand of his father for the said property or part of it, and his father refused to recognize their rights in any way. Defendant shows that he and his family aforesaid are negroes of little education, and that he agreed to pay to Florsheim Brothers a nominal sum merely for the purpose of 'avoiding trouble with white people, and did not enter into a lease or intend to do so, nor did he recognize the right of the said Florsheim Brothers or any one else that they were owners of any of the said 400-acre tract of land.”

Revised Statutes, 2157, reads as follows:

“No appeal from any such judgment shall suspend execution unless the defendant .has filed a special defense, supported by his oath, that all the facts contained in his answer are true, and entitle him to retain possession of the premises, and unless, further, he give bond with good and sufficient security for such damages as the appellee may sustain.”

OPINION

I.

The right of a defendant to a suspensive appeal does not, we think, depend to any extent on the opinion of the District Judge as to the merits of the case.

That right, so far as it depends on the defense, is so dependent not ■ on the defense as proven but solely on the defense as set up.

If suspensive appeals were only allowable when the defense of a tenant was proven, it would never be allowed at all because if the defense set up were a good defense and were proven, then the defendant would be given judgment in the lower court and would not have to appeal.

It is only when a proper defense is set up which, in the opinion of the trial judge, is not proven that a suspensive appeal by a tenant is both permissible and necessary.

II.

We express no opinion as to whether relator should be denied that right to a suspensive appeal merely because he failed to make affidavit that the facts set up by him and sworn to as true entitled him to such appeal if the facts so set up and sworn to did in our opinion so entitle him.

III.

But we think the facts set up and the defense made in the ejectment suit by relator did not entitle him to a suspensive appeal, and upon this ground w’e think the judge correctly refused to permit such appeal. In the opinion of the District Judge the defense' was a mere elaboration or enlargement of* defendant’s denial of his tenancy. We express no opinion as to whether relator would have been entitled to a suspensive appeal if we regarded his answer in the ejectment suit as really a denial of the tenancy as did the District Judge. We do not so regard it, though. In the ejectment suit plaintiff alleged in paragraph .4:

"That your petitioner verbally leased said property to said defendant during the year 1923 for a term beginning November 1, 1923, and expiring October 31, 1924,’ for an annual rental of $100.00, payable November 1, 1924.”

Relator’s answer to this was:

“The allegations of this paragraph aref denied insofar as they refer to the sum of $100.00 being rental under a lease. De-; fendant shows that the said sum amounts to less than 40c per acre.”

■ In paragraph 11, as shown above, he states that he agreed to pay $100.00,

“merely for the purpose of avoiding trouble with white people, and did not enter into a lease or intend to do so, nor did he recognize the right of the said Florsheim Brothers or anyone else that they were owners of any of the said 400-acre tract of land.”

Relator did not say what trouble was threatened, and we think it fair to infer that the only trouble was a fear that plaintiff in the ejectment • suit would sue him for the property.

The allegations as a whole amount, we think, to an admission that he agreed to pay Florsheim Brothers Dry Goods Company, Limited, $100.00 for the privilege of occupying the premises for a period of one year undisturbed by them. His further statement that he did not intend to enter into a lease or to recognize its title did not detract from the force of the fact that in so promising he did recognize its title and did become its tenant. By such agreement he induced them to hold off from suing. When confronted with the necessity of giving up the property, standing suit about it or paying for the privilege of further occupying it, he deliberately chose the last of the three alternatives. This choice was in fact and in law a recognition of his adversary’s title and made him his adversary’s tenant, with the legal effect that he' could not dispute that title while keeping the property.

We do not mean to imply that if relator has any title to the property (which, how.ever, he does not set up), he is estopped from asserting it in a proper proceeding; but wte hold that he cannot do so while occupying it as a tenant.

For these reasons the alternative writ of mandamus herein issued is recalled and ■plaintiff’s application rejected.


text:
    No. 2263
    Second Circuit Appeal
    H. T. COTTAM & CO., LTD., v. O'SHEE BROS. COFFEE CO. Miss Susie Afeman, third opponent, Intervenor.
    (June 27, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Privilege—Par. 2, 3.'
    Privileges do not arise as a matter of equity but only as a matter of law.
    2. Louisiana Digest — Interdiction and Interdicts — Par. 18, 19, 20.
    In view of Civil Code Articles 415 and 338 the curator of an interdict has no authority to continue a mercantile business for the account of the interdict.
    3. Louisiana Digest — Privilege — Par. 1, 2, 3.
    One employed by the curator of an interdict to carry on the business of the interdict has no privilege on the funds of the business because the curator is not authorized in law to conduct the business.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. H. L. Hooe, Judge.
    This is a suit in which the point” at issue depended upon the rights which the intervenor had on the property of the defendant, seized by the plaintiff- under a writ of fieri facias.
    There was judgment recognizing intervenor’s claim and ordering it paid out of the proceeds of the.seized property in preference to the plaintiff’s claim.
    The plaintiff appealed.
    Judgment' reversed.
    B. T. Dawkins, of Alexandria, attorney for plaintiff, appellant.
    G. A. Yoltz, of Alexandria, attorney for defendant, appellee.
   REYNOLDS, J.

Nicholas D. O’Shee conducted a retail coffee business in the city of Alexandria under the name of “O’Shee Bros. Coffee Co.,” and employed Miss Susie Afeman as a clerk in his store.

Nicholas D. O’Shee •was formally interdicted on November 10, 1920, and Patrick J. O’Shee duly appointed his curator.

Patrick J. O’Shee as curator assumed to continue for account of the interdict the business theretofore carried on. by Nicholas D. O’Shee and retained the services of Miss Susie Afeman as a clerk in the store at a salary of $50 per month.

On April 4, 1922, H. T. Cottam & Co., Ltd., obtained judgment in the District Court of Rapides Parish against Patrick J. O’Shee as curator of Nicholas D. O’Shee for $1638.66 and legal interest thereon from November 1, 1921, as and for the price of merchandise by it sold and delivered to Nicholas D. O’Shee before his interdiction.

A writ of fieri facias was issued' on this judgment and under it the sheriff of Rapides parish seized as the property of the interdict the stock of merchandise and furniture and fixtures of the business' of O’Shee Bros. Coffee Co.

Thereupon third opponent, Miss Susie Afeman, filed her petition of intervention in„ the suit, setting up that O’Shee Bros. Coffee Co. was indebted to her in the sum of $600 for salary as clerk at $50 per month from July 1, 1921, to May 1, 1922, that the nature of her claim gave her a privilege on the property seized, and asking to be paid out of the proceeds of the sale thereof by preference over the seizing creditor.

By amended petition she alleged that she was employed by O’Shee Bros. Coffee Co. as clerk and rendered services in that capacity at $50 per month from May 1, 1921, to May 1, 1922, for which she had not been paid, and that she had a privilege on the property seized and was entitled to be paid out of the proceeds of the sale of the seized property in preference to the seizing creditor and asked for judgment accordingly.

No defense was interposed by O’Shee Bros. Coffee Co. and judgment against it in favor of intervenor was rendered by default.

The minutes of court show that an answer to the intervention was filed by H. T. Cottam & Co., Ltd., on October 17, 1922. We do not find the answer in the record, but in the opinion of this court on the former appeal herein it is stated:

“The plaintiff company, among other defenses, denies the existence of the debt, and, of course, the third opponent carried the burden of establishing it.”

The case Went to trial between third opponent and H. T. Cottam & Co., Ltd., and there was judgment in favor of third opponent, recognizing her claim and ordering- it paid out of the proceeds of the sale of the. seized property in preference .to the seizing creditor.

From this judgment H. T. Cottam & Co., Ltd., appealed to this court which reversed the judgment of the District Court on a question of admissibility of evidence ánd remanded the case for a new trial.

The case was tried anew in the District Court and that court, on October 31, 1923, again rendered judgment recognizing intervenor’s claim and ordering it • paid out of the proceeds of the seized property in preference to H. T. Cottam & Co., Ltd.

And from this judgment H. T. Cottam & Co., Ltd., has appealed to this court.

OPINION

In the District Court the seizing creditor urged that there was mo contract between intervenor and the curator of Nicholas D. O’Shee for services in virtue of which she could have, as against it, a privilege on the seized property.

We are satisfied that there was a contract of employment between the curator and Miss Susie Afeman for her services at $50 per month and that she did render the services and has not been paid therefor.

But counsel for H. T. Cottam & Co., Ltd., urges in his brief in this court that the curator was without authority to carry on the business of the interdict indefinitely and certainly had no authority to employ intervenor as a clerk from May 1, 1921, to May 1, 1922, at a salary of $50 per month, and that no privilege could arise under that employment that would entitle her to be paid in preference to H. T. Cottam & Co., Ltd.

Counsel for third opponent objects that this defense was not raised in the court below and says that it cannot be urged for the first time in this court.

It was incumbent on plaintiff to prove not only that the curator had employed her to render specific services at a certain salary and that she had rendered the services and not been paid therefor, but to prove, also, that the curator was legally authorized to make the contract on behalf of the interdict.

Civil Code, Article 415, provides:

“The person interdicted is, in every respect, like the minor who is under a tutor, both as it respects his person and estate; and the rules respecting the tutorship of the minor, concerning the oath, the inventory and the security, the recording of the legal mortgage, the mode of administering, the sale of the estate, the commission on the revenues, the excuses, the exclusion or the deprivation of the tutorship, the mode of rendering the accounts, and the other obligations apply with respect to the curatorship of the person interdicted.

And Section 338 provides:

“Within a month after the closing of the inventory the tutor must cause the movable effects of the minor to be sold unless he be authorized by the judge to preserve them in kind, in whole or in part, in consequence of the time approaching for the emancipation of the minor, or for any other sufficient reason; in which case the tutor shall return to the minor the estimated value of those movables, which he cannot restore in kind, or which he has suffered to deteriorate through want of care.”

We know of no law authorizing a tutor to continue a mercantile business for account of the minor,

It follows, therefore, that Patrick J. O’Shee as curator of Nicholas D. O’Shee, was without authority to continue the business of the interdict, and hence was without authority to enter into any contract with intervenor for her services whereby she could acquire a privilege on the property seized for unpaid salary.

We are satisfied that intervenor rendered faithful services to the business carried on by the curator under the name of O’Shee Bros. Coffee Co., and that those services were well worth the amount claimed; but privileges are creatures of the law and can only exist where the law provides for them. They do not arise as a matter of equity but only as a matter of law, and there being no law according a privilege to intervenor to secure the payment of the salary earned by her as against the seizing creditor in this case her claim of a privilege must be denied.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed, the demands of third opponent rejected and her petition of intervention as against H. T. Cottom & Co., Ltd., dismissed at her costs.


text:
    No. 2107
    Second Circuit Appeal
    WATSON TIE COMPANY v. W. A. WALMSLEY, ET AL.
    (June 27, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 431, 729, 736.
    Where the record of testimony taken on the trial of an exception to the jurisdiction is incomplete the appellate court will, in the interest of justice, remand the case to the district court for addition to the record of the testimony on the trial of the exception or for further testimony which may he necessary to be taken to complete the record.
    Appeal from Eleventh Judicial District Court of Louisiana, Parish of Natchitoches. Hon. J. W. Jones, Jr., Judge:
    On motion to remand filed by the defendant appellant, case is remanded to the district court for further proceedings.
    Breazeale & Breazeale, of Natchitoches, attorneys for plaintiff, appellee.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellant.
   REYNOLDS, J.

In this case appellant has filed a motion to remand the case for the completion of the record by having added thereto the testimony adduced in the lower court on the trial of the question of the domicile of defendant, W. A. Walmsley.

To this motion is attached the affidavit of the trial judge to the effect:

“I further certify that a plea to the jurisdiction was filed in said case on the part of W. A. Walmsley, that it was regularly fixed for trial and that on the day of trial defendant introduced testimony to sustain his plea, that the testimony was reduced to writing by the court stenographer.”

There is also attached the affidavit of Deputy Clerk .of Court O’Quinn, in which he says that he has made a careful search of all note books on file in his office containing the original stenographic notes of evidence taken on trial of cases ,in the court of which he, is a deputy clerk, and that he could not find any stenographic note of evidence taken on the trial of the exception to the jurisdiction in this case and that the testimony was never reduced to writing.

Under this showing and on the authority of Trudeau vs. Railroad Company, 15 La. Ann. 717, we think the case should he remanded in order that the evidence taken on the trial of the exception may be added to the record.

In the event the missing testimony cannot be found, on the authority of Nichols vs. Harris, 32 La. Ann. 646, the case should be remanded for the taking of testimony on the question of defendant, Wm. A. Walmsley’s, domicile at the time of the filing of this suit in the District Court.

Por these reasons it is ordered, adjudged and decreed that this case be remanded to the District Court of the parish from whence it was appealed for addition to the record of the testimony taken on the trial of the exception of W. A. Walmsley to the jurisdiction of the court; and in the event this testimony cannot be added to the record because it cannot be found, then the case is remanded to the District Court for the taking of evidence on the issue raised by the exception to the jurisdiction.