text:
    No. 11,165
    Orleans
    HOLMES CO., LTD., Appellant, v. HILLER
    (February 27, 1928. Opinion and Decree.)

      (jSyllabus 5y the Court)
    1. Louisiana Digest — Prescription — Par. 107, 222.
    Act 78 of 1888 amending Article C. C. 3538 does not prohibit the admission of parol testimony to establish an interruption of the prescription of three years on open accounts. All it does is to establish the prescription of ten years in favor of accounts acknowledged in writing.
    2. Louisiana Digest — Prescription — Par. 179, 183.
    A partial payment is an acknowledgment of the debt and interrupts prescription.
    3. Louisiana Digest — Prescription — Par. 107, 178, 179, 183.
    A partial payment made on an acknowledged account is an acknowledgment of indebtedness of each and every item of the account and of the balance due on said account on the date of the partial payment.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    Action by D. H. Holmes, Ltd., against Edwin J. Hiller.
    There was judgment for defendant and plaintiff appealed.

      Judgment reversed.
    L. R. Wirtheimer, of New Orleans, attorney for plaintiff, appellant.
    B. Y. Wolff, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for $158.36 balance due on an account for merchandise sold and delivered.

The plaintiff alleged that on January 5th, 1926, the defendant admitted that he owed plaintiff one hundred and fifty-six and 36-100 dollars; that he agreed to take care of said debt within a reasonable time but that he has failed so to do.

By a supplemental petition the plaintiff filed a statement of accounts with the defendant showing the items of merchandise sold and delivered to the defendant from September 30th, 1920, to May 26th, 1922, inclusive, together with the payments made on account, the last payment having,been made on May 18th, 1923, by which statement it appeared that on that date, May 18th, 1923, there remained a balance due of one hundred and fifty-eight and 36-100 dollars.

It thus appears that a period of two years seven, months and seventeen days intervened between the last payment on account, May 18th, 1923, and the alleged acknowledgment of the debt, January 5th, 1926.

The defendant pleaded the “prescription of three years, as provided by Article 3538 of the Civil Code”, and a general denial.

There was judgment maintaining the plea of prescription and dismissing plaintiff’s suit.

Plaintiff has appealed.

Upon the trial of the case on the exception and the merits, Robert Leinhard, assistant secretary and treasurer of the plaintiff company, testified that in the early part of January, 1926, a few days after they filed suit against Mr. Hiller, he called at his office at D. H. Holmes & Co. and told him he had filed an answer to their suit, but the reason that he did it was to gain a little time as he was expecting some money, and that money would reach him in a short time, but by filing an answer he would gain a little time; his intention was to pay the debt; he promised to pay it when the money came in which he was expecting; the amount sued for is correct because the accounting and credit department is under his direct supervision; he acquires his knowledge from the books, and if any complaints had been made about the account being incorrect, 'he would know about it.

The defendant, Edwin J. Hiller, did not testify; therefore the testimony of the witness, Leinhard, remains uncontradicted and must be taken as true and establishing the correctness of plaintiff’s claim. The law requires only a preponderance of evidence and not moral certainty. X Starkie 514; Rose vs. Shaw, 144 La. 571, 80 So. 727; Dunn vs. Fire & Marine Ins., 109 La. 524, 33 So. 585; Goepper vs. Lusse, 30 La. 392.

In the case of Horton vs. Haralson, 130 La. 100, 57 So. 643, which was a suit on open account, of merchandise sold, the defense was that the accounts were not sustained by sufficient proof. The Court said:

“The testimony made out at least prima facie proof, and it was then for the defendants to prove wherein the testimony was not sufficient for the purpose offered.” Goepper vs. Tusse, 30 La. Ann. 392.

But the defendant contends that neither partial payments on account set forth in the itemized statement annexed to the petition nor the verbal acknowledgment of the account made by defendant to Leinhard are sufficient to operate as an interruption of the prescription of the account, because the law requires an acknowledgment in writing of the debtor. He relies upon Article C. C. 3538, as amended by Act 78 of 1888, p. 8’6, which reads as follows:

“The following actions are prescribed by three years:
“That on the account of merchants, whether selling for wholesale or retail * * *. That on all other accounts. This prescription only ceases from the time there has been an account acknowledged in writing, a note, or bond given or an action commenced.”

The last item sold by the plaintiff as appears hy the itemized account annexed to its petition is May 26th, 1922. This suit was filed January 11th, 1927, or four years, seven months and twenty-five days thereafter. Therefore, on the date of the filing of this suit the claim sued on was prescribed, unless the several partial payments made by the defendant in the years 1921, 1922, and May, 1923, or the verbal acknowledgment made by the defendant in January, 1926, proven by the above testimony operated an interruption of the prescription.

In the case of Bennett vs. Wakeman, 2 La. App. 376, the court said on p. 379:

“It is true also that a payment on a debt liquidated and certain interrupts prescription thereon; the payment being equivalent to an acknowledgment of the correctness of the account or debt.” C. C. 3520; 6 La. Dig., S. 167, p. 184; Whitworth vs. Ferguson, 18 Ann. 602; Walker vs. Cruikshank, 23 Ann. 252, 703; Lewis vs. Am. Creosote Works, 150 La. 196, 90 So. 566.

This statute of 1888 has been the subject of various and varying, interpretations although apparently so plain in language.

In the case of Sleet vs. Sleet, 109 La. 302, 33 So. 322, (1903), the court said on page 308:

“The only change that the statute makes in the article amended is in substituting for the wards, ‘all other open accounts,’ the words, ‘all other accounts,’ and the effect is that the prescription denounced is now made to apply to accounts stated or rendered, and verbally and tacitly acknowledged, as well as to open accounts not so acknowledged,” while the prescription of ten years only would apply to accounts acknowledged in writing.

In the case of Block vs. Papania, 5 Orl. App. 88, decided in 1908, the court said:

“Since the enactment of Act 78 of 1888 amending Art. C. C. 3538 a verbal promise before prescription has accrued is not sufficient to interrupt prescription.” Judge Moore dissenting.

On a writ of review, Block vs. Papania, 121 La. 683, 46. So. 694, the Supreme Court decided in April, 1908, that:

“The object and effect of Act 78 of 1888 is not to prohibit proof of an interruption of 'the prescription running upon accounts sued on which are governed by that prescription by reason of parol evidence, but to prevent such evidence, when received, having the effect of shifting the prescription of three years applicable to those accounts to a prescription of ten years.”

The present decision in no wise departs from that of Sleet vs. Sleet, 109 La. 303, 33 South. 322.

This decision was followed by 'this court in 1913 in Ludwig vs. Sussman, 10 Ct. App. 169, when the court said:

“Oral acknowledgments of open accounts serve only to interrupt the three years prescription, which thereupon begins to run anew; but from the time of an acknowledgment in writing said prescription (of three years) ceases to run, and a new and longer prescription begins to-wit: the prescription of five or ten years, according to the form given to such acknowledgment, by mere writing, or by a note, or bond.” 151 La. 254 (262).

In the case of Harper vs. Barton, 2 La. App. 317, Second Circuit (June 6th,, 1925) the court said:

“Under Article 3538 of the Civil Code, as amended by Act No. 78 of 1888, items in an account over three years old at the time suit is brought are prescribed.”

In that case the court disregarded partial payments made on account, ruling that a written acknowledgment alone could interrupt prescription, under the decision in Sleet vs. Sleet.

But in Bennet vs. Wakeman, 2 La. App. 376 (June 13th, 1925) the same court decided (p. 381) that it “must be governed by the settled jurisprudence as announced in Block vs. Papania,” 121 La. 683. In an exhaustive and lucid opinion the court said that the Question before it was as follows: “We are to pass only upon the Question as to whether prescription on an open account can be interrupted otherwise than by a written acknowledgment of the account or by the giving of a note or a bond for the indebtedness.”

The court said: “It is our conclusion that the act referred to (1888) has no reference whatever to the interruption of prescription on open accounts. The Code does not say, nor does it imply, that prescription cannot be interrupted except by writing.” The court then proceeds to decide that in case of a written acknowledgment of the account, it becomes prescribed by the ten years prescription instead of the prescription of three years which applies to all other accounts acknowledged otherwise than in writing. The syllabus reads as follows:

“A written acknowledgment of an open account is not necessary to interrupt prescription under Article 35'38 of the Civil Code. A verbal acknowledgment of the debtor will suffice.”
But whatever fluctuations might have existed, the case of Bennett vs. Wakeman, 160 La. 407, 107 So. 286, anchors the jurisprudence. In that case, decided in January, 1926, the court affirmed Bock vs. Papania, 121 La. 683, 46 So. 694, and said:
“Parol acknowledgment of account interrupts three years prescription, but it does not shift prescription of three years to one of ten years.”

But it is contended that inasmuch as all partial payments on account must be Imputed under Article C. C. 2166 “to the debt which has been longest due,” the partial payments made by Hiller must be presumed to have been made by him as an acknowledgment alone of the items “longest due” and as a payment of them “pro tanto leaving unacknowledged and prescribed all other subsequent items which the partial payments did not extinguish. The argument refutes itself. If correct, it would have this result that a partial payment on an account composed of sundry items, some prescribed, and others not prescribed, the debtor’s partial payment would be imputed to an item prescribed leaving the others outstanding. But we are of the opinion that a partial payment made on an acknowledged account is an acknowledgment of indebtedness of each and every item ojf the account and of the balance due on said account on the date of the partial payment. It is not the payment on account of any particular item composing the account, but a partial payment and acknowledgment of the account as a whole for the balance due on the date of said partial payment. If the debtor intended to extinguish any particular item it was for him to designate it. He can no more restrict his acknowledgment to the debt longest due than to the one he had “most interest in discharging”.

But in addition to the above, the allegation and the proof in this case are that Hiller acknowledged awing the amount sued for, which was the balance of the account he had contracted with the plaintiff and that he promised to pay the same. There is no question of imputation of payment involved in .this acknowledgment. It is an acknowledgment of the correctness of the account sued upon as a whole, and not divided into items. That acknowledgment interrupted the prescription of the balance due upon the account, as an account, whatever might be said of the items composing it.

The plea of prescription was ’embodied in the answer on the merits and both tried together.

This enables us toi pass upon the merits, and we find that the plaintiff has established the correctness of his demand.

It is therefore ordered that the judgment herein be reversed and annulled. It is further ordered that the plea of prescription of three years filed herein be overruled, and it is now ordered that the defendant, Edwin J. Hiller, he condemned to pay to the plaintiff herein, D. H. Holmes Company, Ltd., one hundred and fifty-eight and 36-100 dollars with five per cent per annum interest fro(m January 5th, 1926, till paid and all costs.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 11,147
    Orleans
    INTERNATIONAL ACCOUNTANTS SOCIETY v. SANTANA
    (February 20, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Minors—Par. 11.
    Ratification of a contract executed during minority must be made with the full knowledge of the disability, and must clearly evince an intention to abandon all legal right to question the validity of the contract upon that ground.
    2. Louisiana Digest — Minors—Par. 5, 11.
    The mere payment of three small installments upon a promissory note after majority is not of itself sufficient to constitute ratification.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    Action by International Accountants Society against Lawrence' C. Santana.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellee.
    Deutsch & Kerrigan, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit on a promissory note executed by a young man, now at the age of majority, during his minority. Ratification of the obviously invalid contract is claimed, upon the basis of three payments of five dollars each made after majority. No evidence of intent to ratify has been offered nor is there anything to suggest that defendant knew when making the payments that the note he had given was of no legal value. On the contrary, defendant testified that he had no intention to ratify and no knowledge of the invalidity of the note. He had no ' sooner executed the note, which was given for certain lessons in accountancy to be sent him by mail, than he regretted it and tried to back out. He was held to his bargain and importuned for payments which, at long intervals, and with great difficulty, and in small amounts, were obtained. It is these payments which it is claimed amount to ratification.

The law, as we understand it, is op-' posed to this contention. We extract the following authorities from counsel’s brief which seem very clearly to establish the contrary:

“The ratification of a contract can only be adduced from facts, when those facts evince clearly and absolutely the intention to ratify.
“The validity of any ratification — express or tacit — can legally rest but upon a previous and full knowledge of the contents of the unauthorized or defective acts to which the ratification is to impart a posthumus and retroactive validity.”

Hamilton vs. Hodges, 30 La. Ann. 1290 or 1294.

“Ratification and confirmation must be accompanied with full knowledge of the defect waived, and a clear intention and agreement to waive it under the Code.”

Knight vs. Mentz, 23 La. Ann. 538.

“Ratification will not be readily inferred, especially when there is good reason for holding that the contrary was the intention.”

Bryant vs. Levy, 52 La. Ann. 1649 at 1664, 28 South. 191.

“Parties are not held to have ratified proceedings which are null, when they act in ignorance of such nullities, and do not announce their intention of curing them.”

Doucet vs. Fenelon, 120 La. 18, 44 South. 908.

“An act of ratification must contain an expressed intention of supplying the defect' on which it is founded.”

State vs. N. O. Land Co., 143 La. 858, 79 South. 515.

“To execute a voluntary ratification, under C. C. Art. 2272, the act must be executed with the intention to confirm and ratify, and must evince such intention .clearly and unequivocally.”

Otis vs. Texas Co., 153 La. 384, 96 South. 1.

“An act of confirmation must be of such .a clear and unequivocal character as to establish a clear intention to confirm the contract after knowledge that it is voidable.
“Where an infant subscribing for a scholarship in a course of correspondence instruction in a correspondence school made a partial payment of the price after attaining full age and thereafter returned the property lent him by the school under the contract, and he did not derive any benefit from the contract after he came of age, or retain any benefit previously derived therefrom which could be returned, there was no ratification by him after attaining full age.”

International Text Book Co. vs. Connelly, 99 N. E. 922; 206 N. Y. 188, 42 L. R. A. (N. S.) 1115, affirming Jdgt. (1910) 125 N. Y. E. 1125; App. Div. 939.

For the reasons assigned the judgment appealed frdrn is reversed and it is now ordered that there be judgment in favor of defendant dismissing plaintiff’s demand.


text:
    No 11,105
    Orleans
    FERGUSON v. ADAMS MOTOR CAR COMPANY, INC.
    (January 30, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 32, 33.
    It is the duty of the vendor to make himself clear as to the extent of his obligations. Any obscurities or ambiguities will be construed against him.
    2. Louisiana Digest — Sales—Par. 84, 243.
    Plaintiff, in a suit to rescind a sale and recover the purchase price, must prove hidden defects in the thing sold which could not readily be discovered by "inspection.
    Appeal from First City Court, Section “C”. Hon. Wm. Y. Seeber, Judge.
    Action by John B. Ferguson against Adams Motor Car Company, Inc.
    There was judgment for defendant and plaintiff appealed.

      Judgment reversed and case remanded.
    Paul A. Scmpayrae, of New Orleans, attorney for plaintiff, appellant.
    W. P. Mouton, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff asks judgment for $361.56, the purchase price paid by him to defendant for a Chandler automobile engine and two automobile fenders plus freight and drayage charges.

Prom a judgment dismissing the suit plaintiff appeals.

Plaintiff resides in Baton Rduge and is the owner of a Chandler automobile. Defendant is a Chandler automobile dealer in New Orleans. Plaintiff’s automobile was damaged in an accident to such an extent that plaintiff considered the purchase of a new engine, and sought and obtained a quotation from defendant of $725.00. Defendant informed plaintiff that it had an engine in stock in New Orleans which ' was as good as new which he would sell for $250.00. Whereupon plaintiff came to New Orleans and examined the engine which was demonstrated by defendant’s mechanic. He expressed satisfaction with it and ordered it shipped to Baton Rouge, giving his check in payment for the engine and two fenders which he also bought.

When the engine arrived in Baton Rouge plaintiff in company with a local automobile dealer examined the engine and, without removing it from the crating in which it was packed, refused to accept it and demanded the return of his money. He justifies his action upon the ground that several parts such as gear shift levers and fan were not shipped with the engine and further upon the ground that a dust pan designed to protect the engine from dirt and dust had been broken off, as plainly appeared by the broken edges of the pan which he alleges were oiled and filed.

The testimony concerning whether the missing parts formed part of the engine or not is far from proof of the affirmative, but it is admitted that these parts were on the engine when exhibited to plaintiff in defendant’s place of business in New Orleans, and it is not contended that plaintiff was advised that they were to be excluded from the sale. As to the broken part there is no evidence that it was essential to the operation of the engine. In any event this defect might easily have been discovered by examination when the engine was demonstrated. No effort was made to use the engine, which was not removed from the packing. It is contended that defendant represented the engine to be new but defendant’s president says that it was guaranteed to be as good as new, and his statement is fortified by the fact that a new engine cost nearly three times as much as plaintiff was advised.

Only one of the fenders arrived with the engine, the other being shipped several weeks later. It is argued that this delay was a breach of the contract because time was of its essence. The delay in shipment is explained by defendant to our satisfaction and does not appear unreasonable in view of the fact that it had to be ordered from the factory.

We find no sufficient reasdn in the record to justify plaintiff in his refusal to accept delivery of the engine and fenders. We believe, however, that the parts which were attached to the engine when exhibited to plaintiff may fairly be considered to form part of his purchase and should have been shipped with the engine. R. C. C. 2474. We are unable to determine the value of these parts and will therefore remand the case for the purpose of admitting evidence on that point.

The judgment appealed from is therefore reversed and the case remanded for further proceedings consistent with the views herein expressed.


author: JONES, J.

text:
    No. 11,064
    Orleans
    BARNES v. AMERICAN CAN COMPANY
    (January 2, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 160 (j).
    Where plaintiff admits that the allegations of his petition as to total permanent disability to do work of any reasonable character are erroneous, and where the evidence shows that he has earned during the intervening three and one-half years since the accident, for the greater part of the time, as much as he earned before and there is no definite proof as to actual loss of time and wages by reason of the injury, the suit will be dismissed.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Marshall Barnes against American Can Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    J. Olin Chamberlain, of New Orleans, attorney for plaintiff, appellee.
    John E. Jackson, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for the maximum amount, of colmpensation, four hundred weeks at twenty dollars ($20.00) per week, a total of eight thousand dollars ($8000.00).

The petition, filed on October 14th, 1924, alleges as follows:

(1) Plaint^f, while' employed as a millwright by defendant for forty-eight dollars ($48.00) per week, on October 14th, 1923, fell eight or nine feet from a scaffold, struck his right foot on a fly wheel, fractured and dislocated the bones thereof;

(2) He was treated without benefit by defendant’s nurse at the plant for nine days and then on her advice consulted Dr. Nelson, physician of defendant, who after five weeks ineffectual treatment, had plaintiff secure an X-ray of the injured foot, which showed a fracture and two complete dislocations;

(3) Dr. Nelson then sent plaintiff to a bone specialist, Dr. Mcllhenny, who advised, after four months’ ineffectual effort, that the injured member be encased in a plaster east for six months, but defendant then refused further medical treatment;

(4) His injury has steadily become more painful and he is totally disabled from working as a millwright for ■ which he is exclusively and especially qualified, and such total disability will continue, unless a cure of his injury is effected by use of plaster cast;

(5) He is the sole support of six children and fears he may not be able to use his foot at all, if the plaster cast is used, and is, therefore, unwilling to hazard it;

(6) This injury, which was made known to the manager, chief engineer and timekeeper of defendant immediately thereafter, has produced a permanent total disability to do work of any reasonable character.

To this petition defendant filed an exception of no cause of action, which was overruled by the trial judge and is urgently pressed here. As we have reached the conclusion that plaintiff has failed to make out his case for reasons set forth below, we will not consider the exception herein.

Defendant answered, admitting employment at prj.ce stated, a slight injury, treatment by its nurse and its physician, but denies fracture, dislocation or any showing thereof by an X-ray photograph. Defendant then admits treatment by Dr. Mcllhenny, but denies all allegations of permanent injury and recommendation for a plaster cast by Dr. Nelson and Dr. Mcllhenny.

Further answering, respondent avers that plaintiff worked continuously for defendant at same task and for the same wages for all but seven and one-half days from the date of the injury until the day this suit was filed; that he never complained of being unable to perform the same work and never demanded compensation; that he left defendant’s employment with a letter of recommendation almost a year after accident, because the work was almost finished and he had secured a new position.

There was judgment below for plaintiff as prayed for and defendant appealed suspensively.

While the appeal was pending in this court, the stenographer of the lower court died before he could transcribe his notes and the case was remanded for a new trial. The second hearing resulted in a like judgment for plaintiff and defendant has again appealed.

The plaintiff testifies in part as follows:

He only stayed away from work three or four days. He made full time and considerable overtime, as they told him the more he was on the foot the better; he worked nine hours a day after the accident and all possible extra time to get more money. There was no difference in his work at all after the accident; he got the same instructions under the same superintendent, and did not complain about the work being too heavy; tried to get all the extra work he could and never missed an opportunity to make overtime; he complained about having pain, but stayed on the job one year; kept up Mcllhenny’s treatment at home of hot and cold baths for foot all the time; bought two pairs of Dr. Spencer’s correction shoes . and wore them out, but didn’t have price of $14.50 for a third pair.

When he left the American Can Company he left there to get another job with a letter of recommendation, but failed to get it because he couldn’t work on a scaffold; did no work until December 15th, but filed suit three days after he quit American Can Company.

A millwright does contract jobs and does not have a regular job all the time; during the latter part of 1924, after first trial of this case, he worked for the Reynolds Dredging Company for a while, the first job lasting about six weeks; was with them on three different jobs, probably about nine months, doing rough carpenter work, not as hard as millwright work, but standing up; he left the Higgins Lumber Company because they sold out and fired him; he' received seventy-five cents per hour, the same rate of pay he got with the American Can Company. He didn’t carry a cane while working, and the day of the second trial was first time he had used stick in streets since former trial; has done very little millwright work since he left can company; he had a job for them overhauling barges which was pretty heavy carpenter work and required him to stand most of the time.

He next was employed on a little carpenter job repairing floors, but sat down on this jo'b. He worked for the Algiers Iron Works as ship carpenter two or three weeks at seventy-five cents per hour, but wasn’t able to stand up on steel dock; on March 23rd, 1927, he went to work for the American Sugar Refinery, where he was working on April 20th, 1927, date of second trial, making sixty or sixty-one and one-half cents per hour. Mr. Beeson was the only official of the American Can Company he ever told he wanted compensation, but he told him he would have to have something to live on as he would not be able to work when that job was finished; if the job with defendant had not been finished he would have worked right along getting the same ■ straight time and all overtime. His foot is no better. He has been without a job simply because he couldn’t get work.

When asked:

“Q. Then when your petition says you are permanently totally disabled that is not right, is it?
“A. I don’t claim I am permanently totally disabled.”

His foot hurts him all the time, but more when at work; he has a wife and six children and must work; worked for Reynolds Dredging Company in January, February and part of March, 1925, then began again in latter part of May and worked until Christmas but missed probably half of the time on account of his foot, with can company’s foreman’s knowledge did less work while there after accident; still suffering pain in foot and unable to walk normally; hasn’t earned half as much since he left can company. He admits he has four children working, who support themselves.

On rebuttal Barnes testified that he never had a serious injury to his right foot or leg other than the one he suffered at the American Can Company. That he never, prior to this accident, had either a fracture of that ankle or a badly set dislocation; only a sprain, and never so stated to Dr. Nelson; saw Mr. Cefalu, who was a labor foreman, about once a month while on Orleans job.

Gossett, a witness for plaintiff, testified that he was employed by the American Can Company and was working there about August 14th, 1923, as a millwright; knew Barnes, but didn’t see accident; believed Barnes to be incapacitated after the alleged accident, but didn’t know whether Barnes was actually suffering or not, but Barnes was limping and couldn’t get around as well after accident; he wouldn’t hire Barnes himself now for millwright work; he and Barnes only worked in the American Can Company a day or two before the accident; they worked in different rooms and not together; he didn’t see what kind of work Barnes was doing; he did not know as a matter of fact whether Barnes could work as well as he could before the accident, but so believed; he didn’t know how much or how little work Barnes did after the accident as he wasn’t with him, though he saw him frequently.

Dr. Louis C. Spencer, offered as an expert on behalf of the plaintiffs, testified, on direct examination:

That Barnes complained of an injury about a year old and walked with a limp; had swelling around the right ankle on the outside of the foot, which was painful to touch and sensitive to motion of the foot; he found no symptoms of infection caused by other maladies after more or less exhaustive research. In his opinion there was very little that could be done for Barnes other than to order a shoe which would give some support for his foot. He had not seen Barnes since the former trial until two or three weeks ago, and again the morning of this present trial, and from his observation and examination of Barnes he was ■ of the opinion that Barnes’ injury was incurable.

Barnes in his opinion is unable to perform the duties of a millwright, or any other duties which require the constant physical exertion or the lifting of heavy 'weights, or strenuous labor; Barnes was only capable of performing work of a sedentary nature, as he cannot be on his feet; Barnes had an atrophy of about one inch in circumference of the right calf which, in his opinion, is indicative of actual, disability on that side.

On cross-examination he testified:

Barnes told him he had been treated by other doctors and he prescribed very little treatment as ha looked upon the case as one which he couldn’t help very much, but he ordered shoes with a rigid sole.

Barnes’ foot could have become hurt in any number of different ways. That when he first saw Barnes on October 20th, 1924, he was very much inclined to believe that he had arthritis and he did everything to prove the presence of arthritis but failed and was then forced to fall back on the theory of injury; he accepted as true the statement Barnes gave him of how his foot became injured; Barnes, in his opinion, has been unable to do any heavy work since his injury, or working requiring him to stand on his feet; this it was his opinion confirmed by his very recent examination.

He would he very much surprised if the testimony in the case brought out that Barnes never stopped the work he had been doing and had continued to do the same work he had done since his injury and would think it unusual.

On re-direct examination, he testified:

That Barnes never had a flat foot on the right side, but he has a flat foot on the left side; that at first when Barnes came to him he got the impression that Barnes was a malingerer and took all Barnes said with a grain of salt, but to the best of his knowledge and belief, because of atrophy, Barnes was telling the truth; it is possible Mr. Barnes might have strength of will sufficient to favor his leg constantly and thereby produce an atrophy, but that possibility is very remote.

On recross-examination, Dr. Spencer testified :

That Barnes did not have any dislocations or fractures that he could make out, and he thinks that the allegation in Barnes’ petition to the effect that he had fractures and dislocations was a mistake.

On redirect examination Dr. Spencer testified:

That as a rule fractures leave evidence for many years, if not permanent, but dislocations might leave no traces; that the injury to Barnes was of the soft tissue and not of the bone.

Dr. Paul A. Mcllhenny, expert medical witness on behalf of defendant and appellant, testified:

■ Barnes applied to him for treatment, in the early part of January, 1924; and gave the history of having fallen and sustained an injury to his right foot, but, on examination, he found Barnes’ right foot held in a position of a slight abduction, and, when standing on it, it assumed a position commonly termed “flat foot” in comparison with the left foot; though he also showed what is commonly known as “flat foot” on the left side.

His right foot showed a contraction of the muscles on the outer side of the ankle, commonly referred to as the abduction of the foot. His diagnosis was “traumatic flat foot”, a condition probably produced by a blow producing condition of pain in the foot, in which the muscles held the foot in a position of abduction which was nature’s effort at an attempt to splint the foot and hold it in a position less painful than any other position. He strapped the foot carefully and massaged it regularly. Barnes reported regularly for treatment for two months, during which time he invariably reported benefit. A corrective heel was ordered for use on the shoes he was wearing, which was higher on the inner edge than the outer edge and projected forward anywhere from one-quarter to three-quarters of an inch, forming a normal heel. At the end of that time he told Barnes he considered him normal and that he would have a perfectly useful foot: as a precaution he advised him to continue the hot and cold baths at home as previously recommended in order to increase the circulation in his foot. If he would do this he had no doubt he would have a perfect functional result and a perfectly useful foot; that he discharged Barnes because he considered him relieved .of his condition; he was suffering no pain when he was discharged and at that time he considered him well able to return to and do work which required him to stand on his feet all day; that he was thunder-struck when he heard that Barnes had filed suit for damages.

In his opinion Barnes had flat feet prior to the injury as indicated by the condition of his left foot, and his condition would have been relieved as long as he used the corrective heels; the blow caused pain which produced a contraction of the muscles on the outer portion of the leg, which might have been caused by a sprain in the ankle.

The medical profession is not absolutely sure what produces and does not produce atrophy; that a lesion in the nerve can produce atrophy; inflammation above can produce atrophy below; disuse will produce it when produced by inflammation in a joint or simple disuse from keeping the parts still; he does not know what condition has developed in Barnes’ leg since March, 1924, when he thought Barnes was able to go back to work.

On redirect examination he testified that an atrophy of one inch in a man’s leg would not keep him from using that leg, and that it might make some appreciable difference in the use of the leg if the man had an occupation where he had to do a great deal of running or something of that sort. He found no dislocation or fracture in Barnes’ foot and Barnes’ petition is in error when he says that at the end of three or four months he advised him that continued treatment would produce no result as far as cure was concerned, and that the only cure would be by placing his foot in a plaster cast for six months or more; that he did not advise him in that respect at all. He did not advise Barnes as alleged in Barnes’ petition, under Article 16, that he could do nothing further in the treatment of his injuries or that said injury was incurable unless he had his foot and ankle placed in a plaster cast for six months or more. If treatment used did not produce results, plaster cast might be necessary-after foot had been manipulated under an anaesthetic and contracted muscles strapped.

Dr. L. J. Menville, expert radiologist, witness for defendant, testified:

That he took an X-ray picture at the request of Dr. Nelson of Mr. Barnes’ right ankle, which was produced and identified in court, and upon examination of same testified that it was “suspicious for old fractures of the external merleods, arthritis of the articulation”, the merleods being the lower portion of the external part of the leg, and arthritis an inflammation in the joint structure between two bones; that the picture shows an arthritic infection; the result of trouble in the articulation between the two bones as evidenced in the X-ray picture by an increased density of the parts; that the picture and his report thereon was made November 21, 1923.

The suspicion of old fracture must have existed a long time prior to October 14, 1923.

He found no fracture in Barnes’ foot; no suggestion of a dislocation, but if bone was properly put back in place, a dislocation would not show and the X-ray would not have shown evidence of injury to soft tissue after six weeks nor at any time after accident occurred.

If the suspicion of an old fracture was correct that he would say the fracture had existed for many, many months, probably eight to twelve months, or thirteen to fourteen months.

Dr. Nelson, who confirmed Mcllhenny as to Barnes’ ability to work after treatment, swears Barnes admitted to him a prior injury and he sent Barnes to Dr. Mcllhenny because he was suspicious of his being a malingerer.

Beeson, superintendent of defendant company, testified that Barnes worked in the sáme way, at the same kind of work for same pay, after the accident until October 11th, 1924, making much overtime on Saturday afternoon, Sunday and holidays; that Barnes often complained of his foot, but never said work was too hard, and finally quit to take a new job with his letter of recommendation, because practically all of defendant’s machinery had been installed and they had nothing more for him.

Buryant, manager, confirms Beeson.

Cefalu, a labor foreman of the Reynolds Dredging Company and of its successor, the Orleans Dredging Co., testified that plaintiff worked as a carpenter about eighteen months for their companies; that he often saw. him on his- trips down to the canal, putting cabins on barges and, if necessary, climbing ladders and standing on scaffolds, that he made seventy-five cents per hour, never complained, was a good steady worker, sometimes making overtime on Sundays. On cross-examination he testified that Barnes might have laid off two or three days at a time without his seeing him, as Campbell was Barnes’ boss and he had charge of the negro labor.

It is thus seen that plaintiff has admitted that his allegation as “to permanent total disability to do work of any reasonable character” is totally unfounded and that there is little or no proof that his inability during the intervening three and one-half years to get work is due to his injury. On the contrary, he testifies that millwright work is more or less temporary and hard to secure at times.

Although he has doubtless suffered since the accident with his foot, the record bristles with evidence that for the greater part of the time since the accident he has been employed as advantageously as prior thereto, and there is no definite proof as to exact periods of idleness and non-employment, even if that non-employment were proved to have been caused by injury, a conclusion by no means proved by this record.

In the case of Eddie Wilson vs. Lyon Lumber Co., No. 9925, decided June 20th, 1927, and not yet reported, this court held that a partially disabled employee could recover only for the difference in wages earned by him before and after the accident, even if the' injured party had worked with considerable pain under the mistaken advice of the defendant’s doctors that such exertion' would prove beneficial.

On this, point see also:

Branchi vs. Board of Commissioners for the Port of New Orleans, 147 La. 281, 84 So. 657.

Chancellor vs. Continental Lumber Co., 6 La. App., p. 390.

Fuller vs. Robinson Construction Co., 5 La. App. 241.

Although this court, along with all the other appellate courts of the state, has invariably construed the compensation statute liberally, plaintiff must prove financial loss caused by the injury by a preponderance of the evidence, for the statute is only intended for financial compensation and not for general relief.

Sterns vs. Ohio Oil Co., 3 La. App. 81.

For above reasons the judgment below is ■reversed and it is now ordered that plaintiff’s suit be dismissed at his cost.


text:
    No. 11,037
    Orleans
    PRESSNER v. WHITE BROTHERS COMPANY
    (December 12, 1927. Opinion and Decree.)

      (.Syllabus by the Court)

    1. Louisiana Digest — Execution—Par. 197, 199.
    A judgment creditor who seizes the property of a third person is liable in damages. The circumstances under which the seizure is made may serve in mitigation.
    Appeal from the First City Court, Division “B”. Hon. Val. J. Stentz, Judge.
    Action by Jake Pressner against White Brothers Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. Levitan, of New Orleans, attorney for plaintiff, appellee.
    Frank S. Norma; Norma, Breckwaldt & Schwartz of New Orleans, attorneys for defendant and appellant.
   WESTERFIELD, J.

This is a suit for damages resulting from the unlawful seizure of plaintiff’s household, goods. Judgment was awarded plaintiff in the sum of $25.00 and defendant has appealed.

Plaintiff answers requesting an increase of the award.

Defendant obtained a judgment against Bennie Pressner in the First City Court for a balance due on merchandise purchased. Bennie Pressner resided with his father, Jake Pressner, at No. 1814 Melpomene street. Defendant caused a fi. fa. to issue and placed a keeper upon the premises. In the afternoon of the same day upon advice of counsel Jake Pressner made the necessary affidavit and after some delay the keeper was discharged and the seizure released.

No effort is made to justify the seizure but good faith is claimed, upon the ground that the son deceived the defendant as to his resources and ownership of a battery business at that locality, and also because both father and son lived in the same house.

Whatever may have been the difficulties which the defendant encountered, in his effort to collect the son’s debt, and no matter how the son regarded his obligations, the father was not the judgment debtor and his property could not be seized for his son’s debt. A more careful investigation of the son’s financial standing and moral responsibility might have revealed him, as an undesirable credit hazard, and more care in executing the judgment would have relieved plaintiff of the vexation of an illegal seizure.

In Connell vs. Bernhardt Paint Co., 6th La. App. 862 (163 La. 587, 112 South. 495), we held the sheriff liable in damages for a similar seizure, though he acted upon advice and instruction of the counsel of the judgment debtor. There could be no question of bad faith there, nevertheless, we held, in consonance with the jurisprudence, “The sheriff, however, must know that the property seized is the property of the debtor and he takes the property of third persons at his peril”. In the cited case the judgment debtor’s name was John R. Connell and the furniture seized was on the premises occupied by the judgment debtor, but belonged to his father whose name was John P. J. Connell. Concerning these circumstances we said: “The similarity of the names of father and son and the fact that the furniture was found in the premises occupied by the debtor are circumstances, which though they do not excuse must be considered in mitigation of the conduct of the defendant.”

In this case we think the amount allowed by the judgment too small and will increase it to $100.00. We are aware that other cases may be cited in which we have awarded larger sums under apparently similar conditions, but each case must be determined by its special circumstances.

For the reasons assigned the judgment appealed from is amended by increasing the award from $25.00 to $100.00 and in all other respects it is affirmed.


author: WESTERFIELD, J. CLAIBORNE, J.

text:
    No. 11,028
    Orleans
    GRIFFIN v. HOTARD
    (February 24, 1928. Opinion and Decree.)
    (May 8, 1928. Writ Refused by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 153, 154, 160 (i); Insurance— —Par. 166.
    Under the compensation statute neither the principal, who pays compensation to an employee of a sub-contractor, nor an employee, now his beneficiary, has a cause of action against an insurer of the sub-contractor unless and until an award of compensation has been made or agreed upon, or the employer becomes insolvent, or execution upon a judgment for compensation is returned unsatisfied.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Almeda Griffin against Theodore O. Hotard.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    J. S. Goutheaux, of New Orleans, attorney for Almeda Griffin, plaintiff, appellee.
    Edward Rightor, of New Orleans, attorney for Employers’ Liability Corporation, defendant, appellant.
    Milner & Porteous, of New Orleans, attorneys for Theo. O. Hotard, appellant.
   WESTERFIELD, J.

Plaintiff, on her own behalf, and on behalf of her minor children, sues for compensation for the death of her husband, Willie Griffin.

The defendant, Hotard, who was the general contractor for the erection of a building, in the construction of which Griffin was killed, answered, averring.that when killed Griffin was employed by a nonresident sub-contractor, Thomas B. Moulding Brick Company, Inc., of Chicago, which corporation carried compensation insurance with the Employers’ Liability Assurance Corporation of London, and called the insurance company in as co-defendant.

Plaintiff thereupon filed a supplemental petition, by which she adopted the averments of the original defendant in its answer in so far as they affected the liability of the Thomas B. Moulding Brick Company and its insurer, the Employer’s Liability Company, and prayed for judgment against all three defendants in solido. The Brick Company was served by process directed to the secretary of state. No appearance was made on its behalf, and no default taken, consequently it is out of the case.

The Employers’ Liability Company filed an exception of no cause of action, which was overruled and judgment rendered against it for 300 weeks at $8.58 per week. No judgment was rendered against Hotard, who was thereby absolved from liability. Plaintiff and the Employers’ Liability Company have appealed.

In so far as the court a quo failed to condemn Hotard its judgment is clearly erroneous. He was the principal contractor and under the plain provisions of the law liable for injuries, or death, of employees of sub-contractors. See Sec. 6 of the Act.

The remaining question is whether the surety of the sub-contractor can be condemned in these proceedings, either at the instance of plaintiff, who prays for a judgment, in solido, with the defendant Hotard, or at the instance of Hotard, who prays for a judgment in warranty.

The following provisions of the law are of interest:

Under Section 6, paragraph 2, of the Compensation Act, it is provided:

“Where the principal is liable to pay compensation under this section, he shall be entitled to indemnity for any person who would be liable to pay compensation to the workman independently of this section and shall have a cause of action therefor.”

Paragraph 3 of this section reads:

“Nothing in this section shall be construed as preventing a workman from recovering compensation under this act from the contractor instead of the principal.”

Paragraph 4 provides:

“A principal contractor, when sued by an employee of a sub-contractor or his dependent, shall have the right to call in that sub-contractor or any intermediate contractor or contractors as defendant or co-defendant.”

Section 23 reads in part as follows:

“That no policy of insurance against liability arising under this act shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to compensation all installments of the compensation that may be awarded or agreed upon, and that this obligation shall not be affected by any default of the insured after the injury, or by any default in the giving of any notice required by such policy, or otherwise. Such agreement shall be construed to be a direct obligation by the insurer to the person entitled .to compensation, enforceable in his name.”

Section 25 reads in part as follows:

“That if any employer shall carry insurance against liability under this act, and said employer shall be or become insolvent, or any execution upon a judgment for compensation be returned unsatisfied, an employee of such employer, or the dependents of a deceased employee, who shall be entitled to payment under this act, may enforce their claim to payments against the insurer of such employer.”

It will be observed that the law contemplates that the principal contractor shall be liable to the employee of the subcontractor and gives to the principal contractor a right of action against the subcontractor, and against any person who, but for the section making the principal liable, would be liable to the employee (in this case the insurer).

The employee, who is the subject of particular concern, is given a right of action against the insurer but only when compensation is awarded or agreed upon (under Sec. 23), or when the employer becomes insolvent or execution upon a judgment for compensation is returned unsatisfied (Sec. 25). See Thompson vs. Levert, 2 La. App. 159.

The act contemplates that there shall first be- a default on the part of the employer before a cause of action can arise as against the insurer. This arrangement does not seem extraordinary and certainly not inconsistent with the principles of law governing suretyship. Nor is there involved in this construction any abatement of the paternal administration of the compensation statute in the interest of the employee, by the courts of this and the other states where it obtains.

We are not considering formal rules of procedure which the law (Par. 4, Sec. 18) implies we should ignore, but a matter of substance, the conferring of a right of action, where ordinarily there is none, and as was said in Benjamin vs. Standard Accident Insurance Company, 152 La. 874, 94 South. 428:

“Counsel say that mere technicalities cannot avail in suits under the compensation act * * *. The technicalities which are discountenanced by the Workmen’s Compensation Act are those of procedure, not • those which go to the merits of the case. The latter are not properly speaking technicalities but matters of substantive law.”

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in plain■tiff’s favor and against Theodore O. Hotard, condemning the said Hotard to pay plaintiff $8.58 a week for 300 weeks, beginning March 26th, 1926, with interest upon each installment from its due date at ihe rate of 5% per annum, with all costs.

It is further ordered that the right be reserved to Theodore Hotard to claim in appropriate proceedings whatever may be due him by the Employers Liability Corporation of London, England, by reason of this award.

CLAIBORNE, J.

Dissenting.

Griffin was a laborer; he was employed by Thomas Moulding Brick Co. of Chicago, a sub-contractor on a building; the Employer’s Liability Assurance Co. signed their compensation bond; Griffin was killed in the building; his widow sued the contractor and the Moulding Co. and the Assurance Co. under Sec. 25 of the Act of 1914; the Thomas Moulding Co. of Chicago was served but dropped out of the case. The assurance company excepted that under Section 23 of the Act of 1914 the obligation of the assurance company is “that it will promptly pay to the person entitled to compensation all installments of the compensation that may be awarded or agreed upon, and that this obligation shall not be affected by any default of the insured”, and the argument is advanced that it is only where and after compensation may have been awarded or agreed upon that the policy of insurance matures into a contract for the benefit of the employee, and when his right of action accrues against the assurance company.

I am of the opinion that the liability of the assurance company is fixed at the time of the signing of the policy of insurance. If, however, an award or an agreement was a condition precedent to the right of action against the assurance company then the suit against it was not without cause or right of action, but was only premature, Chalaron vs. McFarland, 9 La. 230, and prematurity was not pleaded and cannot be supplied. But admitting that the statute does require a previous award, the evidence is that the Moulding Company resides in Chicago and that it cannot be sued in this state. Article C. C. 3066 provides that no suit shall be instituted against any surety on an appeal bond until the necessary steps have been taken to enforce payment against the principal.”

Yet our Supreme Court has decided that, notwithstanding this article, a creditor may proceed at once against the surety before any suit shall have'been instituted against the principal whenever it shall appear that proceedings against the princpial are not possible, or unavailing, or useless, or when the principal has no property or is absent. Gale vs. Doll, 28 La. Ann. 718; Pinard vs. George, 30 A. 386; State vs. Jacob & Gunter, 30 La. Ann. 535; Rieks vs. Gantt, 35 La. Ann. 923; Aaren vs. McDonald, 32 La. Ann. 989; Bourgeat vs. Adams, 11 La. Ann. 78; Thompson vs. American Surety, 144 La. 1106, 81 So. 731.

In Alley vs. Hawthorne, 1 La. Ann. 122, the court said on p. 126:

“We think that if the creditor cannot take out his execution on the judgment by reason of a change in the condition of the debtor’s estate which prevents its being reached by that process the law requires from him no act in order to secure his immediate recourse against the surety on an appeal bond, and that we can require none.”

A fortiori is this the case when the liability statute provides under Section 17, S. 4, that “the judge shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided. The judge shall decide the merits of the controversy as equitably, summarily, and simply as may be”.

For these reasons I respectfully dissent.

(Signed) CHAS. F. CLAIBORNE,

Judge.


text:
    No. 10,701
    Orleans
    McNAMEE v. CHECKER CAB COMPANY, INC., AND WHITE
    (January 30, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Automobiles—Par. 9.
    Where there is no physical injury perceptible to the doctor, called in immediately after the accident or at any future time, but plaintiff worried greatly about possibility of permanent injury and consulted a physician ten times at his own expense, he will be allowed medical bill and two hundred dollars, as the doctor says he may have suffered some pain for - a while.
    Appeal from Civil District Court, Division “A”. Hon. H. C. Cage, Judge.
    Action by John L. McNamee against Checker Cab Company, Inc., and Mr. and Mrs. F. O. White.
    There was judgment for plaintiff against Checker Cab Co., Inc., and both plaintiff and Checker Cab Co. appealed.
    Judgment amended and affirmed.
    Hahans & Coleman, of New Orleans, attorneys for plaintiff, appellant.
    P. L. Fourchy, of New Orleans, attorney for Checker Cab Co., Inc., defendant, appellant.
    L. P. Beard, of New Orleans, attorney for Mr. and Mrs. F. O. White, defendant, appellee.
   JONES, J.

This is a suit for damages for personal injuries, doctor’s bill and damaged clothing in the sum of two thousand, one hundred fifty-five ($2,155.00) Dollars alleged to have been caused by a collision between the automobile of Mrs. White and a taxicab of the Checker Cab Company, in which the plaintiff herein with his wife and child were riding at the time of the collision.

The Checker Cab Company is charged with negligence for violating traffic ordinance in failing to stop and give right of way to Mrs. White, who was approaching on the right and Mrs. White is charged with negligence in violating traffic ordinance by driving her car recklessly at a speed in excess of thirty miles per hour and not looking where she was going.

The Checker Cab Company filed answer admitting negligence of Mrs. White, but averring due care on its part and denying the damages claimed. Mrs. White filed a general denial.

There was judgment dismissing suit as to Mrs. White and against Checker Cab Company for thirty-five ($35.00) dollars doctor’s bill and four hundred ($400.00) dollars damages “for shock and either real or imagined pain”. From this judgment both plaintiff and Checker Cab Company have appealed.

The evidence shows as follows:

Peters Avenue, which has a neutral ground with roadways on either side of a parkway, containing many palms and trees, was then paved on both sides of the neutral ground, but the paving on Franklin street commenced only on the upper side of Peters avenue.

The cab, which had been going towards the woods on Peters Avenue, upon reaching Franklin street turned to the left to go up Franklin street; and while it was on the upper side of said Peters Avenue the collision occurred. There was a large palm in the center of the neutral ground on the lake side of Franklin street which obstructed the view and made it well nigh impossible for the driver of the cab making a left turn to Franklin street to see the Cadillac car approaching on the upper side of Peters Avenue for a distance of forty or fifty feet from the intersection and necessarily the view of the driver of any car approaching from lake on upper side of Peters Avenue would be similarly obstructed.

Henry Clement, a colored employee of the grocery on the down-town river corner of Peters Avenue and Franklin street, who came out of the store just as the taxi was passing, but paid no special attention to it until he heard the impact, swears right-hand side of Cadillac struck rear of taxi just about the center of the upper roadway; that he did not hear the taxi blow any horn, but did hear the taxi driver say immediately after accident, “Mrs. White appeared t¡o> be tying her shoe”; he noticed she was wearing slippers that couldn’t be tied; taxi was going about ten or twelve miles per hour and Cadillac about fifteen.

Mrs. White, who had been driving cars for eight years without accident, says she lived near there, had just left home and was driving about fifteen miles an hour close by the neutral ground, when the taxicab, without blowing a horn, came out frdm behind the large bushy palm right in front of her; that she could not stop and could not have gone behind the cab without running up on the neutral ground into the palm; that plaintiff, who got out of the cab and tried to get witnesses, showed no signs whatever of injury and his wife remained in the cab; that her car was stopped by the cab and then ran down the slope to the iron post called a “nigger baby” on the uptown river corner of Peters Avenue and Franklin street, but the cab was turned around and thrown up against a tree; her engine would run, but steering gear wouldn’t work.

Dr. Hoefeld, who called on plaintiff twice at his home (once at request of Cab Company by whom he was regularly retained) and saw him several times later at his office, testifies that plaintiff had no bruises, lacerations, sprains or outward signs of injury; that it “appeared to him more of a psychic condition”, and he talked to plaintiff, but gave him little or no medicine; that he “would think he did suffer in the beginning from falling forward”, but there was no swelling and no sign of sprain; that the patient was in bed when he saw him at home, but he did not prescribe rest, as there were no objective signs of pain;. his bill of thirty-five ($35.00) dollars was for services rendered to plaintiff personally, as Cab Company paid for his visits fO' the house.

Becker, cab driver, says he blew horn twice as he turned into Franklin street at Peters Avenue, shifted his gear into second speed, noticed a Cadillac about three-fourths of block away coming toward him, knew he had plenty time and continued to cross at six miles per hour, looked up Franklin street, found it clear, then saw the Cadillac coming at a very fast rate about fifty feet away, blew horn twice more and hollered, but couldn’t attract attention of Cadillac driver who struck his right wheel, when only four feet of his cab was still on Peters Avenue, and knocked it around twenty-five or thirty-five feet against a tree, but Cadillac didn’t stop until it hit a nigger baby on uptown river corner of Peters Avenue and Franklin street, “knocking all the front end of the car”. Lady, who was coming at rate of twenty-five miles per hour, when fifty feet away was looking down in front of machine and made no attempt to stop, though she had plenty of room between cab and neutral ground to pass, at least twelve feet. Cadillac was coming about two feet from neutral ground when first seen about three-fourths of a block away, but when fifty feet away, front end of Cadillac was about six feet from neutral ground curbing and rear end about five feet; car was going sideways; the front end of his cab came into the upper roadway of Peters Avenue about the time Cadillac swerved from neutral ground to right; gas tank of cab was broken and extra tire on back was bent when cab struck the tree. He rang up for another

Clingston, superintendent of Cab Company, a few minutes after accident found cab turned around in Franklin street, front being -about twelve feet in Franklin street when Cadillac was being pushed away from nigger baby on to neutral ground.

Mrs. McNamee, wife of plaintiff, who was seated with her back to the driver and, therefore, did not see the collision, says cab going at a moderate speed, ten or eleven miles per hour, was almost in Franklin street, when plaintiff shouted: “Look out”; cab was struck in rear, gasoline tank demolished by tree, her dress was torn and she was carried to her mother’s by passing car, but not by any Checker cab.

Plaintiff, manager of billiard hall in St. Charles Hotel, testified that driver was turning into Peters Avenue about five or six miles per hour, when he happened to look out and see lady driving about thirty or forty miles per hour about three feet from uptown sidewalk of Peters Avenue, and he hollered, “look out”. Lady had thirty-five feet to pass, if she had been watching; his side and arm were struck and he still suffers with nerve in lower part of hip; X-ray picture of back shows no injury; stayed in bed six days and then went to- Biloxi for twelve days; rubbed back with liniment; his suit of clothes, which cost thirty-five ($35.00) dollars, was torn in back and seat of trousers and he gave it to Salvation Army; cab was just about two feet from neutral ground in Peters Avenue, when he saw Cadillac coming about twelve or twenty feet away between thirty and forty miles per hour; didn’t hear driver blow his horn, but it wasn’t necessary as there was no fault on his part; lady looked up when he hollered; “in a second we crashed”; a passing auto took his wife and child to her mother’s; driver slowed up, but did not stop before he crossed Peters Avenue; taxicab was struck on the side; only rear wheels of taxi were still in Peters Avenue about two feet when impact occurred. First he says he could see through rear window of taxi at right angles without leaning forward; later, when told these cabs had small wooden blinds over rear window, he said he was leaning forward, by instinct, “always does when he is in an auto”; there were palms about eight or ten feet high in neutral ground and there may have been one at this corner.

On rebuttal he says Dr. Hoefeld advised him to take a rest and continue 'use of plaster on his back, which he did for a year off and on.

The above digest shows clearly that plaintiff and chauffeur disagree as to location of Cadillac car, the former saying that it was in two feet of upper curb of Peters Avenue when fifteen or twenty feet away and the latter that it was six feet from neutral ground running sideways. They also disagree as to blowing of horn by chauffeur and calling of another cab after accident. Neither of them mentions obstruction of view at that corner by the palm.

As Cadillac had right of way, we agree with lower judge in thinking that the taxi driver was guilty of negligence in crossing the upper Peters Avenue roadway without stopping, particularly as his view was obstructed by the large palm. We also agree with him in thinking that plaintiff was hardly justified in giving away his suit of clothes and that the loss of his wife’s dresses of twenty ($20.00) dollars is not proved, as she says it was mérely torn. There is no proof that these garments could not have been repaired and at least used a while or sold for something.

We think the amount allowed for damages is too high, as the record fails entirely to show any physical injury to plaintiff and merely a “psychic” condition of worry. We think under the circumstances the judgment should be réduced to two hundred and thirty-five ($235.00) dollars.

It is, therefore, ordered, adjudged and decreed that there jbe judgment in favor of plaintiff, John L. McNamee, and against the Checker Cab Company in the sum of two hundred thirty-five ($235.00) dollars with legal interest from judicial demand.

It is further ordered that the judgment dismissing this suit against Mrs. J. O. White be affirmed and that plaintiff pay costs of this appeal.


text:
    No. 10,509
    Orleans
    BROWN v. CITY OF NEW ORLEANS
    (December 12, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Municipalities—Par. 256, 257.
    Before a municipality can be held liable for damages caused by a fall claimed to be occasioned by a defect in the sidewalk, it must be shown that the defect was dangerous. A depression or subsidence of two inches in the pavement is not dangerous. The city must maintain reasonably safe streets and walks, not necessarily perfect.
    Appeal from» Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Mrs. Archer Brown against City of New Orleans.
    There was judgment for defendant and the plaintiff appealed.
    Judgment affirmed.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
    H. B. Curtis, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit for damages, for personal injuries, alleged to have been occasioned by a fall, due to a depression in the pavement covering one of the city sidewalks.

It is conceded that at the point where plaintiff says she fell there was a difference of two inches in the elevation of the walk. This difference is shown to be due to the subsidence of the soil which in this locality is quite common, and cannot be guarded against by engineering skill. However, in this instance, the pavement rested partly on a concrete base, a bridge, and partly on the adjacent soil. This circumstance, it is claimed, accounts for the defect in the pavement.

Admitting that there was a defect and admitting that plaintiff’s fall was due to that fact, an admission which concedes much to plaintiff, for she herself was unable, or unwilling, to say so, the city’s liability is not established.

Actual or constructive knowledge is necessary in order to charge the city with responsibility. Actual knowledge is not claimed, but it is insisted that “negligent ignorance is equivalent to actual knowledge”, Lorenz vs. City, 114 La. 802, 38 South. 566, and that the city had constructive knowledge. But in order to impute knowledge to the city, of a dangerous condition of the sidewalk there must, in fact, have existed a dangerous defect. The two-inch depression was not dangerous and neither actual or constructive knowledge could aggravate the defect. Sidewalks must be reasonably safe, not perfect nor foolproof. We discussed this question at length in Wiltz vs. City, 2 La. App. 444, where numerous citations are given. We can add nothing to what was there said.

The judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 10,124
    Orleans
    MURPHY v. N. O. PUBLIC SERVICE
    (November 29, 1927. Opinion and Decree.)

      (jSyllabus by the Court)

    1. Louisiana Digest — Street and Inter urban Railroads — Par. 27, 32.
    If plaintiff was struck, as she alleges, by the rear door of the street car as it was opened and as she was standing near the car to allow it to pass so she could cross the street, then her own imprudence and want of care in standing too near the car was the cause of the accident and precludes her righr of recovery.
    2. Louisiana Digest — Negligence—Par. 25.
    A plaintiff can recover no damages for an injury to which he has himself contributed.
    Appeal from Civil District Court, Hon. Wm. H. Byrnes, Jr., Judge.
    Action by Miss Nellie Murphy against New Orleans Public Service.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
    Benjamin W. Kernan, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

Plaintiff claims of defendant $23,800 damages.

She avers that on June 25th, 1923, at 8:30 a. m., she was walking along the downtown side of St. Andrew street in the direction of the lake; that when she reached the neutral ground of St. Charles avenue she observed a Tulane Belt car about 150 feet above approaching rapidly and going towards Canal street; that she stopped and waited on the neutral ground for the car to pass; that the car was going at full speed and was crowded, having people hanging on the rear bumper; that the car had nearly passed her when the rear doors were suddenly thrown open without any notice to plaintiff, to permit a passenger to alight, and said doors struck her, throwing her to the ground and causing her to become unconscious; that her right arm was broken, and her thigh and her spine injured, and her head cut in two places; that she remained in the hospital three months and was confined to her home for six months, and she is still suffering from her injuries; that prior to her accident she was keeping boarders at 2139 Baronne street, earning a profit of $150 per month; but that since her accident she has been unable to continue her business and has been compelled to close the same, and is unable to earn any livelihood whatever; that her injuries were caused solely by the gross negligence of defendant’s employees, and that she did not contribute to her accident.

The defendant denied every allegation in plaintiff’s petition and averred that the plaintiff attempted to. cross St. Charles street at the lower side of St. Andrew street at a time when a car of the Tulane Belt line was about to cross St. Andrew street when it was impossible for the motorman to prevent striking the plaintiff; that the plaintiff was herself responsible for her injuries in attempting to cross the tracks under the circumstances then existing.

There was judgment in favor of the defendant rejecting plaintiff’s demand; she has appealed.

In this court neither the plaintiff nor the defendant has favored us with brief or argument, but submitted on the record.

The plaintiff testified that at 8:15 a. m. she was crossing the neutral ground of St. Charles avenue at the intersection of St. Andrew street, walking towards Baronne street; she saw the car coming down a half block away; she stopped on the down town river side of the neutral ground right near the car tracks waiting for the car to pass, so she could cross the neutral ground; she said:

“Q. Tell us briefly how the accident happened, beginning with your standing on the corner waiting for the car to pass?
“A. The car coming down the avenue was coming at a high rate of speed, and I was looking at it coming down, and it comes so furiously that it passed the portion where it should stop, and somebody was getting out. I wasn’t aware of that, and the door flew open suddenly and knocked me down. I didn’t know anything any more.
“Q. Did you see the door fly open at the moment it struck you?”
“A. I saw it fly open, and I was knocked, it struck me, and I know nothing after that.
“Q. You say at that corner you were struck by a car. In what direction was that car going?
“A. Down the avenue, towards Canal street. ,
“Q. Going down St. Charles avenue?
“A. Yes, sir.
“Q. Do you know what part of the car struck you?
“A. Of course, I was hit by the door.
“Q. Was it the front door or the rear door?
“A. Rear door.
“Q. Was the front door or rear door open at the time it struck you?
“A. No, it was closed, and it flew open suddenly and that’s all I know.”

On the other hand seven witnesses testify that it was the front part of the car that struck the plaintiff. But it is immaterial, under the circumstances of this case, what part of car struck her. It has been the jurisprudence of this State since Lesseps v. Pontchartrain R. R. Co., 17 La. 361, (1841), reported in Hennen Digest 1054, that “a party can recover no damages for an injury to which he has himself contributed, Volenti non fit injuria”, unless the defendant by due diligence could have avoided the accident. 5 La. Dig., p. 523. Cambre vs. White Castle Lumber Co., 144 La.; 81 South. 256. Knoker vs. Canal & C. R. Co., 52 La. Ann. 806; 27 South. 279. Nolan vs. Illinois Cent. R. Co., 145 La. 490; 82 South. 590.

The plaintiff had been keeping a boarding house at No. 2139 Baronne street for some ten years, then at Baronne and Jackson, and at the time of the accident lived at the corner of St. Charles and Felicity. She says:

“I have taken that car on the avenue all my life, 30 odd years or more, because I lived there all my life; I took it in the same place, as I have always done, away from danger. I rode in the cars all my life.”

She was, therefore, no stranger to the movements of the cars and knew of the danger of standing too near them.

In the case of Carey vs. N. O. Public Service, 3 La. App. 217, this Court denied relief to plaintiff “for injuries to his left hand, which he claims was struck by the rear door of defendant’s street car while plaintiff was about to board the car on the neutral ground on Canal street, when the door was thrown open before the car had stopped”.

In Whitcomb vs. R. Rd., 47 La. 225; 16 South. 812, the court said:

“The proof disclosing that a small boy had approached a train, just at the moment it was about to come to a halt, and was standing so close to one of the steps of the car that a forward movement of the train brought it in contact with a basket on his arm, pulled him down, and caused his leg to be run over and broken, a case of negligence is not made out against the Railroad Company.”

Where a plaintiff was walking along a railroad platform upon which trunks were being unloaded and a trunk fell upon plaintiff and injured his foot, the court held that he was guilty of contributory negligence. Duvernet vs. Rrd., 49 La. An. 484, 21 South. 644; Rombach vs. Crescent City, 50 La. Ann. 473, 23 South. 604; Kird vs. New Orleans & N. W. R. Co., 105 La. 226, 29 South. 729; Lynch vs. Knoop, 118 La. 611, 43 South. 252; Sanders vs. Texas & P. Ry. Co., 118 La. 174; 42 South. 764; 118 La. 180.

But the overwhelming testimony is that the plaintiff was struck by the front part of the car and not by the back door.

W. 0’’Daniel, president of the United States Flour Mills Company, was driving up St. Charles avenue in an automobile; Aubrey L. Jackson, employed by Gus Mayer Company, and Henry B. Scholfield, in the flour business, were standing on the front platform; Charles J. McCabe, a member of the bar; R. J. Crawley, of the Orleans Ice Company; L. J. Smith, employee of defendant, were standing upon the rear platform; and W. S. Lawrence, auditor for Mayer Israel, was seated upon the first cross seat upon the river side of the car; all seven swear that the plaintiff was struck by the front part of the car and not by the rear part.

The first three witnesses all swear, besides, that they saw the accident; that the plaintiff walked in front of the car; that the motorman of the car clamped his gong vigorously and put on his brakes, and stopped his car within fifteen feet of the St. Andrew street crossing, and after the accident the (plaintiff was lying upon the ground on the side of the car nearer the rear end than the front. If she had been thrown down by the rear door of the car, it is evident that she would have been found lying somewhere behind the car.

The other witnesses standing upon the rear platform swear that the accident did not occur on the rear of the car, nor by the opening of the door.

The evidence fails to prove any negligence on the part of the defendant’s employees, and proves conclusively that the plaintiff brought her accident upon herself by her own imprudence and want of care.

Deckman vs. Morgan’s La. & Tex. R. R. & S. S. Co., 40 La. Ann. 787, 5 South. 76.

Hemmingway vs. N. O. C. & L. R. Co., 50 La. Ann. 1087, 23 South. 952.

Brown vs. T. & P. Ry., 42 La. Ann. 350, 7 South. 682.

White vs. V., S. & P. Ry. Co., 42 La. Ann. 990; 8 South. 475.

Herlich vs. Louisville, N. O. & Tex. Ry. Co., 44 La. Ann. 280, 10 South. 628.

Blackwell vs. St. Louis, I. M. & S. R. R. Co., 47 La. Ann. 268, 16 South. 818.

Nolan vs. Illinois Cent. R. Co., 145 La. 490, 82 South. 590.

Michael McLaughlin vs. New Orleans & Carrollton R. R. Co., 48 La. Ann. 23, 18 South. 703.

Hoelzel vs. Crescent City R. Co., 49 La. 1302, 22 South. 330.

Dieck vs. New Orleans City & Lake R. Co., 51 La. Ann. 262, 25 South. 71.

Webster vs. New Orleans City & Lake R. Co., 51 La. Ann. 299, 25 South. 77.

O’Rourke vs. New Orleans City & Lake R. Co., 51 La. Ann. 755, 25 South. 323.

Kramer vs. New Orleans City & Lake R. Co., 51 La. Ann. 1689, 26 South. 411.

Knoker vs. Canal & C. R. Co., 52 La. 806, 27 South. 279.

Lampkin vs. McCormick, 105 La. 418 (427), 29 South. 952.

Nassauer vs. New Orleans & C. R. Light and Power Co., 116 La. 475, 40 South. 842.

The judgment was in favor of the defendant and it is affirmed.