author: McGREGOR, J. CULPEPPER, J.

text:
    No. 3966
    Second Circuit
    DURRETT v. EICHER-WOODLAND LBR. CO., INC., ET AL.
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Granted.)

      Sidney I. Poster, of Leesville, attorney for plaintiff, appellant.
    Pujo, Bell & Hardin, of Lake Charles, and White, Holloman & White, of Alexandria, attorneys for defendants, appellees.
   McGREGOR, J.

The defendant, EicherWoodland Lumber Company, Incorporated, is a commercial corporation organized under the laws of the state of Louisiana with its principal place of business and legal domicile at Alexandria in the parish of Rapides, in this state. It is engaged generally in the sawmill and lumber business. The defendants, B. J. and J. R. Sharp, residents of the state of Louisiana, with their domicile at Laurel Hill, in the parish of West Feliciana, were under contract with Eicher-Woodland Lumber Company, Incorporated, in the latter part of 1928 and the first of 1929 to cut and deliver certain logs in Louisiana and Mississippi in the form of lumber. In carrying out this contract the Sharps employed from twenty-five to thirty men at Laurel IRU, Louisiana, and on about January 1, 1929, they took these same men over the line into the state of Mississippi near the town of Woodville to convert a tract of timber belonging to E'icher-Woodland Lumber Company into lumber. Among these employees of the Sharps was Monroe Durrett, a son- of the plaintiff, who worked for the Sharps in both states. It appears that the employment, as well as the nature of the work, was the same in both states and that the relation of the Sharps to the Eicher-Woodland Lumber Company was that of independent contractor.

On or about December 26, 1928, B. J. Sharp stopped at the home of the plaintiff, D. W. Durrett, in this state and during the conversation had it was agreed that if the plaintiff would come where the Sharps were working he would be given employment of some kind. Plaintiff’s son, Monroe Durrett, was given employment on that same occasion and went at once to Laurel 1-Iill, Louisiana, and began work on December 29, 1928. The plaintiff, D. W. Durrett, accompanied his son to Laiyel Hill on this occasion and again saw B. J. Sharp, who asked him when he would be ready to come over and begin working for him. The answer was that he would come about January 14th. This conversation was heard by plaintiff’s son, Monroe Durrett, and by M. T. Barnidge. A few days afterwards, early in January, Monroe Durrett moved over into Mississippi with the rest of the Sharps’ crew and continued his employment there, and B. J. Sharp communicated with the plaintiff, D. W. Durrett, either by mail or wire and told him to come on over to Mississippi and go to work. D. W. Durrett answered by mail or wire, saying that he needed money to make the trip, so that Sharp immediately sent him $10 by wire to a bank. This was not received by the plaintiff. On or about January 14, 1929, Monroe Durrett was called back to Louisiana on account of the death of his wife’s mother. B. J. Sharp on this occasion told Monroe Durrett to tell his father, plaintiff herein, to come immediately and begin work according to his agreement. This was after the $10 had been' sent for plaintiff’s expenses but which was not received by him. On the night of January 17, 1929, plaintiff arrived in Mississippi with his son at the Sharps’ place of operations and went to work the next morning as sawyer in the sawmill. He worked only a few days, for on January 21, 1929, he was injured in his right hand by falling on the saw which he was operating. He could work no more and as soon as he was able he returned to his home in Louisiana.

While the Sharps were operating in Louisiana for Eicher-Woodland Lumber Company this company carried employers’ liability insurance on all men working for them, including those that were working for the Sharps. There is no evidence to show that the Sharps made a new contract with their men or with Eicher-Woodland Lumber Company, Incorporated, when they went over into Mississippi to continue their operations, but the employers’ liability insurance was canceled. Eicher-Woodland Lumber Company qualified to do business in Mississippi under the laws of that state and took out two blanket policies of insuranee — one against liability and the other known as workmen’s collective insurance for not more than twenty-six weeks. On May 31, 1929, T. H. Mastín and Company, who wrote both policies, paid to plaintiff $332.70 as a payment due under what is termed the collective insurance and $200 as compromise settlement of any claims that plaintiff might have on account of negligence. These two amounts were accepted and in the written receipts it is declared that the amounts named were in full payment for all claims that the plaintiff might have on account of the injury he had received to his hand. Notwithstanding this attempted settlement, plaintiff evidently decided that he had not received all that he was entitled to, for on May 12, 1930, he filed this suit under the Employers’ Liability Act of Louisiana, for 65 per cent of $30 per week for a period of 150 weeks for the total loss of the use of his right hand, plus 50 per cent as a penalty for making a lump sum settlement without authority of the court, less a credit of' what had been paid him by the defendants. In addition to this demand he also asked judgment for a reasonable sum to cover the necessary hospital expenses.

All the defendants answered and the defense made is that the injury occurred in Mississippi, that the contract of employment under which the plaintiff was working when he was injured was made in that state and under its laws, that all liability on account of plaintiff’s injury is governed by these laws, and that, therefore, the receipts signed' by the plaintiff estopped him from making any demand for compensation under the Employers’ Liability Act of Louisiana (Act No. 20 of 1914, as amended). Upon trial there was judgment in the lower court for the defendants, rejecting the plaintiff’s demands and from that judgment he has appealed. . .

’ Since the filing of this • suit and trial, in the lower court, and since the appeal was lodged in this court, the defendant EicherWoodland Lumber Company, Incorporated, has been placed in the hands of a receiver by an order of the Ninth Judicial District Court, in and for the parish of Rapides, and John T. Powers, a resident of Rapides parish, has been appointed receiver. Upon proper application to this court the said John T. Powers, in his capacity as receiver, has been made party defendant in this suit and the plaintiff has been authorized to prosecute the appeal .against the said receiver.

OPINION

It is admitted by all the defendants that if plaintiff had received his injury in the state of Louisiana, the Employers’ Liability Act.of this state would apply and the plaintiff would have a right of action against Eicher-Woodland Lumber Company, Inc., and also against the Sharps. The question, therefore, that must be determined is as to whether the plaintiff has a right of action under this law when the work was performed over across the line in the state of Mississippi. It is contended by the defendants that plaintiff’s contract was made in the state of Mississippi, and this fact is urged as one of the reasons why the laws of that state should govern all rights arising on account of the injury received. With reference to the place where the contract of employment was entered into, the following facts are established by the evidence:

B. J. Sharp was at the plaintiff’s home in Louisiana on December 26, 1928, and employed one qf plaintiff’s sons, Monroe Durrett, to begin work at once at Laurel Hill, Louisiana, and at the same time it was agreed that the plaintiff would begin work as soon as possible. This son arrived in Laurel Hill, Louisiana, on December 29th and began work pursuant to the contract made on the 26th at plaintiff’s residence. If plaintiff had been ready he would have started work at the same time and place, for, as just stated above, on December 2'6th at his home in Louisiana it was agreed between .the plaintiff and the same B. J. .Sharp that he, the plaintiff, would come either to Laurel Hill, Louisiana, or to Wood-ville, Mississippi, to begin work for the Sharps. B. J. Sharp at that time learned that plaintiff was a competent sawyer and he was subsequently assigned to that work by the said Sharp because of the information received at this time as to his qualifications. In the early part of January, Sharp wrote a letter to plaintiff urging him to come at once. To this letter plaintiff replied that he needed expense money in order to make the trip to Mississippi. This money was sent but plaintiff never received it, and as a consequence his going was delayed, and on January 14th Sharp sent word to the plaintiff by Monroe Durrett to hasten his coming as work was ready for him. On this date plaintiff’s son came to Louisiana to attend the funeral of his wife’s mother. Plaintiff took advantage of his son’s presence in Louisiana in his automobile to return with him to Mississippi and on January 17th he arrived at Sharp’s mill with his son and began work on the next morning as sawyer. Nothing was ever agreed on as to wages until after the accident. This summary of the testimony convinces us that the actual agreement between the parties took place at the home! of the plaintiff in Louisiana. Every communication after that, whether by wire, mail or personal messenger, had reference to the carrying out of the agreement made in Louisiana at plaintiff’s residence, on December 26, 1928. Prom that time the Sharps were depending on the plaintiff, while plaintiff was making all his preparations to. go in accordance with the agreement. So that, under the evidence there can be no doubt as to the contract of employment having been consummated in Louisiana. But the defendants contend that even though it be held that the contract itself was made in Louisiana, it was made by the Sharps as independent contractors for service to he rendered in the state of Mississippi to Eicher-Woodland Lumber Company, Incorporated, who had qualified under the laws of that state to do business there, and that, therefore, all parties to the contract will be governed by the laws of Mississippi instead of by the Employers' Liability Act of Louisiana. It is admitted that there is no employers’ liability law in the state of Mississippi and that under the law of that state the receipts signed by the plaintiff for the money received by him are binding and that he has no right to demand any further amount in any kind of suit in that state under its laws. It is admitted further that no sanction of any court was sought or had in making the compromise settlement that was made and that if the Employers’ Liability Act of Louisiana is applicable in this case, the plaintiff has a right to prosecute this suit in spite of the settlement and signed receipts.

In determining whether the Employers’ Liability Act of Louisiana or the laws of the state of Mississippi shall prevail in this case, our finding that the contract was actually consummated in Louisiana and the fact that all the parties concerned are residents of and domiciled in Louisiana must he considered. Whatever profit might be made in the performance of the contract went directly to enrich and benefit the citizens of Louisiana and a corporation chartered under the laws of Louisiana with its domicile in the state. Eicher-Woodland Lumber Company, Incorporated, employed the Sharps as independent contractors to convert its timber in Louisiana and Mississippi into lumber. In whichever state the work was performed under the contract the obligation toward the Sharps was the same. An independent contractor is not entitled to compensation, but whatever rights he may have under his contract made in this state he carries with him wherever he goes. One of those rights is that his men shall receive compensation under the Employers’ Liability Act from his employer. Suppose a tract of timber belongs to Eicher-Woodland Lumber Company, Incorporated, located in both states and the mill site were in both states, and that on account of this fact the state of Mississippi required Eicher-Woodland Lumber Company, Inc., to qualify under its laws to operate and do business in that state. Would that fact deprive the workmen of the benefits of compensation in cases where the injuries occurred over the line in Mississippi? We think not. The employment of Louisiana citizens in Louisiana by other Louisiana citizens to work in Mississippi does not deprive the employee of any of the stipulations of the contract of employment. Every contract contains certain agreements and stipulations and these are binding without regard to the place where the work is performed. Under our law in every contract of employment made with reference to a hazardous occupation, it is presumed that all the parties thereto have elected to be subject to all the provisions of the Employers’ Liability Act unless it is expressly stipulated to the contrary in the manner provided by law. So that all acts under this law are ex contractu and not ex delicto. When Eicher-Woodland Lumber Company, Inc., contracted with the Sharps to convert its timber into lumber there was presumed to be written into the contract that the said Eicher-Woodland Lumber Company, Inc., would pay compensation to all the employees of the Sharps under the terms of the Employers’ Liability Act of Louisiana. But defendants contend that this does not apply when the work is to be performed in another state. When the parties entered into this contract the presumed or implied provision for compensation was just as much a part of the contract as was the price for cutting the timber or any other express stipulation. The parties have no more right to eliminate this implied provision that the law writes into every contract for the benefit of the employees than they have to eliminate any of the other or express provisions. This question of the extraterritorial operations of the Employers’ Liability Act of Louisiana does not appear to have been passed on by the Supreme Court of this state and only once has it been presented to any of the Courts of Appeal. The case of Hargis v. McWilliams Co., 9 La. App. 108, 119 So. 88, 89, is relied on by the plaintiff, but counsel for defendants insist that this case is not applicable for the reason that it was expressly stipulated in advance that the Employers’ Liability Act would apply even though the work contracted to be done was in another state. But this case was decided as though that special provision was not in the contract. The Employers’ Liability Act was passed in order to take the place of the right of action that an industrial worker in any hazardous occupation would have under article 2315 of the Revised Civil Code of Louisiana, provided the parties to the contract so elect, and the act specially provides that they are presumed to have elected to come under its provisions unless it is specially stipulated to the contrary. (Sec. 3, pars. 1 and 2 o£ the Employers’ Liability Act, as amended by Act No. 28 of 1918 and Act No. 85 of 1926.) The court in the case cited holds that, since the law presumes that the provisions of the act are accepted by the parties, this presumed election to be subject to and to be bound by the provisions of the act, applies to the full performance of the contract whether it is in the state or out of it. If, under the terms of the contract, its duration is to be six months this provision would not be affected by the fact that some or all of the terms of service' are to be out Of the state. The same thing will apply to any other detail of the contract. Crossing a state line would have no effect on them. So a stipulation to receive compensation under the Employers’ Liability Act in lieu of any other method, form or amount of compensation provided by law is as binding outside of the state as it is within. But it might be said that there is no provision in the act to the effect. In meeting this same argument, the court in the Hargis v. McWilliams case said:

- “The principal argument in some of these cases, is that ‘there is no provision of the Act (compensation) which can be construed to authorize compensation for an injury occurring outside of the state.’ The answer to that is that there is no provision in the law restricting the liability to accidents within the state, nor any general law to that effect. It is true that article 10 of our Code provides that the effect of acts passed in one country to have effect in another country is regulated by the laws of the country where such acts are to have effect.
• “But this article does not pretend to affect the rights acquired by parties under a contract made in another country, if the Employers’ Liability Act of Louisiana protects an employee against an injury suffered in another state, then this article 10 has no application.
“The object of the Compensation Act is to protect a contract made in Louisiana.
“It is immaterial under the act' where the work has to be done; the law looks to the workman, not to the place where the work is done. The workman is not deprived of the protection of the law because the work is done outside of Louisiana. * * *
“Nothing in this act restricts liability for work within the state. It suffices that the contract of employment be made in Louisiana to carry with it the liability of the employer fixed by that statute.
“It matters not where the work is to be performed; the question is where was the contract made. If the law of the place where the contract was made fixes liability, the liability follows the employer wherever the work is done. Any other view would leave the workman without remedy or relief contrary to the object and spirit of the law and against the principle that the compensation law must be interpreted liberally, in a sense favorable to the workman.
“The Employers’ Liability Act of Louisiana forms part of every contract made in Louisiana for the employment of labor and carries with it the liability of the employer under said act for every injury suffered by the employee in the course of his employment in executing the work within or without the state.”

This same question has been presented many times to the courts of other states and has been decided different ways with various and sundry reasons assigned by the courts. Owing to the wide divergence of views-found in the many cases on the subject, it would not be profitable to undertake any summary of them. To get a better idea of the underlying reasons supporting the theory that an express provision in a contract or one implied by law stipulating that the parties will be bound by the Employers’ Liability Act in matters of compensation for injuries to employees has extraterritorial effect in its operations we need but to get a clear conception of the fundamental reason underlying all such laws. All employers’ liability acts are a matter of evolution. They have come into existence to relieve an economic situation. The principal idea involved in them all is that each industry must bear all the necessary expenses connected with it. And it has been found that the expense of being injured is just as' much a part of the legitimate cost of the products of the industry as any other item of expense. So it has been decided by la,w for the industry as such to bear this expense. In discussing this identical point the Supreme Court of Minnesota in the case of State ex rel. Chambers vs. District Court, 139 Minn. 205, 166 N. W. 185, 187, 3 A. L. R. 1347, said:

"A basic thought underlying the compensation act is that the business or industry shall in the first instance pay for accidental injuries as a business expense or a part of the cost of production. It may absorb it or it may put it partly or wholly on the consumer if it can. The economic tendency is to push it along just as it is to shift the burden of unrestrained personal injury litigation. When a business is localized in a state there is nothing inconsistent with the principle of the compensation act in requiring the employer to compensate for injuries in a service incident to its conduct sustained beyond the borders of the state. The question of policy is with the legislature. It may enact an elective compensation act bringing such result if it chooses. In the case before us the business of the employer was localized in the state. What the employee did, if done in Minnesota, was a contribution to the business involving an expense and presumably resulting in a profit. It was not different because done across the border in North Dakota. It was referable to the business centralized in Minnesota. Sometimes the construction which we adopt will result to the immediate advantage of the employee and against the employer and sometimes the result will be the reverse. Whatever View is adopted perplexing situations may arise. Business has scant respect for state boundaries. An industry may be located a part in one state and a part in another, or it may have separate business situs in two or more, and its employees may from time to time work in each and may reside in one or another at their convenience.”

This question is also ably discussed in the case of Kennerson v. Thames Towboat Company, 89 Conn. 367, 94 A. 372, 376, L. R. A. 1916A, 436. In that case the Connecticut Supreme Court said:

“The remedy provided by our Compensation Act is substitutionary in character, furnishing what was purposed to be a more humanitarian and economical system as a substitute for one deemed wasteful to industrial enterprises and commerce, and unfair to employees. Its intent was to afford its protection to all Connecticut employers and employees who might voluntarily choose to make its provision for compensation for injury a .part of their eon-tracts of employment. It assumed that accident is incident to employment, and pur-' posed to charge its cost in the case of every injury not caused by the willful and serious misconduct or intoxication of the injured employee to the industry in which it occurred. It intended that the employee should know what compensation he or his dependents would receive in the event of injury, and that payment should be made speedily by a procedure at once simple and inexpensive. It intended that the employer should know his liability in this regard, and so might include it among the items charged to operation. If our act intends its contracts of employment to include compensation for injuries occurring only within our jurisdiction, it manifestly defeats its own ends. In that case the employer may not charge to the industry the compensation for injuries occurring without the state, and the employee or his dependents may not collect the same. Neither employer nor employee can know what portion of this period of employment will be subject to the provisions of the act, and no provision for insurance of this liability will be practically possible, since it may not ordinarily be known what part of the service will be in and what part out of the state, or in what jurisdiction the service will be performed, in industries and commercial enterprises engaged in intrastate and interstate employment. The state boundary is not the limit of very many businesses. To subject them to the laws of the many jurisdictions in whch they may be engaged will be especially burdensome to them, and involve them probably in greater expense and liability and far greater difficulties than under the old system. Equally hard will it prove to the employee since he must pursue his remedy in the state of the accident, or the federal court applying that state’s law, and thus he may be brought under any one of many different compensation acts, with whose provisions he cannot hope to be familiar, some acts contractual in character, some compulsory, some optional, and some ex delicto, and he may find he has forfeited the benefit of the foreign act through failure to comply with its provisions. A reading of the several acts now in force convinces us that these difficuties are not imaginative, but imminent actualities.
“Is it reasonable to infer that our Legislature, inaugurating a new system, based upon humanitarian and economical considerations, should intentionally frustrate the object of the new system, and cast a multitude of employers and employees into a maelstrom of trouble, uncertainty, and liability? On the other hand, is it not reasonable to infer that the Legislature, having bottomed the right to compensation upon contract, deemed unimportant the place of injury, since it must be presumed to have known that it, and not the place of injury, would govern the recovery? Such a construction of the act would lift insuperable burdens from industry and commerce and workmen, and give to each his course and the ascertained fruits of the contract of his will.”

In the case at bar the business of the defendant, Eicher-Woodland Lumber Company, Inc., was localized at Alexandria in Rapides parish of the state of Louisiana. All the business operations in Mississippi were referable to the business of the defendant centralized in Louisiana. Whatever was done in Mississippi was done for the benefit and profit of the Louisiana business under the terms and stipulations of a Louisiana contract made in Louisiana under its laws with an implied stipulation that the parties had elected to be bound by the provisions of the Employers’ Liability Act. All the defendants and the plaintiff were residents of this state and would be enriched by the profits of the Mississippi operations.

Counsel lay great stress on the fact that the defendant, Eicher-Woodland Lumber Company, Inc., had qualified to do business under the laws of Mississippi. But that act can not nullify or have any effect on the performance of a Louisiana contract in Mississippi. This defendant being a corporation, it was necessary for it to comply with the state regulations in Mississippi so that the state could reach and control it in all matters arising between it and citizens of that state. Otherwise it could not be sued in the state. If that defendant had been an individual, this requirement would not have been necessary, for his personal presence in the state would give jurisdiction over him in all matters growing out of his operations in which that state or its citizens might be interested. But in either case would the contractual rights of the parties be affected where the contracts were made in Louisiana between Louisiana citizens and residents? In their brief counsel for defendants say:

“It is thoroughly settled that when a foreign corporation complies with the provisions of law entitling it to admission to a State and to do business therein, it is entitled to the benefits and subject to the burdens imposed by that State to the same extent as though it were a domestic corporation. It, like an individual, takes the new domicile with all the laws controlling.”

The answer to that argument is this: Parties to a contract have the right to renounce any particular provision of the law made in their behalf. It is admitted that in the state of Mississippi, there is no Employers’ Liability Law, but an employer and his employee could enter into a binding written contract embodying the Louisiana Employers’ Liability Act as a whole, either expressly or by reference, and their agreement that all injuries should be compensated under the provisions of that law, and that this compensation should be in lieu of all other remedies provided by the laws of Mississippi, would be binding and enforceable. In Louisiana we have such a law. Every contract is presumed to embody all the provisions of this act unless otherwise stipulated. When a contract is thus entered into that provision is just as binding as any other, and crossing a state line does not change its binding effect. When plaintiff entered into this contract with the Sharps in Louisiana, the law wrote this provision into it, and it was binding wherever the work was carried on. The fact that at the time of the injury Eicher-Woodland Lumber Company, Inc., had no active operations going on in Louisiana is not important. It was still a Louisiana corporation. Its business was localized in Louisiana and it was subject to the laws of the state that brought it into existence and gave it whatever rights it had wherever those rights may have been exercised.

EXTENT OF THE INJURY.

It is always a difficult matter to fix in terms of percentage the extent of the loss of the use or function of a member of a human body. In this case the plaintiff produced twp reputable physicians who testified as to the condition of the plaintiff’s hand. Falling against a saw in defendant’s mill, the plaintiff’s right hand was seriously cut and injured on January 21, 1929. On October 1, 1930, just before the date of the trial and nearly two years after the injury, Drs. M. W. Talbot and W. E. Reed, of Leesville, examined plaintiff’s hand and agreed that it was in a hopeless condition, and that he had practically no use of it for industrial purposes. Because they were unwilling to say that plaintiff would be as well off with it amputated as he is with it in its present condition, when they were urged to fix a percentage of the impairment, they each fixed it at between 75 and 85 per cent. But the only use that they could suggest that plaintiff had of his hand was to pick up small objects. It is clear from all the testimony that for all intents and purposes plaintiff has lost the entire use of his hand and should be compensated on that basis.

Under the law the defendants should not have undertaken to make a lump sum settlement with the plaintiff without the approval and sanction of the court, as provided by law. The law has enacted a penalty for the violation of this provision, and under this provision the plaintiff would be entitled to and he is demanding an additional sum of 50 per cent of whatever the law would allow otherwise. But as this part of the statute is penal, it should not be enforced in cases where the defense was a reasonable one and in the making of which the defendants are justified. The question raised by the defendants in this case has not been well settled in this state. It has never been passed on by • our Supreme Court, and the defendants were justified in raising it' and endeavoring to establish their defense.

For the reasons assigned the judgment appealed from is annulled and set aside, and it is hereby ordered, adjudged, and decreed that there be judgment herein in favor of the plaintiff, D. W. Durrett, against the defendants, Eicher-Woodland Lumber Company, Inc., John T. Powers, receiver, and B. J. and J. R. Sharp, in solido, for the lump sum of $19.50 per week for one hundred fifty weeks, or $2,925, less $601.70 already paid, with legal interest from May 31, 1929, and all the costs of both courts.

DREW, J., dissents for the reason that no contract was entered into in this state.

ON REHEARING

CULPEPPER, J.

This case is on rehearing upon application of defendants, appellees. Our former opinion rendered July 14th last, reversed the judgment of the ' lower court, which rejected plaintiff’s demands, and rendered judgment for plaintiff.

Defendants, in their application for a rehearing, contend that the court erred in holding that the contract of employment alleged upon was entered into in Louisiana.. It is contended that the testimony as to the conversation had between plaintiff and B. ' J. Sharp, one of the defendants, at the.: former’s home at Cheneyville, Louisiana, did not constitute a contract as was held 'by this court; that neither did the interchange of letters or telegrams between Sharp and the plaintiff while plaintiff was ' at Pitkin, Louisiana, and while Sharp was ' at Woodville in Mississippi, amount to' a contract.

Defendants further contend that even though the contract was entered into in ¡ Louisiana, the laws of Mississippi, and not those of Louisiana, should apply to this ’ case, for the reason that Eicher-Woodland Lumber Co., Inc., had fixed its domicile in Mississippi and had appointed a state . agent in that state, thereby accepting the benefits and burdens of that state, hence the court erred in holding that the laws of that state did not apply; that the court erred in considering the fact that all parties concerned were residents of and domiciled in Louisiana; that such, is not necessary or even incident to a decision of the facts; that the court erred in holding that Eicher-Woodland Lumber Co., Inc., had a blanket contract with the Sharps to convert its timber in Louisiana and Mississippi into lumber, when in truth and in fact when this contract was made for work in Mississippi with the Sharps, the EicherWoodland Lumber Co., Inc., had no timber in Louisiana; that the court erred in holding that this contract, if any had, was to be performed on either side of the state line, in fact it was only to be performed in Mississippi.

For brevity the court will hereafter refer to Eicher-Woodland Lumber Co., Inc., as Eicher-Woodland, and to B. J. Sharp and J. R. Sharp as the Sharps.

As to the question of whether the contract alleged upon was entered into in Louisiana, the testimony shows substantially as follows: On December 26, 1928, B. J. Sharp, a member of the partnership of B. J. Sharp and J. R. Sharp, came to the home of plaintiff near Cheneyville in Louisiana to hire Monroe Durrett, plaintiff’s son, as a truck driver for the Sharps at Laurel Hill, in Louisiana. In the conversation that ensued, plaintiff inquired of Sharp if he also could get work. The testimony is conflicting as to just what Sharp told plaintiff. Sharp testifies (quoting): “I told him I would let him know.” Plaintiff" testifies Sharp said, “Yes, I might not be able to give you anything but ‘doodling sawdust’ until something opens up.” Since reading this testimony again, we are of the opinion that it is too indefinite to be construed as a contract.

During the conversation above referred to, plaintiff told Sharp that he had worked for Mr. Wemple, on whose place plaintiff was then residing, as a sawyer, and that he could do any kind of work around a sawmill. Three days later, on December 29th, plaintiff accompanied his son to Laurel Hill where the latter went to begin driving a truck for the Sharps for which B. J. Sharp had hired him. On that trip, so plaintiff testifies, he stayed all night with B. J. Sharp, and while there in Sharp’s home at Laurel Hill, Sharp asked him how long it would be before he “come over to go to work,” and plaintiff replied (quoting) : “X couldn’t say definitely, but I want to be back on the 14th day of January following.” Sharp testifies in one place that plaintiff did not call on him at Laurel Hill. Again he says he does not recall that plaintiff spent the night with him. He testified he did not even recall the date nor the occasion when plaintiff’s son moved to Laurel Hill. M. T. Barnidge testified he stayed at B. J. Sharp’s the night of December 29th, and that plaintiff also stayed there; that he was present and heard the conversation between plaintiff and Sharp relative to plaintiff’s going to work for Sharp, and heard Sharp tell plaintiff he could use him as soon as he (plaintiff) could locate at Pitkin and get back down there, and that plaintiff agreed to come back. The occasion of Sharp’s testimony above referred to was while plaintiff had him called for cross examination at beginning of plaintiff’s ' testimony in chief. Sharp was later called and testified as a witness for the defense, and did not deny Barnidge’s testimony except that he was asked if he remembered whether plaintiff came over to Laurel Hill and had a talk with him and he replied: “No, I don’t. We were busy and moving.” Owing to the apparent evasive manner in which Sharp answered questions, his pretending not to. remember circumstances which in all reason he should have remembered, and failure to specifically deny Barnidge’s testimony when he had an opportunity to do so, we are inclined to believe plaintiff’s version of this conversation rather than Sharp’s.

Yet this testimony does not show any particular job Sharp agreed to give plaintiff on that occasion. The only thing he did was to inquire when plaintiff would report back to work and plaintiff agreed to report back on January 14th. We do not think it can be said that there was any contract entered into on that occasion, for the want of certainty as to the object of the alleged agreement. We think before it can be said that a contract was entered into between these parties, it would have been necessary that some certain object, such for instance as that plaintiff was to be given the position as sawyer, be agreed upon. The testimony does not definitely show this.

The next communication had between plaintiff and B. J. Sharp was a few days before the 14th of January, 1929, the date previously agreed upon for plaintiff to report back for work, when plaintiff received a letter from Sharp, written from Wood-ville, Mississippi, addressed to plaintiff at Pitkin, Louisiana, telling plaintiff, so plaintiff testifies, that his sawyer at Woodville had quit and he wanted plaintiff to come at once and go to work and take the sawyer’s place. Plaintiff also testifies that he wrote and mailed a letter immediately to Mr. Sharp agreeing to come and requested Sharp to send him money to pay his way over there. Sharp mailed plaintiff a check for $10 a few days later in response to plaintiff’s request, but before it reached him he had an opportunity to go free of expenses with his son, Monroe Durrett, who was returning to Woodville from a trip he had made to plaintiff’s vicinity about that time. Sharp testifies he did not write plaintiff his sawyer had quit and wanted plaintiff to come and take his place, but that he wrote him (quoting): “I told him if he would come over there I could use him, give him a job.” Monroe Durrett testifies that when he left Woodville to go to the vicinity of his father’s, Mr. Sharp told him to bring his father back with him if he saw him. Sharp, on cross examination, first testified he did not recall the occasion of Monroe Durrett’s going to the vicinity of plaintiff as testified about; that he did not recall telling young Durrett to see his father and bring him back. Still again, being asked how it was, Sharp says he did tell young Durrett to tell his father to come on over and that if he had not already left for Mississippi, for Monroe to bring him back with him. It appears from the manner of Sharp’s testimony he is unwilling to frankly admit just what he did write plaintiff, and admits unwillingly that he even sent for him by young Monroe Durrett. From the testimony as a whole on this point we think it clear that Sharp’s letter to plaintiff was a call to- plaintiff to come and take the job as a sawyer at the Sharps’ sawmill; that it amounted to an offer of employment, and that plaintiff’s reply was an acceptance. While the amount plaintiff was to receive as wages was not mentioned, no doubt Sharp expected to give and plaintiff expected to receive the amount Sharp was then paying his sawyer, which it developed later was $5 per day. That much of the agreement was necessarily implied. We therefore think there was created at this time a contract of employment between plaintiff and the Sharps. The fact that plaintiff reported to Sharp a few days later, January 18th, and without further negotiations was put to work by Sharp operating one of his saws, corroborates plaintiff’s contention that a contract had been entered into.

At this time B. J. Sharp was living at Woodville in the state of Mississippi and the Sharp brothers had moved their saw-, mill, logging outfit and crew of workmen from Laurel Hill, Louisiana, across the line into the state of Mississippi to Woodville, in that state, where they had set up and were operating their sawmill, and were cutting and logging timber in that state, supplying their sawmill in that state. To all appearances, so far as the testimony shows, this new location was altogether separate and distinct from the former location and operations at Laurel Hill in Louisiana. It was a different tract of timber, and a new location for their sawmill.

Mr. Woodland, secretary and treasurer of Eicher-Woodland, testifies that his company operated a sawmill at Laurel Hill in 1928 up until about the middle of November when they closed down and moved to Woodville, Mississippi, where they started building a new mill and logging operations about the middle of November; that by the first of January, 1929, his company had no employees in Louisiana, except their office force in their sales office at Alexandria, Louisiana. While he does not testify directly that his company maintained an office at Woodville, he says they operated a mill there. He speaks of their office being burned down in the latter part of 1929. It is, therefore, to be presumed that he had an office in Woodville. He testifies that his sawmill operations at Wood-ville constituted a separate and distinct plant from the mill formerly operated by the Sharps at Woodville. He also testifies that the Woodville plant was separate and distinct from his Alexandria office; that his Alexandria office was used solely as a sales office. He also says his sawmill plant at Woodville is still being operated; that he has operated no sawmills in Louisiana since closing down his mill at Laurel Hill in November, 1928.

The Sharps owned and operated their sawmill at Laurel Hill, closed it down in November, 1928, moved it to Mississippi, where they set it up and began cutting, logging and manufacturing timber belonging to Eicher-Woodland about the first of January, 1929. They were under a contract with Eicher-Woodland for a certain agreed price for the lumber as delivered. The testimony does not show that the Sharps ever moved their mill and logging operations back into Louisiana after leaving the state the latter part of 1928 or first of 1929.

These two industries — the Eicher-Woodland and the Sharps, appear to have discontinued operations in Louisiana altogether, and moved to Mississippi, and have never returned to this state. This removal had already taken place before plaintiff was employed. Plaintiff was employed to work in the state of Mississippi, for an established industry in that state, and received his injuries while so employed there.

So far as the question of when, where and how plaintiff was employed is concerned, we now think, after again examining the testimony and the law applicable, makes little difference. We think the location of the industry where plaintiff was to perform the services has more to do with his right of recovery than the place where he was employed. B. J. Sharp, the employer, living at Woodville, Mississippi, wrote from his home there, to plaintiff at plaintiff’s home at Pitkin, Louisiana, offering plaintiff a position as sawyer at Sharp’s sawmill at or near Woodville. Plaintiff replied accepting the offer and reported for work a few days later. It would have made no difference if Sharp had gone to Louisiana and employed plaintiff at Pitkin, or plaintiff had gone to Sharp at Woodville and there entered into an agreement of employment. The industry where plaintiff was to work was located in Mississippi, was essentially a Mississippi industry, was subject to the laws of that state, and plaintiff under these circumstances, when injured, would have to recover, if at all, under the laws of that state.

It is significant that neither of these industries ever moved back to Louisiana. Nothing is shown as to what became of the business carried on by the Sharps. It is not shown that they ever moved their operations back to Louisiana. It is shown that the Eicher-Woodland operations, or the sawmill plant moved by it from Louisiana to Mississippi, is still being carried on at Woodville, where it was established the latter part of 1928.

It is also a fact that plaintiff was never at any time an employee of Eicher-Woodland, but was in the employ of the Sharps, who were engaged in maintaining and operating an industry of their own, that of logging and lumbering; and since their entire operations were in Mississippi at the time plaintiff was employed, and when he received his injuries, and since the Sharps’ relations with Eicher-Woodland, whatever they may have been at the time, were wholly within the state of Mississippi, we do not think plaintiff’s right of recovery for his injuries can even be remotely governed by the Employers’ Liability Law of Louisiana (Act No. 20 of 1914, as amended). The Sharps were delivering the lumber which they manufactured to EicherWoodland at its place of business in Mississippi. So far as the record discloses, none of the lumber was sent back to the Eicher-Woodland sales office in Alexandria, Louisiana. It may be that by correspondence through the Alexandria office, sales were found for the lumber in various markets throughout the country, but from that fact it cannot be construed that the business carried on by the Sharps was a Louisiana business or industry, nor that EicherWoodland’s was a Louisiana business.

Eicher-Woodland had obtained a permit to enter Mississippi and carry on its business in that state; had a regular designated agent to represent it there in matters of litigation. It no doubt paid taxes to that state on its property and industry there, just as all other corporations carrying on a business or industry in that state. The Sharps no doubt were also subject to payment of taxes on their sawmill and logging outfit established in that state.

While it is true that the Employers’ Liability Act of Louisiana should be liberally construed, we think it clear that it is wholly out of the question to put such a construction upon it as to make it apply to cases of this kind.

Plaintiff’s able counsel has cited, as controlling, the case of Hargis v. McWilliams, 9 La. App. 108, 119 So. 88. In that case, the plaintiff was sent to Florida to perform some special repair job of work. His employer did not go to Florida and set up a business as a going industry, did not move his business to that state, but his business remained established and located in Louisiana. The work plaintiff in that case was sent out of the state to do was only temporary. We do not think the facts in that case applicable to the present one.

We have been unable to find a case from Louisiana similar to this one, and have been cited to none by counsel.

Counsel for defendant has cited some cases from other states which present a state of facts similar to the present case, and the views there held are in accord with the views as herein expressed.

In Watts v. Long, 116 Neb. 656, 218 N. W. 410, 59 A. L. R. 728, the court laid down the following principle of law:

“The Employers’ Liability Law of this state (Laws 1913, c. 198, as amended) is not applicable to a nonresident employer and resident employee, where the contract of employment was made in this state for services to be performed in another state, and the employer was not, at the time of the contract, engaged in any trade, business, profession, or avocation in this state.
“Such law is applicable where the employer is engaged in any trade, business, profession, or avocation in this state and the employee, while performing work incident to such business in another state, is there injured”—citing New York C. R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Mountain Timber Co. v. Washington, 243 U. S. 219, 37 S. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642.

The latter paragraph above quoted sets forth the application of the extraterritorial power of the Employers’ Liability Law. The Hargis case is an example of its application in this state. The Watts v. Long case, above referred to and those cited in connection with it, not only recognize this extraterritorial power of the Workmen’s Compensation Law of the various states which have the law, but it also holds that such a law is not applicable to a non-resident employer and resident employee where the services to be performed are in another state, and the employer was not, at the time of the contract, engaged in any trade or business in the state of the resident employee, as set out in the first paragraph above quoted from the decision. And this, according to the decision, is true, even in cases where the contract of employment is made in the state of the employee’s residence.»

Clearly, the Sharps, who were the employers of plaintiff, were residents of Mississippi at the time the contract of employment was entered into; and it- is equally certain that the services to be performed were in that state, also the Sharps were not engaged at the time in any trade or business in the state of Louisiana. There is no evidence to show that the Sharps ever moved their operations back to this state. To all appearances, when they moved their business out of this state and established in Mississippi, it was a permanent move.

The business carried on by the Sharps was an independent business of their own. They hired and fired their employees, and conducted their business in their own way. The only connection they apparently had with Eicher-Woodland was some kind of an independent contract under which they cut and manufactured certain timber belonging to that company, for which they received a stipulated price per thousand feet delivered at the company’s mill or place of business in that vicinity. Clearly they were independent contractors and owned and operated their own mill and logging outfit and employed their own labor.

Under the circumstances as above outlined, clearly plaintiff would have no rights under the Louisiana Employers’ Liability Act to recover from the Sharps. And his right to recover from Eicher-Woodland would, we think, be governed or determined from his relations toward his employer, the Sharps; hence he has no rights as against the Eicher-Woodland.

As previously stated, we do not think the place where the contract of employment was entered into is decisive. In fact, it would have little to do in determining whether plaintiff’s claim comes under the act. It frequently happens that employers of businesses and industries of variqus kinds go or send into other states than that where such businesses are located to employ their labor.

The Long Bell Lumber Company, for example, which has a large sawmill in Long-view, in the state of Washington, might write or send here to Louisiana, where it has in the past operated several sawmills, and employ some of its old Louisiana men and take them or pay their way to Longview and put them to work in its mill there. If one of them should be injured while working there, his right to recover would be governed by the laws of the state of Washington, and not that of Louisiana.

The location of the industry is important.

In the Watts v. Long case, above quoted from, which is very similar to the present case, the court used the following language:

“The general rule is well established that, where the place of the contract and place of performance are the same, the law of the place where made will govern the contract; but it is equally well established that, where the contract is made in one place to be executed in another, it will be governed by the law of the place of performance.”

It is our view, since making a further examination of the testimony in this case, and of the law applicable, that we were in error in our former holdings, and we now conclude that plaintiff’s claim does not come under the Employers’ Liability Act of Louisiana, and we so hold.

Therefore, for the reasons assigned, our former opinion is recalled and set aside, and the judgment of the lower court is reinstated and made the judgment of this court, and it is so ordered.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    No. 4115
    Second Circuit
    FRYE v. INTERURBAN TRANSP. CO., INC.
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)
    William M. Mecom, of Columbia, attorney for plaintiff, appellee.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for defendant, appellant.
   STEPHENS, J.

The plaintiff, Lutz Frye, brought this suit to recover damages from the defendant, Interurban Transportation Company, Inc., for personal injury and for the destruction of his automobile which resulted in a collision of said automobile with a passenger bus owned and operated by the defendant.

The defendant answered, denying that. the collision and resulting injury was caused by any negligence on its. part, and averring that if it was found, as a fact, that it was negligent, that the plaintiff was guilty of contributory negligence, which bars recovery.

A trial of the case resulted in a judgment in favor of plaintiff in the sum of $930. From that judgment the* defendant prosecutes this appeal.

The collision complained of by plaintiff occurred on the Monroe-Alexandria highway at a point approximately three miles north of Columbia, La., in Caldwell parish. The plaintiff was driving a model A Ford coupe south towards. Columbia, and the defendant’s bus was moving in the opposite direction towards Monroe, La.

The scene of the accident was on a straight stretch of road approximately 100 yards in length, at a point equidistant from the beginning of curves at both ends of the straight-away. Both of the curves referred to were gentle, and in the same direction, and caused no obstruction of the view of the drivers of the colliding automobiles, and we think may be dismissed as immaterial factors in the solution of the case.

Immediately prior to the collision, it became necessary for the plaintiff to pass a wagon which was being driven north on the left or wrong side of the road and in •the opposite direction from which he was. traveling. This circumstance caused the plaintiff to drive to his left side of the road and pass the wagon as he would have properly done had the wagon been proceeding south. In like manner, immediately prior to the accident, the defendant’s bus passed to the left of a Ford car, in which a number of negroes were riding, which was being driven north on its right side of the road. The plaintiff’s automobile and the defendant’s bus, after having passed to the left of the wagon and the Ford car respectively, proceeded a distance of approximately 125 vards and collided on the bus’ left or wrong side of the road.

It is the contention of the plaintiff that defendant’s bus continued on the left or wrong side of the road from the time it passed the Ford car until the collision occurred; and that he (the plaintiff), after having passed the wagon, returned immediately to his right side of the road and remained there until a head-on collision seemed inevitable, at which time he swerved his automobile sharply to the left; and that, simultaneously therewith, the driver of the bus turned it sharply to its right; that he then cut his automobile quickly to the right; the bus driver executed a similar movement in the same direction and the collision resulted.

The contention advanced by the defendant is that, as soon as possible after the bus had been driven past the Ford car, it regained its right side of the road, and maintained it until its driver observed plaintiff’s automobile pass the wagon and begin to zigzag across the road; that its. driver, believing that the plaintiff had lost control of his automobile,. applied the brakes to the bus and drove it to about the center of the road, which position of the bus he maintained until the movements above described were executed in an effort to avoid the collision, if possible, and, if not, to minimize its consequences.

The trial judge was of the opinion that the plaintiff’s theory of the cause of the accident was correct. A careful review of the evidence convinces us of the correctness of the learned trial judge’s appreciation of the facts and the law applicable. thereto. The record abundantly supports the material facts upon which the plaintiff rests his case. The plaintiff’s automobile passed the wagon and regained its right side of the road. After 'this occurred, the defendant’s bus passed to the left of the Ford in which the negroes were riding, and did not return to its right side of the road at any time prior to the collision. We are led to the conclusion that the facts and circumstances which existed before the bus passed the Ford did not justify the belief on the part of the bus driver that he could pass in safety. It was his duty to have driven behind the Ford until the plaintiff had passed. His failure to observe that duty was in violation of section 15 of Act No. 296 of 1928, which provides:

“The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.”

Further, his failure to observe that duty was negligence which created a dangerous emergency, the consequences of which the plaintiff made an ineffectual attempt to escape, as evidenced by his zigzagging across the road when it became apparent that the road was closed to him.

If it be held that the defendant’s bus may have passed the negro’s Ford in safety because of the distance between it and plaintiff’s automobile at the time the attempt was made, the defendant’s driver was negligent in failing to do so, as he never regained the right side of the road prior to the accident.

In either event, the negligence of the driver of the bus was the proximate cause of the accident.

We find no negligence on the part of the plaintiff. It is not shown that he was driving at an unlawful rate of speed; and his conduct after he was confronted with the sudden peril created by the negligence of the defendant’s driver was all that could be expected of him under the circumstances.

This court in Smith v. Interurban Transportation Company, Inc., 5 La. App. 704, in commenting on the duty of the driver of an automobile when confronted with an emergency, used the following language:

“The general rule is that the driver of an automobile should keep to the right, but the rule does, not apply in cases where the driver is confronted with an emergency.
“In the emergency, the driver of the bus used his best judgment and swerved to the left in order to avoid the collision. As it turned out, his turning to the left probably saved the lives of the occupants of the Ford car. But even if it be said that he could have avoided the collision by proceeding straight ahead on the right-hand side of the road (we think he could ;not) he cannot be held responsible for an error in judgment under the circumstances.”

The district judge allowed recovery for personal injury to plaintiff in the sum of $575; the sum of $330 for damage to his automobile; and the sum of $25 for medical fees by him expended as a result of the injury. The sums allowed for the damage sustained, as disclosed by the record, are not excessive, but clearly conservative, and should not be reduced.

The plaintiff in his brief contends that the award should be increased. But he has not appealed nor answered the appeal, so the question of amending the judgment in his behalf by increasing the award may not be considered.

The judgment appealed from is affirmed, with costs.


author: DREW, J.

text:
    No. 4156
    Second Circuit
    BLOOMENSTIEL v. McKEITHEN ET AL.
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)
    Breazeale & Sachse, of Baton Rouge, and Kenneth H. Brown, of Monroe, attorneys for plaintiff, appellant.
    Vinson M. Mouser, of Columbia, attorney for defendants, appellees.
   DREW, J.

Plaintiff sued W. O. Mc-Keithen, the United States Fidelity & Guaranty Company, and the Louisiana highway commission for $540.74, with legal interest thereon from March 12, 1930, until paid, with 10 per cent attorney’s fees on both principal and interest.

He alleged that the said McKeithen and the Louisiana highway commission entered into a contract for the construction of State Project No. 456-A, known as the Columbia-Chatham Highway. That the United States Fidelity & Guaranty Company, as surety, together with the said McKeithen, as principal, executed a statutory bond, as required by Act No. 224 of 1918, which bond was duly recorded in accordance with the law. That McKeithen employed W. F. Cooper to perform certain work under said contract, and that the said Cooper became indebted unto plaintiff in the sum of $1,472 for mules purchased to be used in constructing the said project. He further alleged that on September 23, 1929, the said McKeithen executed a document in favor of W. F. Cooper as follows:

‘‘Grayson, La., Sept. 23, 1929.
“I hereby certify that the amount earned by W. F. Cooper, Sub-Contractor on Project No. 456-A, to this date is $2.703.74, of which amount 80% has already been paid the said Cooper, leaving 20% balance due, amounting to $540.74, which said amount I agree to pay -to the said W. F. Cooper, Sub-Contractor, or his assigns, upon the completion and acceptance of said project by the Louisiana Highway Commission, less any deductions that may result from the maintaining or keeping said project in satisfactory condition to the Louisiana Highway Commission until final payment is made by said Commission.
“[Signed] W. P. McKeithen, Contractor.”

That on the same date Cooper assigned the foregoing acknowledgment and promise to pay to your petitioner, as well as any additional amount that might become due to him, as follows:

“I hereby assign to M. F. Bloomenstiel, of Donaldsonville, La., the above and foregoing certificate and the amount to be paid me on the completion and acceptance of said Project No. 456-A, as well as 20% on any additional amount that may be due me as Sub-contractor upon the finai acceptance of said Project No. 456-A, with the same provisions as in the above eertifi-/ cate.
“This September 23d, 1929.
“[Signed] W. F. Cooper, Sub-contractor.”

And on the same date the said Mc-Keithen accepted the assignment and became bound thereby, as follows:

“I hereby accept the above and foregoing assignment.
“(Signed) W.. O. McKeithen.”

That all three of the above-quoted acknowledgment, assignment, and acceptance were on the same folio.

On March 12, 1930, the Louisiana highway commission accepted the said work and the sum of $540.74 then became due to petitioner, who had become legally subrogated to all the rights, of Cooper against the defendants herein, and had a claim against said defendants, under Act No. 224 of 1918. That he made amicable demand upon all defendants more than thirty clear days before the filing of this suit and is entitled to 10 per cent attorney’s fees on both principal and interest. He reserved the right to claim any further amount that has become due to the said Cooper under said contract since September 23, 1929, and prays for judgment accordingly.

All three of the defendants filed exceptions of no cause of action and by agreement of counsel the exception of the Louisiana highway commission was sustained, and overruled as to the other two defendants. Defendants, in answer, denied the indebtedness, and otherwise admitted all the essential allegations of plaintiff’s petition, except they denied that demand had been made more than thirty days prior to the filing of the suit. They denied •that any amount was owing to Cooper at the time the contract was accepted by the Louisiana highway commission and affirmatively aver “that the acknowledgment set forth above was a conditional obligation, as shown by the terms thereof, and that it required much more than the sum of $540.74 to maintain and keep said project in satisfactory condition until the acceptance thereof by the Louisiana highway commission; that, therefore, the condition under which the said Cooper or his assigns would become able to demand said sum never occurred,” and prays for the demands of plaintiff to be rejected.

Plaintiff made due proof of demand in writing more than thirty days before the filing of the suit. The remainder of the allegations are admitted; therefore, he made out a case, unless the affirmative defense of defendants overcame it.

When the defendants offered their evidence to prove the cost of maintaining and keeping in satisfactory condition the project until the acceptance by the Louisiana highway commission, plaintiff objected to •the testimony, which objection was in effect that the allegations as. to offsets are so vague, general, and indefinite that plaintiff was placed in a position in which he could not defend himself; that the claim is pleaded in globo and not itemized; and that no evidence is admissible thereunder. The lower court heard the testimony regarding the objection and rendered judgment rejecting plaintiff’s demands, and from that judgment he has prosecuted this appeal.

The objection to the admissibility of the evidence should have been sustained. The evidence was clearly inadmissible. Ouachita National Bank v. McIlhenny, 169 La. 258, 125 So. 69; Arcadia Lbr. Co. v. Austin et al., 15 La. App. 212, 131 So. 601.

A plea of compensation, offset, or a re-conventional demand should be set forth with the same certainty as to amounts, dates, items, etc., as though the party pleading it were plaintiff in the suit, in order that the plaintiff may properly defend himself against such claim. There was no other defense made by defendants, other than its attempt to offset the amount due, which evidence was inadmissible. It therefore follows that plaintiff is entitled to judgment. He has complied with Act No. 224 of 1918, in preserving his claim and making demand on both principal and surety more than thirty days before filing suit, and is therefore entitled to 10 per cent attorney’s fees on both principal and interest.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed; and that there now be judgment for plaintiff against W. O. McKeithen and the United States Fidelity & Guaranty Company in solido in the full sum of $540.74, with legal interest thereon from March 12, 1930, until paid and 10 per cent attorney’s fees on both principal and interest; and for all costs of both courts, reserving to plaintiff the right to sue for any additional amount .that became due under said assignment after September 23, 1929.

MeGREGOR, J., dissents.


author: McGREGOR, J.

text:
    No. 4226
    Second Circuit
    McCLARY v. ENDOM’S TRANSFER & STORAGE GARAGE ET AL.
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)
    Before DREW, MeGREGOR and STEPHENS, JJ.

      McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellee.
    Munholland & Munholland, of Monroe, attorneys for defendants, appellants.
   McGREGOR, J.

This is a suit for damages arising out of a collision between plaintiff’s Buick sedan and' defendants’ Yellow Cab at the intersection of Jackson and Grammont streets in the city of Monroe, Ouachita parish. On March 18, 1931, at about 9:15 o’clock p. m., the plaintiff’s said automobile, driven by his. minor son, seventeen years of age, and filled with passengers, was proceeding south on Jackson street, and defendants’ Yellow Cab was traveling east on Grammont street. While both cars were attempting to cross the intersection, a collision occurred between them in the southwest quadrant of the intersection; that is, at a point south of the center of Grammont street and west of the center of Jackson street. Plaintiff’s car went a few feet toward the southeast, turned halfway around, and fell on its left side, with the front end pointing in a westerly direction on Jackson street, and the four wheels extending toward the north. When it stopped in this position, it was just a few inches south of the intersection of the two streets and just east of the street railway tracks that run north and south in the center of Jackson street. The Yellow Cab stopped almost instantly and proceeded no further after the collision. All the occupants of the sedan, six in all, were lifted from it as it was lying on its left side and, fortunately, none of them received injuries.

The sedan was practically demolished, and the plaintiff brought this suit for $763.50, the sum which he estimates will be necessary to restore the car to its original condition. In his petition he alleges that the collision was the result of the negligence of the defendants’ chauffeur in driving the Yellow Cab in a reckless manner in violation of law; that at the time of the accident the said chauffeur was acting within the scope of his employment and was performing service for his employers. Jackson street is a right of way street, and the traffic laws of the city of Monroe require that any person driving a vehicle from any intersecting street, such as Grammont, across or into it shall come to a full stop at a point not more than fifteen feet from the intersection and not proceed until he has ascertained that no vehicle is traveling the said right of way street sufficiently near to the intersection to render a collision or accident probable. Plaintiff alleges that defendants.’ chauffeur violated this .provision of the law, in that he did not bring his car to a full stop at a point not more than fifteen feet from the intersection. It is also alleged that he violated the law, in that he was traveling at a rate of speed in excess of fifteen miles per hour, the maximum allowed by law on that street.

In their answer the defendants deny all negligence generally. They allege particularly that the accident was caused by the reckless, careless, and unlawful manner in which plaintiff’s son drove the Buick sedan, and as plaintiffs in reeonvention, pray for $7 damages for the injury done to their Yellow Cab in the collision.

Judgment was rendered in favor of the plaintiff by the trial judge for the sum of $400. The defendants appealed, and the plaintiff has answered the appeal and asked that the judgment be amended by increasing it to the amount originally prayed for in his petition.

The evidence in the case is conflicting. All the plaintiff’s witnesses testify that the sedan was being driven at a rate of speed not to exceed fifteen or twenty miles per hour, and that the Yellow Cab, shortly before the collision, was being driven as fast as forty-five miles per hour. Dr. W. I Y. Gamier, of Bastrop, La., testified that he was standing in a filling station at the northwest comer of the intersection at the time of the collision. He was facing the intersection and saw both cars before the collision and after it occurred. He states that plaintiff’s sedan was being driven at a moderate rate of speed, about fifteen or twenty miles per hour, and that the Yellow Cab was going at the rate of forty-five miles per hour. He states positively that the cab did not stop at the intersection as required by law, but that the driver applied his brakes at about the edge of the intersection, and that the shriek of the brakes, .the sliding of the wheels, and the impact of hitting the sedan were almost simultaneous. He testifies positively that the sedan entered the intersection first and had practically crossed the center of Grammont street when the cab, come the west, struck it broadside at a point near the right rear wheel or fender. Sol Snyder, also a resident of Bastrop, La., was an eye-witness to the accident. He had brought Dr. Gamier to Monroe in his automobile. At the moment of the collision he was sitting in his car, which was parked on the south side of Grammont street, facing east, just west of the intersection where the two ears collided. This position was just south of and across the street from where Dr. Gamier was standing, so that he had as perfect a view of the accident as the doctor did, except that it was from a different angle. As the Yellow Cab approached the intersection, it came from the west or rear of Snyder’s position, but at the immediate time of the collision the cars were clearly in front of him in full view. He stated that he saw the Buick sedan traveling in a southerly direction on the right side of Jackson street at a speed of about twenty miles per hour, and that the front wheels were well beyond the center of Grammont street when it was. struck by the Yellow Cab broadside near the right rear wheel. He is positive in his testimony that just prior to the accident the Yellow Cab was proceeding in an easterly direction on Grammont street, running at a speed of about forty-five miles per hour, and that it did not stop prior to reaching the intersection. Mr. J. B. McCoy, an employee of the filling station, with whom Dr. Gamier was transacting business, did not see the accident itself as his back was turned to it, but he testified that the impact between the two cars produced a loud noise which, of course, attracted his attention. As soon as he could turn around and look in the direction from which the loud noise came, he saw the Buick sedan on its left side in Jackson street, just past the intersection, as has heretofore been described.

Samuel H. McClary, Jr., son of the plaintiff, testified that he was the driver of the Buick sedan at the time of the collision. It is his testimony that he was proceeding south on the right-hand side of Jackson street at a speed of about fifteen miles per hour, and that he was well into the intersection when he saw the defendants’ Yellow Cab coming from the west on Grammont street, traveling at a very rapid rate of speed; that the Yellow Cab did not stop before entering the intersection and attempting to cross Jackson street; that he tried to avoid the. collision by swerving his car to the left, but was prevented from doing so by the Yellow Cab striking his car near the right rear wheel. Mrs. Samuel H. McClary, wife of the plaintiff and mother of the young man who was driving, testified to practically the' same state of facts that her son did. She had every opportunity to know exactly how the collision occurred as she was sitting on the front seat at the right of her son.

On the rear seat of the sedan were Mrs. J. A. Irving, two Misses Boynton and a little child. Mrs. Irving and one of the Misses Boynton testified for the plaintiff. Their testimony corroborates that of Mrs. McClary and her son in every' respect. They are positive that .the sedan was traveling no faster than fifteen miles per hour and that the Yellow Cab was running at a rate of forty-five miles per hour.

Karl Stevens, the driver of the Yellow Cab, testified that his cab had been parked on the south side of Grammont street, one and one-half blocks to the west; that a call had been received to go to the Alvis Hotel on De Siard street; that he was approaching Jackson street at a speed of not more than ten miles per hour and changed gears from high to second just before he reached Jackson street; that just as he entered the intersection he was making not over six or seven miles per hour; that he was four feet into the intersection when he first saw the Buick sedan about ten or fifteen feet away, traveling at the rate of forty or forty-five miles per hour; that he immediately applied his brakes and had come to a stop when the sedan, veering to the left, struck his left front fender and light with its right side. He says his car moved about two feet after he saw the Buick and applied his brakes and came to a complete stop.

It is the usual story. The driver of each car testifies .that he was driving carefully, at a moderate rate of speed, and that the driver of the other car was driving in a negligent, reckless manner at a high and unlawful rate of speed. Counsel for the defendants well says in his brief that all these conflicting statements cannot be true. He suggests that the whole matter can be determined by an examination of the physics of the situation. It is the theory of the plaintiff that his car arrived at the immediate spot of the collision first and that it was struck by the Yellow Cab, coming from the west, while the defendants claim that the Yellow Cab reached this spot first and had come to a complete stop when plaintiff’s car veered slightly to the east or left, struck the Yellow Cab on the left fender and headlight. If the two machines had been traveling at the same rate of speed, the driver of the Yellow Cab would have to be held negligent in either case, for the reason that Jackson street is a right of way street and the distance that each car had to travel before reaching the point of the collision would indicate that plaintiff’s, car entered the intersection first. Certainly, if the rates of speed of the two cars were approximately as was testified by the plaintiff’s witnesses, then it is clear that the driver of the Yellow Cab was grossly negligent and all the blame is upon him. The driver of the plaintiff’s car is corroborated in his testimony as to the rates of speed the cars were making by three occupants of the car and two disinterested eyewitnesses, strangers from Bastrop, La. They all agree that the Buick sedan was traveling at a moderate and lawful rate of speed and that the driver of the Yellow Cab did not stop for the intersection and was traveling at a reckless rate of speed, approximately forty-five miles per hour. It is true that Father J. C. Marsh, a witness for the defendants, testified that plaintiff’s car was going thirty or thirty-five miles per hour, but, while we have the greatest respect for the Reverend Father and hold him in highest esr teem, we cannot find that his estimate is correct. He states that at the time he was on the sidewalk talking to two of his parishioners, Messrs. F. X. Shaughnessy and L. H. Krogmire, and that his estimate of the speed was a mere guess, as he was not paying much attention to the car. He was standing close to where the collision occurred and could have seen it perfectly, but he says he did not see it. He heard the crash and lifted his eyes, saw the rear end of the Buick car swerve to the east, and, quick as a flash, it turned over and rested in the position which has been described above. Mr. Shaughnessy was standing with his back to the scene of the accident. The crash of the collision caused him to turn quickly, and he observed the rear end of the Buick swerve to the left or east, just as Father Marsh had seen. The testimony of Mr. Krogmire is to the same effect. The driver of the Buick sedan testifies that as soon as he realized that a collision was imminent, he turned to the east or left in an effort to avoid it. The driver of the Yellow Cab corroborates him in this. So it must be accepted as true that in the fraction of a second that immediately preceded the collision, the Buick sedan was turned somewhat toward the left and the front of it was evidently further toward the east than was the rear. But when Father Marsh and his two companions lifted their eyes they saw the rear end of the car swerve to the east instead of the front pointing in that direction. This clearly indicates that the Buick must have been struck a powerful blow to swerve the rear end around to the left in spite of the fact that, just prior to that instant, the driver had pointed his. front end .to the left. It is the theory of the defendants that this swerving of the rear end of plaintiff’s car to the left was caused by the driver running into the left front fender of the Yellow Cab with the right side of the Buick. But this argument will not hold. If the Yellow Cab had come to a full stop as is contended and plaintiff’s car was going at a moderate rate of speed, as the driver says he was, this kind of collision would not have destroyed the Buick as was done. If the Buick had been going at the rate of speed claimed by the driver of the Yellow Cab, it would have certainly knocked the cab out of its position and would have proceeded south without turning over.

Taking the opposite view, if the Buick sedan were struck by the Yellow Cab while •the Buick was. going at a rapid rate of speed and while the cab was practically ht a standstill, the result would have been negligible and the momentum of the Buick car would have been affected very little. It would have been impossible for it to have been wrecked as badly as it was and to have stopped and turned over at such a short distance from the point of collision. The fact that the rear end of the Buick did swerve to the left, in spite of the fact that the driver was attempting to turn the front of his car to the left, evidences the fact that the rear end had received a powerful blow from the right. A blow sufficient to produce this result must have come from an object having great momentum. This harmonizes perfectly with the testimony of all of the plaintiff’s witnesses. They all testify that the Yellow Cab was coming at a rapid rate and that just before the collision they heard the screech of brakes applied. The driver of the Yellow Cab testifies that he had changed to second gear and then applied his brakes. Under those conditions there would have been no screeching of the brakes. Furthermore, if he had been going that slowly and carefully he could have gotten his car out of the difficulty instead of standing still and receiving the blow as he says he did.

It is earnestly argued by defendants’ counsel that the fact that only the left front fender and headlight of the Yellow Cab were injured would indicate that the cab did not strike the Buick, but that the Buick sedan struck the Yellow Cab a glancing blow, as it (the Buick) was veering to the left. It is argued that if the Yellow Cab had struck the Buick, both fenders of the cab would have shown signs of the collision. The answer to that is, that at the moment of the collision, the front of the Buick was turned to the left or east and the Yellow Cab, coming straight from the west, did not and would not strike it with both fenders. All Yellow Cabs are known to possess powerful brakes. When the driver of this cab suddenly discovered that he was about to strike plaintiff’s car; he applied his brakes quickly so that, in spite of the momentum he had and retained until the moment of the impact, he stopped his machine immediately thereafter so that it proceeded no further.

In all automobile collisions at street intersections it is difficult to harmonize the testimony. In this case counsel for defendants argue earnestly that it is impossible for the results of the collision to be as they were under the testimony of the plaintiff’s witnesses, and he seeks to prove this by the laws of physics. It must be remembered that physics is a very exact science, and in order to apply the laws of physics we must have exact data, a thing that is impossible in a case like this. The trial judge saw all the witnesses and heard them testify. He observed their manner and knew the interest or lack of interest of each. He concluded from the evidence that plaintiff’s car was being driven at a moderate rate of speed on a right of way street, and that the Yellow Cab was traveling negligently on an intersecting street. We find no error in his conclusions. The preponderance of the testimony is in favor of the plaintiff, and the physical facts of the situation appear to us to be just as strong in his favor.

QUANTUM OF DAMAGES

Plaintiff sued for $763.50. The lower court gave him judgment for only $400, and he appears in this court asking that the judgment be amended and raised to the amount originally prayed for. A great deal of testimony was introduced at the trial of the case, and it appears that the court had difficulty in arriving at the proper amount for which judgment should be rendered. In fact, the case was reopened in order to take further testimony on that' point. When the case was reopened, testimony was introduced by the plaintiff which is to the effect that the sum of $432.10 will restore all parts of the injured car to the condition in which it was before the collision. The defendants offered some testimony which minimized the damage to a very great extent. Also some testimony was offered as to the value of the car before it was injured, and it was sought to make this value a standard by which to measure the damage caused by the collision. This court has held on numerous occasions that where one’s automobile has been injured in a collision caused by the negligence of another he has a right to have every injured part restored to its former condition, even though the cost of replacing the parts may be out of proportion to the estimated value of the machine before the injury. The lower court gave judgment for $400 but there is nothing in the record to disclose what that estimate was based upon. The defendants offered some testimony which placed the estimated damage very low. We think that these estimates left out several things that need to be replaced. Plaintiff produced two witnesses at the first hearing who placed the damage at $763.50 and $660.90, respectively. But when the case was reopened, he placed other witnesses on the stand who say -that the car can be repaired for $432.10. He is surely bound by this estimate and cannot contend for the higher figure. We think this last figure is as low as the court ought to fix the damage in view of the condition in which the car was immediately after the collision.

For the reasons assigned the judgment appealed from is- amended so as to increase the amount awarded to the plaintiff from $400 to $432.10, and as thus amended it is affirmed, with all costs to be paid by the defendants.


text:
    No. 4211
    Second Circuit
    MARTIN ET AL. v. BONNETTE
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)
    Argued before DREW, McGREGOR and CULPEPPER, JJ.
    Cook & Cook, of Shreveport, and C. H. McCain, of Colfax, attorneys for plaintiffs, appellees.
    J. A. Williams, of Colfax, attorney for defendant, appellant.
   McGREGOR, J.

On November 17, 1924, the defendant, A. V. Bonnette, bought a tract of land from G. H. Martin for a consideration of $634.44, for which he executed six special mortgage and vendor’s lien notes for $105.74 each, due in four, eight, twelve, sixteen, twenty and twenty-four months after date, respectively. The first four of the notes were paid during the lifetime of Martin. When Martin died on February 23, 1930, the last two of the notes whose due dates were July 17 and November 17, 1926, respectively, were in his possession with no mark on them to indicate that they were not valid outstanding obligations.

On March 29, 1930, the plaintiffs were duly recognized as the widow and heirs of Martin and were formally put in possession of all property belonging to his succession. Among the papers belonging to the succession were found the two last notes of the series described above, and on January 6, 1931, this suit was brought for the amount of the two notes, with interest and attorney’s fee. The prayer of the petition is for a personal judgment and the recognition of the special mortgage and vendor’s lien against the property.

At the time of the filing of the suit the defendant’s affairs were being administered in the bankruptcy court, and he filed a plea to the jurisdiction of the state court on that ground, but no disposition appears to have been made of the plea by the court. The defendant then filed his answer and alleged payment of the notes and asked that the mortgage be cancelled from the record. The payment alleged is claimed by virtue of an agreement entered into between Martin and the defendant under which defendant agreed to cut and market for the account of Martin all the timber on the land purchased from him. He alleges that for this service he was to receive as a credit on his notes a sum equal to ten per cent of the sale price of the timber so. marketed. He alleges further that the title to the land was defective and that Martin agreed to reimburse him whatever sum he should expend for curing the title by crediting it on his notes as a payment. He then alleges that the total commission on the timber sales and the cost of curing his title amounted to $449, and that this sum was retained by Martin as a credit on the two notes on which this suit is based. He alleges further that no settlement had ever been made between him and Martin and that, in calculating the various sums at the time of the filing of the answer, he discovered that he had overpaid the notes and he therefore prays for judgment in reconvention for the difference between $449 and the sum of the notes sued on.

At the trial the plaintiffs offered all their testimony, which was documentary. Defendant then sought to introduce parol evidence in support of the allegations of his answer to show that the notes sued on had been paid. The plaintiffs objected to the introduction of this testimony on two grounds, to-wit:

(1) That if the defendant was seeking to prove a debt against the plaintiffs on a demand in reconvention no one but the trustee in bankruptcy had that authority.

(2) That no parol testimony could be offered in support of the claim thereto for the reason that more than twelve months had elapsed since the death of Martin.

This objection was sustained and the minutes then show that “defendant offers to prove that the notes were paid by him before the death of G. H. Martin and that the payment was made before the party was adjudged a bankrupt, and the court refused to permit him to offer any evidence showing payment.”

A formal bill of exception to this ruling of the court was presented by counsel for defendant and the court in its per curiam states three reasons why he refused to admit the testimony, which are as follows:

(1) The facts pleaded cannot set out payment.

(2) The facts pleaded cannot be urged in compensation.

(3) The facts pleaded cannot be urged in reconvention since defendant is in bankruptcy and since more than twelve months have elapsed since the death of Martin.

We will discuss these reasons in reverse order. Defendant has no right to sue for any amount for the purpose of recovering personal judgment for his own benefit. If he has any rights they should be listed among his assets and turned over to the trustee in bankruptcy. Therefore he cannot be heard to ask for judgment in reconvention for any sum, whether the evidence to be introduced is parol or otherwise. Also, he and his trustee in bankruptcy are both prevented by law from proving any claim against the deceased by parol testimony after the lapse of twelve months.

The court is also right in ruling that the facts pleaded cannot be urged in compensation, but the testimony was not offered for that purpose. As we understand the case, the testimony was offered for two purposes, viz.: To show payment of the notes and to prove his claim, in reconvención for the excess.

We think the court is in error in holding that the facts pleaded do not set out payment. In his answer the defendant specially “avers that the notes were executed as set forth in the petition and the exhibits attached, but avers that they have all been fully paid and discharged long before the plaintiffs became the owners thereof.” He further alleges “that he fully discharged the above notes before the death of the payee, G. H. Martin.” After making these absolute allegations of payment, he proceeds to state how he discharged the notes as stated above in this opinion. The statement is clear that he had earned a certain definite sum of money by performing certain service for Martin during his lifetime and that he, Martin, had retained the money in his hands and had applied it as a credit or payment on the notes. It would be a great injustice to refuse to permit him to make this proof. It is not establishing a claim against deceased, but it is proving the fact of payment. To refuse to admit this testimony would establish a dangerous precedent. Many a note has been paid by cash without the note being delivered or marked paid. Under such a precedent as is sought to be established by the plaintiffs, in all cases where the holders of such note die, their heirs or assigns could successfully collect them again simply by waiting twelve months after the death of the holder before bringing suit. The testimony should have been admitted for the purposes of showing payment. It is just as proper to plead that payment was made by service rendered, property exchanged or any other manner as by cash. Defendant alleged that he paid these notes by leaving in Martin's hands cash which he would otherwise have been entitled to receive, and that this was done by special agreement and understanding.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and the case is remanded to the lower court with instructions to receive parol evidence to be restricted to establishing the payment of the note sued on, and to be further proceeded with in accordance with the views herein expressed. It is further ordered that the cost of this appeal be paid by the plaintiffs and that all other costs await the final determination of the cause.