text:
    No. 2463
    Second Circuit
    THOMAS HUTCHINSON v. LOUISIANA CENTRAL LUMBER COMPANY AND SOUTHERN CASUALTY COMPANY
    (December 10, 1925, Opinion and Decree)
    (February 8, 1926, Rehearing Refused)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Master and Servant —Par. 159.
    Where the injured employee suing under section 8, Sebsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 43 of 1922, proves total disability at the time of the trial, the court will not venture a prediction as to when his condition will change to one of only partial disability or freedom from all disability but will leave this to be determined by the event, and give judgment as for total disability not exceeding four hundred weeks.
    (The recent amendment of Section 8 of Act No. 20 of 1914 is Act 216 of 1924. Editor’s note.)
    Appeal from Eighth Judicial District of Louisiana, Parish of Caldwell, Hon. F. E. Jones, Judge.
    This is a suit brought by an injured employee for compensation under ' Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914, against the employer and insurer.
    An exception no cause of action was filed by the insurer which was sustained. There was judgment for plaintiff and the defendant employer appealed. Plaintiff asked for an increase in judgment.
    Judgment amended and increased.
    Long and Crow, of Shreveport, and G. T. McSween, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist and Richie, of Alexandria, attorneys for defendant, appellant.
   CARVER, J.

Alleging total disability, plaintiff sued Louisiana Central Lumber Company, his employer, and Southern Casualty Company, its insurer, for compensation under the workmen’s compensation law (Act No. 20 of 1914 as amended by Act No. 43 of 1922) for injuries received in an .accident occurring January 28, 1924, arising out of and incidental to his employment.

The accident was, being thrown from a horse against a tree.

From a judgment sustaining an exception of no cause of action, filed by the defendant Southern Casualty Company, plaintiff does not appeal; so that defendant is eliminated.

The Louisiana Central Lumber Company admits that plaintiff suffered an injury on the date mentioned, but claims that he had completely recovered from its effects by March 12, 1925, up to which time it had paid him compensation at the rate of $11.88 a week, which was 60% of $19.80, his weekly wages at the time of the accident, and that it owes him nothing further.

The District Judge awarded compensation of $11.88 a week for total disability from the time of the accident till May 12, 1925, and $5.94 a week for partial disability from that time during such disability, not exceeding 300 weeks in all.

The judgment does not allow credit for the $689.04 paid by defendant to plaintiff.

Defendant appealed and plaintiff moves to amend the judgment by allowing $11.88 a week during disability, not exceeding 400 weeks. He does not contest defendant’s right to the credit of $689.04, the failure to allow which was evidently due to inadvertence in drawing the judgment.

Defendants counsel contends in this court that plaintiff’s condition is not one even of partial disability to do work of a reasonable character.

Plaintiff testifies that he is 65 years old; that he has done no work since the accident; that he does not rest “in a minute’s peace at any time”; that his hip hurts; that he has no literary education; that the kind of work he has been used to is hard, physical labor, such as hauling logs, working on railroad tracks and things like that; that he cannot get around and cannot ride a horse; and that “when I undertake to do anything I cannot do it, that’s all; when I go to sit down and get up I have to put my hands on something; I cannot sit in a chair like a man ought to”.

Doctor Adair, radiologist, describing the radiograph taken, says:

“Anterior, posterior radiograph of the pelvis and hip shows an old fracture of the right femur. This fracture is oblique. The lower fracture is displaced upward and inward, causing a shortening of the limb of about one and a half inches, and deformity of. the femur. There is good union of the fracture.”

He further testified as to the shortened leg:

“Q. Could that be corrected with a shoe, so that it would not interfere in walking to a great extent?
“A. I should think that he would get where he would not have much of a limp.”

He further said by “old fracture” he only meant one of the last two or three days.

Doctor Sanderson says:

"I find the man on general inspection looks fairly healthy. He gave a history of having been working for the Louisiana Central Lumber Company, Camp 25, hauling logs. Horse bogged and he was thrown against a tree breaking his thigh as described. He looked like a fairly healthy man in general; an examination did not reveal anything except the right thigh, which I examined carefully. However,. in walking, he has an apparent shortening of the right leg. An examination of the hip bone showed not a marked displacement. There is an apparent angulation. I did not measure the man’s legs because I did not have his shoes off, but asked Dr. Adair to make the examination, and I usually go by the X-ray in shortening cases. Anyway I did not examine the shortness of the leg, except that it was apparent in walking. He has pain, has a marked point of tenderness nearly between the ischium and the line shown as the hip bone, which he complains of hurting him all the time, and especially when he sits down. Those were about the only findings.”
“Q. These injuries that you note, will continue as they are, and be permanent, or not?
“A. The -injuries that I suspect, and having seen the x-ray and having the report on it, of course we know they will remain, and I might add that I found that both the thigh and the leg atrophied, thigh and leg muscles flabby, and the leg smaller than the other leg.”

And he says further:

“Q. Doctor, I will ask you if you found an atrophied condition of both the thigh and leg?
“A. Yes.
“Q. What did that indicate?
“A. Would indicate disuse as compared to the other leg or some nerve disturbance, or both.
“Q. Was that what you call a pretty badly broken up limb and thigh?
“A. Taking into consideration the position and physical findings and the x-ray report I would not consider so unusual fracture, but the results make it a severe one.”

Doctor Simmonds says:

“Q. With reference to the injury received by him about January 28, 1924, will you please explain what that injury was, and what his present condition is with reference to that injury?
“A. You want to know the condition he was in at that time?
“Q. Yes.
“A. Well, he was a man about sixty years old, very much emaciated when he entered the hospital, and suffering with a fracture of the right femur, fracture extending through the trochanters, the greater trochanter standing pulled out at an angle of about forty-five degrees, and the inner trochanter pulled in against the paraneum, the spicula of the distal end of the bone extending up between the two fragments. The man was suffering from an arterioschlerosis, three or four years’ standing, I think. He was in a most desperate condition at that time. After treating him and keeping him confined in bed part of the time in a half sitting posture, for a period of five weeks, he was put in a rolling chair and finally allowed to be up on crutches, in which condition he was sent home, with the request that he return to see me within two or three weeks. We saw him on several occasions after this, and finally, on seeing him on February 2, 1925, we were astounded at his recovery, his general condition having improved so materially, his diarrhea entirely gone, and the function of his knee and hip very much improved. The union in this case was perfect, except for a slight shortening of the leg from three-quarters to an inch. He will, of course, have a slight permanent disability in this particular leg, on account of the shortening, but this will be very much compensated by the pelvis, the rotation of the pelvis and I dare say within a short while he will not even think of using a stick as he was using at the time he last appeared to see us, on February 2, 1925.
“Q. Doctor, with reference to the shortening of this leg, would a shoe with a little added sole eliminate the inconvenience of the slight shortening?
“A. Very much indeed. If he were a young man it would not be noticeable in the course of time.
“Q. Do you consider this man disabled in any extent on account of this accidental injury other than the slight shortening of his right leg?
“A. No, for the reason that he has the use of all of his muscles; there is no injury to the nerves; the leg is building up in size, and he has good function of the knee, and almost complete function of the hip joint.
“Q. In making your various examinations of this patient and in treating him, did you make use of the x-ray?
“A. I did. He was x-rayed more than once at the Baptist hospital of this city, and also in my office, by my partner, Dr. King Rand.
“Q. From your treatment of this patient, and your various examinations of him since his injury up until February 2, 1925, is it your opinion that this man is disabled from doing reasonable labor as a result of that injury?
“A. No, there is no reason why he should not be capable of doing any reasonable manual labor.
“Q. This man was a teamster. Do you believe at the present time or at the time you last examined him, that he is physically able to perform the services of a teamster now, as he was before his injury?
“A. I think so.
“Q. Is his general physical condition better or worse than it was prior to the injury?
“A. He is practically a well man now, whereas, when he entered the hospital he was, I considered, a very ill man, regardless of whether he had been injured or not. He had chronic diarrhea of possibly three or four years’ standing, which we treated him for at the time.
“Q. In addition to this, did he have some kind of arterial trouble?
“A. Yes, arterio-schlerosis, or hardening of the blood vessels.
“Q. That is improved?
“A. Very much indeed, by the rest.
“Q. Did you have him under treatment all the time from the time he was injured, until February 2, 1925?
“A. All of the time until he left the hospital. I don’t know the exact date he left the hospital, and I observed him on several occasions since that time, as he would return to the office.
“Q. Doctor, was the results of the repair of that limb what you would consider good or bad?
“A. Taking into consideration the man’s age and physical condition, the unusual fracture received, the results are better than I could have possibly expected at first.
“Q. It has been testified to by one of the physicians testifying, for plaintiff, that this man’s thigh and leg were in an atrophied condition; possibly you can explain why that condition existed.
“A. Certainly. In the first place, the man was a laboring man, had been accustomed to a very active life, and when he received this injury it was a very severe one, it/ is natural that the muscular action would cease, and especially as it was necessary to place this man’s limb at complete rest putting the muscles all in a tense and stretched condition, the muscles themselves became impoverished from lack of use, and as a result, the leg became very much atrophied until the patient was able to use the leg. After the had become more active, the leg again began to develop, and within a reasonable time the difference in size of the two legs will not be noticeable.
“Q. Does this atrophy and flatiby condition of the muscles occur in all fractures of limb?
“A. All fractures where the limbs are put at rest.
“Q. Where those limbs are used after the fracture has been repaired, do they usually acquire their normal strength and size?
“A. Yes, from exercise.
“Q. In your opinion is there any reason why this leg should not acquire its usual size and strength by regular use, in a reasonable time.
“A. There is no reason why it should not.
“Q. What would you call a reasonable time?
“A. It depends upon how much use the man makes of the leg; how much effort he makes at exercising the leg properly.
“Q. Is not the duration of the atrophic condition due entirely to the activities of the particular patient?
“A. Yes, sir.
“Q. As I understand it, a patient with a fractured limb, if he declines to use the limb actively, can occasion himself disability through atrophy and weakness of that limb, for a considerable length of time?,
“A. He can.
“Q. As I understand it, on the contrary, if he would put himself to some extra effort to use this limb, such atrophic condition would remedy itself much more rapidly?
“A. It would.”

Defendant introduced no testimony showing what, if any activities, plaintiff had actually engaged in since the accident. The District Judge having allowed compensation for full disability up to the time of the trial, must have regarded plaintiff as totally disabled at that time to do work of any reasonable character. On the testimony above quoted, we cannot say he manifestly erred.

Defendant’s counsel called attention to the fact that neither Doctor Adair nor Doctor Sanderson, who were plaintiff’s witnesses, was asked whether there was disability and asks us to infer that if he had asked their opinion would have been against him.

Defendant was represented by counsel at the examination and could have asked this question as well as plaintiff. We think no inference should be drawn either way.

Doctor Simmonds says nothing about plaintiff’s pain or claim of pain. In two of his answers he seems to express the unqualified opinion that plaintiff is and was when he saw him last on February 2, 1925, able to do work as a teamster or any other work of a reasonable character; but much of his testimony relates not altogether to his condition as it was but in part at least to what he expected it to be. He saw him last on February 2, 1925, and says at that time the functions of his knee and right hip were very much improved and that he had good function of the knee and almost complete function of the hip. We infer from this it was not quite well.

He further says there will be a slight permanent disability of the leg on account of shortening. We are not sure he meant that plaintiff, when he saw him last, was not under some disability, but, if so, we cannot attach to his opinion a weight sufficient to overcome the opinion of the lower court supported by plaintiff’s statement that he cannot work at all and the undisputed fact that plaintiff’s leg is shortened with a displacement of some of the bones.

The District Judge has not furnished us with his reasons for awarding compensation from the date of the trial on the basis of 50% reduction in earning capacity. Defendant claims that because Ouachita & Northwestern Railroad Company offered plaintiff a job as section foreman at $3.50 a day, which was about what he was earning, which offer plaintiff refused unless they paid him $500.00 cash, this shows that his earning capacity is not diminished, that he is not disabled, and that he is keeping from work because he prefers to draw compensation instead of wages.

The offer of the foreman job was made in June, 1924, five months or less after the accident, during the time that he was under treatment or at least under observation by Doctor Simmonds, and plaintiff says he could not do the work then.

Manes says that a section foreman on a small railroad as a rule does not do anything except oversee but sometimes lifts rails and ties and helps pump the handcar.

And he says, further:

“Q. Suppose in addition to that broken leg he had a projection of the thigh bone sticking into his hip or buttock so that he was unable to sit down with ease at any time. Do you think that would interfere with his work?
“A. Well, it probably would.”

Considering the nature of the injury and the condition in which it left plaintiff’s leg, we have no sufficient reason to doubt the truth of plaintiff’s testimony that at the time he was not able to do the work of a foreman, at least the lifting and pumping. In fact no effort was made to prove that at that time he was able to do manual labor, the impression we get from the testimony being rather that he was offered a position not requiring such labor. The fact that he was offered this job is not, to our mind, proof that he was able to do work of any reasonable character such as he had been accustomed to. Nor does it, in our opinion, establish plaintiff’s earning capacity. We are satisfied that the job was not offered him on his merits as a workman in his then condition. If offered for philanthrophic motives or because defendant preferred to pay wages rather than compensation, we do not think we should accept the bare offer as proof of earning capacity.

Furthermore, defendant continued to pay compensation for full disability up to March 12, 1925, about nine months after the offer was made.

Counsel for defendant argue as though he refused the job unless it was secured to him for life and unless, further, he was paid $500.00 in cash.

This, though, is not in accordance with the proof. The job of foreman was offered to him in June, 1924, at which time there was no discussion of any such payment, and plaintiff says he refused the job then because he could not do the work. The demand for $500.00 was made only about April, 1925, at which time no job was offered him but, on the contrary, he was informed that they had no such job. Plaintiff’s testimony on that point, which is not disputed, is as follows:

“Q. Do you remember the conversation you had with C. B. White and J. B. Bolton and in that conversation they offered to pay you five hundred dollars and you said if they would pay you five hundred dollars and a life time job you would accept it?
“A. They kept after me to come to Alexandria for an examination and I went down there and Dr. Simmonds examined me and put on the report card ‘partial disability’ and Mr. Bolton says T will give you two hundred dollars and you can go back home happy’, and I says I couldn’t accept that. Finally he asked me what I would do and I told him I would accept five hundred dollars with a life time job of something I could do, and then later on the latter part of April they sent for me to come into Clark’s and I went in and Mr. Bolton was there and he proceeded to offer me three hundred dollars to settle and I told him I would agree to it if they would give me a job that I could do and Mr. White spoke up and said Mr. Slagle didn’t have that kind of a job. Mr. Bolton figured a while and said T will give you $400.00 with five per cent • discount. I asked him what the discount was for and he said if you go to the bank for the money you would have to pay five per cent discount.
“Q. You refused to take the job without the money?
“A. I refused to take the job without the money. I refused to take it because I couldn’t do anything except section foreman job and that hasn’t been offered to me since last June.”

The District Judge evidently thought that total disability continued down to the time of the trial on May 12, 1925. We do not see any basis in the proof for placing it, thereafter, on a basis of 50% of earning capacity. The plaintiff swore he could not do anything at all, by which we understand him to mean, anything requiring manual labor. He knows whether he can or not. It may be, and counsel for defendant evidently think that he is merely pretending, but we do not find in the record sufficient reason for so holding.

Dr. Simmonds’ testimony ignores plaintiff’s pain or claim of pain and, as said above, it is in part at least predicated on what he expected to take place and not wholly on plaintiff’s condition when he last saw him.

Dr. Sanderson says the atrophy may be due to disuse or to nerve injury or both. He was not asked which he thought actually the case.

Dr. Simmonds says it was disuse and that there was no injury to nerves or muscle, r He does not say how he knows there was | no injury to nerves and we are not informed why he was not told of plaintiff’s claim that he suffered pain. No doubt the atrophy was due at least in part to disuse, but if plaintiff does suffer pain this may show that there was some injury to the nerves, and even if the disuse was due to the pain, we cannot say that plaintiff should have worked in pain.

The fact that he was willing to take a job not involving manual labor, such as foreman’s job without lifting and pumping does not, we think, establish earning capacity, at least without proof that some such job was reasonably attainable. Defendant had no such job and we are sure that considering plaintiff’s age and condition it is a mere chance whether he can obtain such a job or not.

If Dr. Simmonds was informed of plaintiff’s claim of pain and disbelieved it, giving his answer because of this disbelief, his testimony does not disclose the reasons for such disbelief and we find nothing in the record which would justify us in entertaining a similar disbelief.

We have carefully read the plaintiff’s testimony over and over and it strikes us as being apparently frank and candid. We see no evidence of evasion or of a disposition to conceal the facts. The law makes interested parties competent witnesses and while their statements are to be weighed and considered in the light of this interest, yet they cannot be disregarded merely because of the interest. Perhaps in stating that plaintiff suffered pain, Doctor Sanderson did not answer with the usual reserve of a medical expert. Such experts generally testify merely that the patient says he has pain. If this was a mere inadvertence in the part of the witness, at least it shows that °he did not himself observe any reason to question the truth of the plaintiff’s claim.

We have decided in several cases that where the condition of the injured workman at the time of the trial was one of total disability which was likely to last a long time, we would not venture on prediction as to when his condition would change to one of only partial disability or freedom from all disability but would leave this to be determined by the event.

See:

Chandler vs. Oil Fields Gas Co., 2 La. App. 778.

O’Donnell vs. Fortuna Oil Co., 2 La. App. 462.

King vs. McClanahan, 3 La. App. 117.

We are satisfied that this view of the law is correct. It cannot injure the employer because if restoration to ability to work does take place the employer can obtain modification after a year by availing himself of the right of review granted by the statute. If, though, we should indulge in prophecy and determine that the plaintiff was going to recover, wholly or partially, within a certain time in the future, and the prophecy should not come true, the effect would be to cut off plaintiff’s right to a 100 weeks’ compensation even though the disability should continue beyond three hundred weeks.

For these reasons, it is ordered, adjudged and decreed that the judgment of the lower court be amended by decreeing plaintiff entitled to compensation at the rate of $11.88 a week during disability, not exceeding 400 weeks, beginning February 5, 1924, together with 5 per cent per annum interest on each installment from the time of its maturity; subject, however, to a credit of $689.04 to be imputed to the first installments due.

It is further ordered that as thus amended the judgment of the lower court be affirmed.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2312
    Second Circuit
    NATHAN GAMBERG v. STEINBERG & COMPANY
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 625.
    The judgment of a trial court on a question of fact, not clearly erroneous, should be affirmed. May Hosiery Mills vs. Handelman & Dreyfus, 1 La. App. 387.
    2. Louisiana Digest—Evidence—Par. 53.
    The burden of proof is on plaintiff. Code of Practice, 312.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    Judgment affirmed.
    Hawthorn and Stafford, of Alexandria, attorneys for plaintiff, appellant.
    George J. Ginsberg, of Alexandria, attorney for defendants, appellees.
    STATEMENT OF THE CASE
    On November 18, 1920, plaintiff filed this suit to recover $72.00 as the price of 3000 pounds of automobile tires at 1% cents a pound, 2000 pounds of inner tubes at 5 cents a pound and 600 pounds of manilla rope at 4% cents a pound sold by plaintiff to defendants.
    On September 22, 1921, on motidn of plaintiff’s counsel the suit was placed in the “dead” docket.
    On September 18, 1923, by agreement of counsel for both plaintiff and defendants the case was revived and placed on the “live” docket.
    On October 23, 1923, plaintiff filed a supplemental petition in which he claimed the further sum of $150.00 as the price of five tons of burlap at 1 y2 cents a pound alleged to have been sold by him to defendants and delivery of which; he alleges, defendants refused to accept, and which, he also alleges, was subsequently destroyed by fire while in his possession without any fault on his part.
   REYNOLDS, J.

Defendants denied liability, and especially denied the alleged tender to and refusal by them to accept the five tons of burlap.

On these issues the case was tried and there was judgment in favor of the defendants and plaintiff has appealed.

OPINION

Plaintiff’s demand for $172.00 as the price of the articles mentioned in his original petition as having been sold and delivered by him to defendants on July 30, 1920, cannot be allowed for the reason that in his evidence he does not claim that the articles were delivered to or received by defendant but that they were destroyed by fire without his fault while still in his possession.

Having sued for the price of goods alleged to have been sold and delivered he will not be permitted to shift his ground on trial and prove that they were destroyed by fire without his fault before delivery and recover their value on the theory that although still in his possession they were so at defendants’ risk.

The demand for $150.00 as the price of five tons of burlap at 1 Yz cents a pound contained in plaintiff’s supplemental petition' alleged to have been tendered to defendants and refused by them and also to have been destroyed by fire without plaintiff’s fault which in his possession, must be determined from the evidence in the case.

Plaintiff swears positively that he sold to defendants, through their agent, Mr. Cohen, five tons of burlap at 1% cents a pound on July 30, 1920, and that delivery of the goods was tendered to Mr. Cohen for defendants and that he refused to accept the same.

Mr. Cohen swears equally positively to the contrary.

The testimony of these two Witnesses offsets that of each other, and the plaintiff, who has the burden of proof, had failed to establish his demand by a preponderance of the evidence.

If plaintiff had tendered to defendant five tons of burlap on July 30, 1920, we cannot understand why he should have sued in the following October for the value of the other items he claims to have sold to defendants on the same date and not have included this claim for the value of five tons of burlap.

Defendant filed in evidence (page 9) price list of Steinberg & Company, which was admitted by plaintiff and filed as defendants’ exhibit A.

We have carefully examined this document and do not find thereon any mention of burlap or any price of burlap fixed in same.

Plaintiff, in his testimony, claims to have sent the articles sold to defendants to them in a wagon. If any burlap had been included, it should have been easy for the plaintiff to show this by the driver of the wagon. This, however, he failed to do, and it being a matter peculiarly within the knowledge of his employees the plaintiff should have made this proof or given some .satisfactory reason for his failure to do so.

All of the items whose price plaintiff is suing for are alleged to have been sold on July 30, 1920. We find in the evidence a check signed by defendants drawn in favor of the plaintiff and endorsed and cashed by him dated August 2, 1920, for $191.84. Defendants claim that this check was given in full settlement of all indebtedness of theirs to plaintiff to that date. Plaintiff having accepted the check without protest, the payment corroborates defendants’ claim that it was in full settlement of their indebtedness to plaintiff.

The District Judge rendered judgment in favor of the defendants. We think the evidence in the case, taken as a whole, fully warrants the judgment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 2278
    Second Circuit
    HERMAN J. DUNCAN v. MRS. JOHN C. BLACKMAN
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Actions—Par. 15.
    A personal action lies against him who has bound himself towards another personally and independently of the property which he possesses.
    Code of Practice, Article 26.
    2. Louisiana Digest—Quasi-Contracts—Par. 17, 19, 20; Offences and Quasi-Offences —Par. 11.
    A personal action on a quantum meruit must be based on one of four causes: contract or quasi-contract, offence or quasi-offence.
    Code of Practice, Article 28.
    3. Louisiana Digest—Quasi-Contracts—Par. 21; Obligations—Par. 170.
    In order for plaintiff to recover in this, a personal action on a quantum meruit, he must prove an- employment and the rendition of services by him in accordance with the terms of the employment.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rap-ides, Hon. Leven L. Hooe, Judge.
    Judgment affirmed.
    George J. Ginsberg, of Alexandria, attorney for plaintiff, appellant.
    Overton and Hunter, of Alexandria, attorneys for defendant, appellee.
    STATEMENT' OF THE CASE
    Plaintiff seeks to recover from defendant $1636.00 on a quantum meruit for services rendered by him to her in the preparation of plans and specifications for a proposed apartment house that was never built.
    Defendant denied liability on the ground that she had contracted with defendant to prepare plans and specifications for a building to cost not exceeding $25,000.00; that she would not erect a building costing more than that amount, and that she should not be liable to plaintiff for the value of his services unless the building for which he prepared plans and specifications could be constructed for not more than $25,000.00 and was erected.
    On these issues the case was tried and there was judgment in favor of defendant rejecting plaintiff’s demand and he has appealed.
   REYNOLDS, J.

OPINION

In February, 1924, defendant requested plaintiff to advise her relative to an apartment building she contemplated erecting adjoining the “Piggly Wiggly” building owned by her in the town of Alexandria, Louisiana, for which plaintiff had furnished plans and specifications, and asked him about his fees for his services. He informed her that he would be glad to do any preliminary work without compensation and that in the event she decided not to proceed with the building and order plans and specifications prepared for it there would not be any charge for his preliminary services.

Plaintiff himself tesified, pages 2, 7 and 23:

“Q. Proceed?
“A.. And about some time in February, Mrs. Blackman requested me to advise her relative to building an apartment house on the property at the rear of the Piggly Wiggly building. At this conference Mrs. Blackman asked what would be my fee for doing this work, and I informed Mrs. Blackman—
• * * * I informed Mrs. Blackman that I would be glad to do any preliminary work for her that I could, and that in the event that she did not go ahead with the work and order the plans and specifications prepared, that I would make no charge for the preliminary work.
“Q. Was there an understanding between you and Mrs. Blackman from the beginning that in the event that nothing but preliminary drawings were undertaken, there would be no charge?
“A. Yes, sir.
“Q. Now, Mr. Duncan, you have stated, as I understand your testimony, that after you submitted the preliminary plans and sketches, and after you had advised Mrs. Blackman that your estimate was that the building would cost $25,000, and after she had received responses to your advertisements in reference to procuring tenants for her apartments, and after she had consulted with others, and after she had figured the revenue to be derived from the building predicated upon a cost of $25,000, that she then told you to go ahead and prepare the plans and specifications for the building. Now, I want to ask you if she did not say to you, in addition to that, to go ahead and prepare the plans and specifications provided the building would not cost in excess of $25,000?
“A. Mrs. Blackman told me on several occasions that she did not expect to spend over $25,000, but she never told me that she did not expect to pay for the plans and specifications; and if she had done so, they would never have been prepared.”

After this positive understanding between plaintiff and defendant that plaintiff was to prepare plans and specifications, only if the building could be constructed for not more than $25,000—■

“Q. It was prepared, then, after Mrs. Blackman had authorized you to go ahead with the cpmplete plans and specifications upon the theory that the building would not be in excess of $25,000?
“A. Yes, sir.”

Accordingly plaintiff did prepare plans and specifications for a building which he estimated should not cost exceeding $17,000 and which he later estimated should cost not exceeding $25,000.

After due advertisements for bids for the doing of the work the following were received:

S. J. Rockhold____________________________________$42,900.00
E. J. Michiels______________________________________ 58,876.00
A. A. Gremillion__________________________________ 52,049.85
S. W. Tudor__________________________________________ 44,646.45
J. S. Casey__________________________________________ 51,350.00

The lowest of these bids being more than seventy per cent greater than the maximum amount that defendant was willing to invest in the building and that plaintiff had estimated it should cost, at plaintiff’s advice defendant rejected all of the bids as too high and he thereupon suggested to her that he be' permitted to revise the plans and specifications so as to bring the cost of the building within the figure she was willing to invest.

“Q. Did you reject them, or did Mrs. Blackman reject them, or did you both reject tnem? (The bids.)
“A. I advised Mrs. Blackman to reject them but she did the rejecting.

Page 6:

“Q. At this point, Mr. Duncan, did you also make an estimate of the revised plans before asking for bids?
“A. Yes, sir.
“Q. Have you any recollection of what that estimate was ?
“A. To the best of my recollection, we had estimated a reduction of about $6,000.
“Q. On account of the revisions?
“A. Yes, sir, on account of the revisions.”

Bids were invited on the revised plans and specifications. After due advertisements the following were received.

S. W. Tudor______________________________________$39,565.00
A. A. Gremillion___________________ 46,049.00
Gehr ' Construction Company---------- 43,000.00
S. J. Rockhold___________________________ 38,500.00

All of these bids also were rejected as excessive and the proposed building was never constructed.

Plaintiff now asks judgment against defendant on a quantum meruit in the sum of $1636.00.

From the foregoing statement of facts it is apparent that defendant was not to become liable to plaintiff for the value of his services unless a building could be erected in accordance with the plans and specifications prepared by him for not exceeding $25,000; and that it was thoroughly understood between them that defendant was not willing to invest in the building exceeding $25,000.

It therefore follows that there was no contract between plaintiff and defendant under which she could have become indebted to him.

In order for plaintiff to recover judgment against defendant on a quantum meruit it must appear that there was a contract express or implied between them or that his services inured to her benefit; and in the absence of any obligation under a contract or quasi-contract, offence or quasi-offence, whereby defendant became indebted to plaintiff he is not entitled to judgment for the value of the work done or services rendered by him in connection with the plans and specifications.

For these reasons, it is ordered, adjudged and decreed that the judgment of the lower court be affirmed.


text:
    No. 2535
    Second Circuit
    THE J. R. WATKINS CO. v. R. W. PRICE, ET AL.
    (February 8, 1926, Opinion and Decree)

      {Syllabus by the Editor.)

    1. Louisiana Digest—Suretyship—Par. 27, 28.
    “The surety is discharged when by the act of the creditor the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.”
    Appeal from Third Judicial District Court of Louisiana, Parish of Jackson, Hon. S D. Pearce, Judge.
    This is a suit founded upon a contract between principals and sureties. There was judgment against two of the principals, who were defendants, but • in favor of the sureties who were also defendants.
    Plaintiff appealed.
    Judgment affirmed.
    W. H. Hammond, of Jonesboro, attorney for plaintiff, appellant.
    Moss and Peters, of Winnfield, attorneys for defendants, appellees.
    STATEMENT OF THE CASE
    Plaintiff seeks to recover judgment against R. W. Price, P. W. Carr, W. W. O'glesby, W. M. Fuller, J. L. Fuller and T. A. Edwards, individually and in solido, in the sum of $839.63 with 5 per cent per annum interest thereon from March 1, 1920, until paid.
    The suit is founded upon a contract dated December 2, 1918, signed by plaintiff and R. W. Price as principals and by the others as sureties, and terminating March 1, 1920.
    In this contract Price acknowledges himself to be indebted to plaintiff in the sum of $1246.66 and plaintiff allows him the life of the contract in which to pay it, and Price also agrees to buy from plaintiff for resale certain merchandise, consisting principally of proprietary articles, and his co-defendants obligated themselves jointly and severally to pay said indebtedness and for such merchandise in case he failed to do so.
   REYNOLDS, J.

During the life of the contract Price purchased from plaintiff merchandise to the amount of $288.05 and paid plaintiff, in cash $240.90, and in goods delivered to another at its request, $454.19, or a total of $695.09, which left a balance owing under the contract of the amount sued for.

The defendants R. W. Price and P. W. Carr interposed no defence.

The defendants W. W. Oglesby, W. H. Puller, J. L. Puller and T. A. Edwards answered denying liability and alleging that if ever liable as sureties they had been released because' on July 10, 1920, after the expiration of the limit of time fixed by the contract for Price to discharge his obligations thereunder to plaintiff and while he was in default, Price, without their knowledge or consent at the request of plaintiff had delivered to one J. L, McBride, goods, wares and merchandise out of his assets in violation of the contract sued on and that thereby they had been discharged from any further liability as sureties.

There was judgment in favor of the plaintiff and against the defendants R. W. Price and P. W. Carr for the amount sued for and in favor of the defendants W. W. Oglesby, W. M. Puller, J. L. Puller and T. A. Ed4 wards and against the plaintiff rejecting the plaintiff’s demand as against them, and the plaintiff has appealed.

OPINION

On July 10, 1920, more than four months after the contract between plaintiff and R. W. Price had terminated, the defendant Price, at the request of plaintiff, delivered to J. L. McBride, without the knowledge or consent of the sureties, certain merchandise that Price had purchased from plaintiff and plaintiff credited his indebtedness to it with $454.19 therefor.

Paul Watkins, president and general manager of the plaintiff company, testifying as a Witness in its behalf said that the company had intended to notify Price’s sureties of his failure to make settlement with it of his obligations under the contract at the termination thereof but by inadvertence notice was sent to sureties on a different obligation; and that Price’s sureties were not notified of his default until the filing of this suit, which was filed on March 20, 1922, more than two years after the termination of the contract, and nearly two years after merchandise on which plaintiff had a vendor’s privilege and to which privilege the sureties were entitled to be subrogated had been delivered to J. L. McBride at plaintiff’s request and without the knowledge or consent of the sureties.

In New England Mutual Life Ins. Co. vs. Randall, 42 La. Ann. 260, 7 South. 679, the' Supreme Court said:

“The surety is discharged when by the act of the creditor the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.”

This decision had the approval of Edward Bermudez, Lynn B. Watkins, Charles E. Fenner, Samuel D. McEnery and Joseph A. Breaux, five as profound lawyers as ever sat in the Supreme Court of this state.

Our learned brother of the District Court, S. D. Pearce, who tried this case, in his decision quoted liberally from the above cited decision in support of his judgment herein.

We are convinced that his findings of fact and conclusions of law are correct, and it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: CARVER, J.

text:
    No. 2465
    Second Circuit
    CHARLES L. WILSON v. LOUISIANA CENTRAL LUMBER COMPANY
    (December 10, 1925, Opinion and Decree)
    (February 8, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 154, 159.
    Under Section 8, Subsection 3 of Act 20 of 1914 as amended by Act 216 of 1924, the Workmen’s Compensation Law, “the term ‘wages’ as used in Act 20 of 1914 is defined to mean the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury”.
    2. Louisiana Digest—Master and Servant —Par. 160 (I); Appeal—Par. 625.
    The finding of the District Court in a Workmen’s Compensation case brought under Act 20 of 1914 as to a matter of fact being clearly correct is affirmed.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Caldwell, Hon. F. E. Jones, Judge.
    This is a suit under the Workmen’s Compensation Law, Act No. 20 of 1914 as amended by Act 216 of 1924, brought by an injured employee for total disability under Section 8, Subsection 1 (b) of the Act, and the medical expenses under Section 8, Subsection 5 of the Act There was judgment for total disability for twelve weeks only, and partial disability not exceeding 288 additional weeks. Defendant appealed, and plaintiff moved to Amend the judgment by increasing the allowance but did not complain of the disallowance of the claim for medical expenses.
    Judgment amended and reduced.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist and Richie, of Alexandria, attorneys for defendant, appellant.
   CARVER, J.

This is a suit under the Workmen’s Compensation Law, Act 20 of 1914 as amended by Act 216 of 1924.

On January 29, 1925, plaintiff Was struck by a log rolling off of a log wagon and claims $12.87 per week for 400 weeks for total disability and $250.00 for medical expenses.

Defendant admits that plaintiff received the injuries for which it is liable but alleges that they were slight and not sufficient to incapacitate him longer than six weeks.

It further alleges that it furnished all needed medical attention and has been ready to pay compensation for the time plaintiff was disabled but that he has failed to call for or accept the same.

It also claims that compensation should not be fixed on the basis of a daily wage of $3.30, as alleged by plaintiff and adopted by the District Judge, but on the basis of a wage of $2.75 per day, the amount paid to plaintiff at the time he was injured.

The District Judge allowed $12.87 a week for total disability for twelve weeks and $6.43 a week for partial disability during such disability but not exceeding 288 additional weeks.

Defendant appealed and plaintiff moves to amend the judgment by increasing the allowance to $12.87 a week and the period to 400 weeks. Plaintiff does not complain of the disallowance of the claim for medical expenses.

The District Judge filed a written opinion as follows:

“In this case the plaintiff seeks to recover damages for the injury alleged to have been sustained by him on the 29th day of January, 1925, while in the employ of the defendant company, the Louisiana Central Lumber Company, and while in the discharge of his duties. The evidence discloses that the plaintiff on the 29th day of January received an injury by a log falling from a wagon and hitting him on the back and at least fracturing two ribs on the right side. Prior to this accident in January, 1925, the plaintiff, in 1913, suffered an accident and as a result of which he had a hunch back at the time of his injury on the 29th day of January, 1925. Evidence also shows that prior to the 29th day of January, 1925, the plaintiff did hard manual labor by swamping and hauling logs from the forest of the defendant company to its tram roads, and since the latter accident the plaintiff has not been in the employ of the defendant company but has performed labor for one J. W. Harris. There is no question but that the plaintiff did receive a severe injury on the 29th of January, and according to the testimony of one Dr. Richardson it would take two or three months for the plaintiff to recover from this accident sufficiently for him to return to work. All of the doctors who have testified in the case admit that the plaintiff is in bad shape, taking into consideration that he also suffered a severe accident in 1913. The plaintiff, according to his own testimony, is able to do at least fifty per cent of the work that he originally did. The court is of the opinion that the plaintiff is entitled to compensation.
“It seems that the plaintiff had hauled logs for the company at" a price of three dollars and thirty cents per day except on the particular day that he received the injury, at which time he was only drawing two dollars and seventy-five cents per day, as he was acting as swamper. His general employment was that of a log hauler and not as a swamper, but on account of the teams not being in condition to work on this particular day he was swamping, and the court feels that the amount of compensation should be based upon three dollars and thirty cents and not upon two dollars and seventy-five cents, which was just special for that day.
“Prom the testimony the plaintiff should have sixty-five per cent of his compensation as being totally disabled from work for a period of twelve weeks, then the court feels that the plaintiff had sufficiently recovered, that he was able to do a certain amount of work, according to the testimony of plaintiff. The testimony on this point shows that he is not able to do heavy lifting but can drive teams, plow and hoe and is incapacitated to the amount of fifty per cent. As to how' long this incapacity will continue, the court is not able to determine at this time, but thinks that the plaintiff is entitled to recover not to exceed three hundred weeks sixty-five per cent of the difference in his original earning capacity and his present earning capacity, and the court fixes his present earning capacity at fifty per cent of his original earning capacity. That he should draw $12.87 for a period of twelve weeks and then draw $6.43 per week not to exceed three hundred weeks in all.”

Defendant’s counsel in this court complains that the District Judge ignored the testimony of the physicians some of whom testified, more or less confidently, that, in their opinion, plaintiff was not, at the time they examined him, a few days before the trial, suffering from any disability as a result of the accident of January 29, 1925.

Three of these physicians based their testimony on a physical examination made on May 14, 1925, and an x-ray picture made about the same time.

Of course the physical examination did not discover the fracture of' the ribs, the bones having at that time completely united. The picture also failed to disclose it. The testimony of Doctor Rand who took the picture shows that part of it was indistinct. It is not clear whether he means the part showing the ninth and tenth ribs or not. We are satisfied though from the picture taken about a week previously by Dr. Adair and also from the testimony of Dr. Richardson who treated plaintiff about two hours after the accident that the ribs were fractured. The testimony of the physicians, too, is based in part upon their belief that plaintiff could not by reason of his hunch ’back have done hard manual labor previous to the injury of January 29, 1925. The testimony of plaintiff, though, and that of Jessie Powell, Oliver Franklin and Cicero Franklin, fellow workmen, satisfies us that before said accident plaintiff could and did do hard manual labor.

Plaintiff testified that he worked for this defendant from in September, 1923, to the date of the accident, doing an able man’s work without pain, except that he got tired but says that others complained the same as he did; and that he did his work in the usual way with the usual degree of getting tired. Defendant made no attempt to contradict his testimony which, as said above, was corroborated by Jessie Powell, Oliver Franklin and Cicero Franklin.

Again, some if not all of the physicians seem to exclude from consideration the plaintiff’s claim that he suffered pain when he attempted to do hard work since the accident. Doctor Peters says:

“Q. Now, doctor, assuming that this party did do the hardest kind of manual labor—loading logs, logging, hauling lumber and timber on and before January 29, 1925, without any pain, and without any extra exertion, and since the injury on January 29th he had been unable to do any manual labor without the greatest of pain, would you say that this recent injury had any effect on it?
“A. If such facts were established beyond any doubt, the natural inference would be that he did. There is a tendency for symptoms to be correlated to an injury like that, and we based our opinion more on general deductions from what we find, and on physical examination, rather than what a patient claims.
“Q. I will ask you, assuming that it is a fact that this person was able to do all kinds of hard work?
“A. Assuming that fact, I would say that it did, but I do not assume that fact, except for the reasons of answering the question. I am not positive.”

From their standpoint the physicians may be justified in ignoring or excluding from consideration the pain which a patient being examined claims to suffer; but the law makes the injured party a competent witness and where they testify that they do suffer pain we are compelled not indeed to take their testimony without question but to consider it and to give it such weight as we think it entitled to in view of all the other evidence in the case, and especially in view of the apparent candor or want of it disclosed by the testimony of the witness as a whole.

In accepting the testimony of the plaintiff in this case respecting the amount of work he has been able to do since the accident, and the pain suffered if he attempts to do hard work such as he did before the accident, we cannot say that the District Judge manifestly erred.

Plaintiff testifies that since the accident he has hauled lumber two or three days, hauled logs two or three days, and plowed for several pieces of days, but says that in the hauling he simply drove the teams, other parties loading and unloading the wagons, which he was unable to do.

Jessie Powell to some extent corroborates this testimony as to other parties doing the loading and unloading, and says “I have been working with him and he is absolutely unable to do a man’s work according to my ability”; and, also “he was with me trying to haul logs but he only done the driving and I done all the heavy work”.

Considering all the testimony in the case we do not find any error in the District Judge’s conclusion that plaintiff was entitled not only to compensation for total disability for twelve weeks but also to compensation for partial disability on the basis of fifty per cent reduction in earning power for an additional 288 weeks.

We think, though; the Judge erred in basing the compensation on a daily wage of $3.30 instead of a daily wage of $2.75. As said by the District Judge, his general employment was that of a log hauler, the pay of which position was $3.30 per day; on the day of the accident he was working as a swamper, the pay of which was $2.75 per day.

The law provides as follows, Section 8, Subsection 3:

“The term ‘wages’ as used in this act is defined to mean the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury * *

The proof shows that according to the custom of defendant’s mill, employees were sometimes shifted from one job to another job but were paid the wages applicable to the particular job actually worked at. Under this custom we think the “contract of hiring in force at the time of the injury” was for plaintiff to. receive $3.30 per day when hauling and $2.75 per day when swamping. Having been injured, therefore, when swamping, his wages must be figured at those of a swamper. In some employments the compensation is based in part on the danger of the employment. If a workman whose regular employment was less hazardous is temporarily shifted to a job more- hazardous, we think it 'would be unfair to him upon being injured while at work at the more hazardous job to base his compensation not on the wages of that job but on those of the less hazardous one. If this be correct, and we are satisfied it is, then, of course, the converse of the proposition is also true.

For these reasons it is decreed that the judgment of the lower court be amended by reducing the allowance made to plaintiff for total disability from $12.87 a week to $10.72 a week and by reducing the allowance for partial disability from $6.43 per week to $5.36 per week; and as thus amended it is affirmed.


author: WEBB, J.

text:
    No. 2517
    Second Circuit
    J. L. NELMS v. LOUISIANA RAILWAY & NAVIGATION COMPANY
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Railroads—Par. 88.
    “In actions for injury of stock under Act No. 70 of 1886, the burden of proving freedom from negligence is upon the defendant railroad company.”
    2. Louisiana Digest—Evidence—Par. 337, 343, 349.
    Courts are not authorized to disregard the positive testimony of witnesses who were in a position to have had knowledge of occurence related, unless there is an inherent improbability in their statement, or their testimony conflicts with itself, or the facts related are in conflict with unquestioned physical facts in evidence, or unless the witness is impeached or his conduct on the trial is such as might warrant the court in disregarding his testimony.
    (Civil Code Art. 2315. Editor’s note.)
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides, Hon. Leven L. Hooe, Judge.
    This is a suit for the value of a mule killed by being hit by a railroad train.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    C. H. McCain, of Colfax, Peterman, Dear and Peterman of Alexandria, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

On August 5, 1924, at about 9 o’clock, p. m., the locomotive of a south bound' passenger train operated by the defendant, Louisiana Railway & Navigation Company, over its line between Shreveport and Alexandria, struck and killed a mule belonging to plaintiff, J. L. Nelms.

The collision occurred at a place where the track is straight, and at a point near a switch, which is something like thirty yards north of a logging road which crosses the track.

The plaintiff had a logging camp nearby, consisting of a car-house, just off the right of way (which is fifty feet from the track) and on the right side, facing south, and which is stated to be about sixty yards from the switch, in which his employees slept, and a lot across the right Of way from the car-house, in which the teams were penned, from which eight head of. stock belonging to plaintiff had broken out, on the evening of the collision.

The engineer and fireman were the only witnesses who claim to have seen the collision, and plaintiff, Nelms, and his employees, N. Bowie and W. C. Guilliams, and Isham Williams, section foreman, who claim to have made an examination of the premises on the morning following the accident.

The animal was lying near the switch, to the right of the track, and there were two cuts or gashes on the body, one above the left eye and the other on the left flank, near the hip.

Nelms and Guilliams state that there were hair and blood on the cross ties to the right of the rail for a distance of twenty or thirty feet, indicating that the animal had been dragged after it was struck, and Bowie also said that the- animal had been dragged for thirty or forty feet, while Williams states that he did not see any hair or blood on the ties, or indication of the animal having been dragged by the train.

Bowie and Guilliams, who were sleeping in the car-house, state that the brakes were applied and the train brought almost to a stop right in front of the car-house; they do not claim to have seen the collision, and Guilliams says that he had been asleep, and was awakened by the train stopping.

The evidence of the engineer was in part as follows:

“Q. Are you the engineer that was in charge of the train on the night that Mr. Nelms’ mule was killed—was struck up here about mile post 116?
“A. Yes, sir.
“Q. How many cars were on the train?
“A. Four.
* * «
“Q. Now, about how fast were you going?
“A. Forty-five or fifty miles an hour.
“Q. At that speed, on a level grade, as has been testified to here, and with a train of four coaches, within what distance can you stop?
“A. Well, in about four hundred or four hundred and fifty feet.
“Q. Do you remember the occasion of striking this mule?
“A. Yes, sir.
“Q. Where were you at the time that the mule was struck?
“A. On the seat box, (right side of cab) my place of duty.
"Q. When did you first see this mule, that is, where was he when you first saw him?
“A. He was running toward the track.
“Q. From which side?
“A. The right side, the engineer’s side.
“Q. Did he keep on coming toward the track?
“A. Yes, sir.
“Q. What did you do when you first saw him?
“A. I applied my brakes.
“Q. About how far was the mule ahead of you?
“A. I suppose he was seventy-five or a hundred feet.
“Q. About how far was he from the track?
“A. About twenty or twenty-five feet.
“Q. Was he walking or running?
“A. He was running.
“Q. Did you have time to stop your train before the mule was struck?
“A. No, sir, I did everything I could to stop.
“Q.' * * * Now, did the cow-catcher or the pilot-beam strike the mule?
“A. The pilot-beam, I think he was between the pilot-beam and the cylinder head.
“Q. On the front of your engine?
“A. No, sir, on the side of the engine.
“Q. Do you remember whether you blew the whistle or not?
“A. Yes, sir, I blew the whistle at the crossing, for the crossing there. There is just a little road crossing there.
“Q. How far is that from the scene of the accident?
“A. Right at it.
“Q. Did you blow the whistle when the mule showed up?
“A. Yes, sir, two long and two short.
“Q. He (the mule) ran into the cowcatcher?
“A. No, sir, he ran into the pilot-beam and cylinder head.
“Q. Well, according to your statement, the mule never got on top of the track at all?
“A. . No, sir, -he never did come up on the track.”

The fireman says that when the animal was hit that its head and foreshoulder were over the first rail, and that it was struck by the pilot-beam.

The evidence was taken out of court and submitted.

Judgment was rendered in favor of the plaintiff for two hundred dollars, the value of the mule, from which the defendant appeals.

OPINIÓN

The trial court did not render a written opinion, and we do not know what were its findings as to the facts. '

It clearly appears from the preceding statement, that the decision must rest upon the question, as to whether or not the testimony has overcome the presumption of negligence which is against the defendant in actions for damages resulting from injury to stock -by trains.

“In actions for the injury of stock under Act No. 70 of 1886, the burden of proving freedom from negligence * * * is upon the defendant railroad company.” Colonial Sugar Co. vs. Y. & M. V. R. R. Co., 6 Orl. App. 205; Felix vs. Ill. Cent. R. R. Co., 10 Orl. App. 242; White vs. V. S. & P. R. R. Co., 2 La. App. 88.

The evidence of the engineer, if true, shows that the defendant was not at fault; but it is argued that his statement as to the manner in which the collision occurred is incredible, and that his testimony should not 'be considered.

The testimony of the engineer, that when he first saw the animal it was at a distance of seventy-five or one hundred feet from the engine, and from the track, of twenty-five feet, towards which it was running, is not claimed to be incredible, but the statement that the animal continued in its course until it came in contact with the engine at a point on the pilot-beam or between the pilot-beam and the cylinder head, which Would be a short distance from the extreme front of the locomotive, is questioned, as being beyond reason.

The lot in which the animal had been penned was across the track, and it is not an uncommon occurrence for animals to attempt to cross a track in front of a train and we cannot say that it was impossible or improbable that the animal in its attempt to run across the track could have come in contact with the locomotive as stated-by the engineer.

Courts are not authorized to disregard the positive testimony of witnesses who were in a position to have had knowledge of occurrence related, unless there is an inherent improbability in their .statement, or their testimony conflicts with itself, or the facts related are in conflict with unquestioned physical facts in evidence, or unless the witness is impeached or his conduct on the trial is such as might warrant the court in disregarding his testimony.

The evidence of the engineer is positive; it is not in conflict with itself or any unquestioned physical fact; he was not impeached, and the position in which the animal was found after the collision, as well as the testimony of the plaintiff’s witnesses, rather confirms than conflicts with his statement.

The testimony of the engineer shows that the defendant was not at fault. „

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s demands be rejected at his cost.


text:
    No. 2381
    Second Circuit
    ISAAC LUCAS v. MRS. E. M. PEART
    (February 8, 1926, Opinion, and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Automobiles—Par.— 4. 4 (a), 4 (d).
    A person who drives an automobile on the wrong side of the road and thereby compels another automobile approaching on the proper side of the road to take the ditch to avoid a collision and who a minute or two later, with four' feet of the gravelled road to the right of his right wheel, while travelling at a high rate of speed, runs into a truck that was either not moving or moving only slowly without seeing the truck was guilty of negligence and responsible for all damages caused by the collision.
    Appeal' from the Thirteenth Judicial District Court of Louisiana, Parish of Rap-ides, Hon. Leven L. Hooe, Judge.
    George J. Ginsberg, of Alexandria, attorney, for plaintiff, appellant.
    Thornton, Gist and Richie, of Alexandria, attorneys for defendant, appellee.
    STATEMENT OF THE CASE
    Plaintiff sues defendant for $227.40, damages alleged to have been done to himself and his automobile in a collision between his automobile and a truck belonging to defendant on September 25, 1924, on a public highway south of Alexandria.
    He alleges that the collision was due to the negligence of the driver of defendant’s truck.
    Defendant denied that the driver of her truck was negligent and alleged that the collision was caused solely by plaintiff’s own negligence and she reconvened for the sum of $50.00, damages alleged to have been done to her truck in the collision.
    The District Court rendered judgment rejecting the demands of both plaintiff and defendant. ‘ The plaintiff appealed and the defendant has answered the appeal and asked that her reconventional demand be allowed.
   REYNOLDS, J.

OPINION

It is established that there was a serious and dangerous collision between plaintiff’s automobile while it was being driven by himself and defendant’s truck while it was being driven by her son, and the only question to be decided is, whose fault was responsible for the accident.

Plaintiff swears, positively, that he was driving at a rate of speed not exceeding twenty miles an hour and on the extreme right hand side of the road in the direction in which he was going.

Defendant’s testimony, on the contrary, is as follows:

S. E. Peart testified, page 17:

“Q. Just tell how that accident occurred?
“A. Well, I was coming out of the field down there with a lot of wood, and was coming and turned down the road, and my uncle opened the gate for me, and there was a car or two stopped, and when I started to pull out I seen this car coming, and the car was coming so fast that it ran right on me before I had time to do anything, and I threw on my brakes; my ear was coming on an angle in the center of the road, and he came right straight on up and run his front wheel, I suppose, into my left front wheel * ®
“Q. In what part of the road was your car when Dr. Lucas’ car struck you?
“A. Near the center of the road.
“Q. In what direction were you turning?
“A. Turning to the right to go down the river.
“Q. In what part of the road was Mr. Lucas driving?
“A. Near the right side of the road, near the right hand side of the road, near the middle of the road; and he was driving so fast until when he turned around if he had swung or pulled over a foot further, he would have missed me entirely.
“Q. Did he slow down any at all?
“A. No, sir, not a bit in the world, only when his car turned over.

Page 18:

“Q. How fast, was he running?
“A. Just as fast as a Ford car could go.
“Q. Tour wheel was turned at an angle, to turn down the road?
“A. Yes, sir.”

J. B. Rowe testified; page 34:

“Q. Now, in what , part of the road did the collision occur, Mr. Rowe?
“A. Well, as he came out he began to make his turn, and his left forewheel was possibly a little over the center of the road, leaving plenty of room for the car between him and ditch on the other side.
“Q. Was there ample room on the gravel part, between the front end of his car and the right side of the road?
“A. There was something like three or four feet between where he hugged the truck with his hub, and the far edge of the gravel to the right of the road. The marks of that would show for a week, many of us looked at it.

Page 44:

“Q. On what part of the road was Mr. Lucas driving?
“A. Right at the center of the road.
' “Q. And if he had been on the extreme right of the road he could have passed without hitting the truck?
“A. Yes, sir.”

Kit Hathorn testified, page 57:

“Q. Mr. Hathorn, do you remember the occasion of the collision between the truck belonging to Mrs. E. M. Peart and the car of Mr. Lucas?
“A. Yes, sir.
“Q. Where were you that day?
“A. I was coming to Alexandria. I was hauling seed with a truck, and I met this man down below Mrs. Peart’s house.
“Q. About how far the other side of where the accident occurred?
“A. About three-quarters of a mile I guess.
“Q. State to the court how he was driving at that time, Mr. Hathorn? With reference as to whether he was running fast or slow, and what part of the road he was on?
“A. Well, when I met him, he was on my side of the road; he was driving very fast and he didn’t seem to see me; I had to get in the ditch and I drove over as far as I could and turned over and stopped.
“Q. About how fast was he running at that time?
“A. I don’t know but I know that he was running fast for a Ford.”

H. H. Peart testified, page 43:

“Q. After the accident occurred, did you shut his motor down?
“A. Yes, sir.
“Q. And how wide open was the spark lever and the gas lever?
“A. They were pulled down, as far down as they would go. It was wide open.
“Q. Just how did the accident happen Mr. Peart?
“A. Well, I really can’t tell you exactly how it happened but I saw him coming up the road at a high rate of speed, and my brother was about the middle of the road, making a turn, and he came along and locked his wheel and it shoved it around and it caused a dent in the car. He was right in the center, at the center, of the road, and when he went to make a turn he just caught that other wheel. He was going very fast; if he had stayed on the right side of the road he could have passed, but I don’t think that he saw it.”

E. E. Peart testified, page 18:

“Q. Was anything said to Mr. Lucas at that time after he got out from under the car, about the wreck?
“A. My uncle asked him why he didn’t go slow down. He saw him as he was standing on the ground and he tried to flag him, and he told us that he didn’t see us at all.”

From all the evidence we are convinced that Mr. Lucas’ extremely fast driving and failure to keep on the extreme right hand side of the road in the direction in which he was driving was the proximate cause of the accident and that he is responsible for all damages resulting from the collision.

The evidence as to the amount of damages suffered by defendant is very meager. We cannot base a judgment for damages on testimony dealing with items of damage in globo. The only evidence fixing with any degree of certainty any damage suffered by defendant is found in the testimony of S. E. Peart, page 54, who testified that the damages were as follows: a wheel, $3.50, a easing, $8.50, and an inner tube, $2.25, making a total of $14.25. For this amount defendant is entitled to judgment in reconvention.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended by allowing defendant judgment in reconvention against the plaintiff for the sum of fourteen and 25-100 dollars with legal interest thereon from judicial demand .and that in all other respects the judgment of the lower court be affirmed.


text:
    No. 2424
    Second Circuit
    ALBERT E. HUNTER v. H. E. WALDING
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Agriculture—Par. 9, 12.
    One who with his family resided on his plantation and has a growing crop thereon cultivated by a tenant working on “halves” is a planter, and a merchant furnishing necessary plantation supplies for use in making and that were actually used in making the crop has a privilege on such crop for the price of the supplies. Civil Code, Art. 3217; Cain vs. Pullen, 34 La. Ann. 511; Laleire vs. Wiltz, 31 La. Ann. 436.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rap-ides, Hon. R. C. Culpepper, Judge.
    Judgment affirmed.
    George J. Ginsberg, of Alexandria, attorney for plaintiff, appellee.
    Peterman, Dear and Peterman, of Alexandria, attorneys for defendant, appellant.
    STATEMENT OF THE CASE
    In this suit Albert E. Hunter seeks to recover from the defendant H. E. Walding, the sum of $266.43, a balance claimed to be owing on account for necessary plantation supplies alleged to have been furnished defendant to enable him to make a crop of aricultural products during the year 1923 and for $50.00 as damages.
    The suit was aided by a writ of sequestration under which 1115 pounds of seed cotton was seized and on which plaintiff claims a privilege for the amount of his claim as furnisher of necessary plantation supplies to make the cotton.
    Defendant denied owing plaintiff the amount claimed and especially denied plaintiff’s claim of a privilege and specially denied liability for items amounting to $53.17 charged on' the account sued on as having been delivered to E. R. Haworth, a tenant on defendant’s land and who cultivated the cotton sequestered, and specially denied liability for the item of $50.00 as attorney’s fees.
    On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for the sum of $266.43 with legal interest thereon from judicial demand but plaintiff’s claim for $50.00 attorney’s fees was rejected. The writ of sequestration was maintained and plaintiff’s claim was ordered paid out of the proceeds of the sale of the cotton in preference to all other persons.
    From this judgment the defendant appealed. Plaintiff did not appeal from that part of the judgment rejecting his claim for $50.00 ■ attorney’s fees.
   REYNOLDS, J.

OPINION

Plaintiff filed in evidence an itemized statement of the account sued on showing a balance claimed to be due of $266.43, and testified in regard thereto as follows:

Page 2:

“Q. Before we go any further, Mr. Hunter, did you yourself handle these items?
“A.i Yes, sir.
“Q. You are familiar with them personally?
“A. Yes, sir.
“Q. It is not a question of a clerk in the store handling them?
“A. No, sir.
“Q. Do you keep the books?
“A. Yes, sir.
“Q. Now, to our petition we have attached an itemized statement. Disregarding the items thereon shown as taken by one E. R. Hathorn, will you kindly examine that and say if it is correct?
“A. That is an exact copy of my books, yes, sir.”

This testimony established the correctness of the account sued on.

But defendant insists that there are certain items on the account, such as tobacco, candy, lace, aspirin, that are not necessary to the making of a crop and that for the price of these plaintiff has no privilege.

We have gone over the account and segregated all such items and find that they only aggregate $11.30 in the account sued on of $266.43. Should we refuse to sustain the claim of a privilege as to these items plaintiff would still be entitled to a privilege for the difference of $255.13 and this amount far exceeds the value of the cotton sequestered.

Defendant also insists that plaintiff was not entitled to a privilege because he did not reside upon the land on which the cotton was grown. This contention is not sound. Defendant’s own testimony shows* that he did live upon the land on which the cotton was grown. He testified, page 25:

“Q. Where were you living?
“A. About two and a quarter miles from Hot Wells, on what I would call the Hineston road, two miles south of Hot Wells.
“Q. Was that where this cotton was raised ?
“A. Yes, sir.
“Q. Was your family living there while your cotton crop was being worked and raised ?
“A. Yes, sir.
“Q. How many have you in family?
“A. I have a wife and four children.”

Defendant raised the cotton through the labor of his tenant, Hathorn, who lived on the land and cultivated it “on halves” for defendant. The crop therefore belonged to defendant and he owed Hathorn one-half of it for his labor in producing it.

Defendant further insists that he does not owe items on the accpunt amounting to $53.17 charged to him but delivered to Hathorn, for the reason that he did not authorize plaintiff to deliver these items to Hathorn or . to charge them to him, defendant, and defendant swears, positively, that he did not so authorize plaintiff. Plaintiff, on the other hand, swears with equal positiveness that defendant did authorize him to deliver the articles to Ha-thorn and charge them to him, defendant. He testifies, page 17:

“Q. Mr. Hunter, did • Mr. Walding tell you to charge Mr. Hathorn’s account to him?
“A. Mr. Walding and Mr. Hathorn came to my store together, and Mr. Walding said: ‘Mr. Hathorn is going to work my place on halves, and I want you to let him have what merchandise he needs, and I will pay it—charge it to me’. They adjusted that account, I understood from what they said between them, out of the proceeds of the crop. Mr. Walding authorized me to charge these goods to him, for Mr. Hathorn’s use.
“Q. Who else was there when he made that statement?
“A. Mr. Hathorn; I can’t recall any one else, but I think both Mr. Walding and Mr. Hathorn will admit that.
“Q. Do you remember when that was?
“A. I don’t know but I judge that it was just before Mr. Hathorn got the first item, because he had no account with me.
“Q. Where was that—in your store?
“A. Yes, sir, and Mr. Hathorn, until he got that first item, had not been getting anything from me. It was in the store where I live, where all these transactions were made.”

The District Judge who heard the witnesses testify and probably also knew them personally, accepted the testimony of the plaintiff as true, and we do not think he erred. Plaintiff’s testimony on this point finds corroboration in the fact that he did charge the items delivered to Hathorn on defendant’s account and in the further fact that he had seized certain cotton belonging in indivisión to defendant and Hathorn and that after defendant and Hathorn had made a division of the cotton between them plaintiff released the seizure as to the share assigned to Hathorn and held it as to the share assigned to defendant.

We think that plaintiff has established his claim by a preponderance of the evidence.

Plaintiff’s right to have the cotton sequestered is not questioned on any other ground than that he did not have any privilege on which to base a sequestration. We have found that he did have a privilege as furnisher of necessary plantation supplies.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


author: ODOM, J.

text:
    No. 2339
    Second Circuit
    CLARENCE B. KAGLE v. JOHN A. TUDOR
    (December 17, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Laws—Par. 10; Master and Servant—Par. 154.
    Act 247 of 1920, amending Section 22 of Act 20 of 1914, the Workmen’s Compensation Act, is unconstitutional and, therefore, double liability of the defendant employer cannot be enforced. Lehner vs. Mader, 153 La. 1042, 97 South. 34.
    2. Louisiana Digest—Mandate—Par. 10.
    Where one by his conduct allows others to believe that a certain party is his agent for the purposes of employing and directing labor, he is estopped from denying the agency.
    Appeal from Sixth Judicial District Court of Louisiana, Parish of Tensas. Hon. F. X. Ransdell, Judge.
    This is a suit brought by an injured employee for compensation under Section 8, Subsection 1 (b), of Act 20 of 1914, as amended by Act 43 of 1922.
    There was an exception no cause of action filed, which was overruled.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Richard K. Boney, of Tallulah, attorney for plaintiff, appellee.
    Tullos & Wade, of Yidalia, attorneys for defendant, appellant.
   ODOM, J.

This is a suit under the Workmen’s Compensation Act (Act No. 20 of 1914 and amendments).

Plaintiff alleges that he was employed by defendant through his agent, Dinger, to operate a Fordson tractor, and that on September 24, 1923, while operating said tractor, he received an injury which totally .and permanently disabled him from doing work of any reasonable character; and he brings this suit to recover 60 per cent of his wages fbr 400 weeks.

The defendant filed an exception of no cause of action, which was overruled.

Reserving his right under the exception, defendant filed answer in which he denied the allegations set out in each article of plaintiff’s petition, except the article setting forth that defendant had been notified of the accident and had refused to make settlement, which was admitted.

There was judgment in the District Court in favor of plaintiff and against defendant for the lump sum of $1890.00.

The plaintiff was receiving wages of $1.50 per day, or $9.00 per week. The judgment is based upon the finding by the court -that plaintiff had lost the use of his leg and, under Act 43 of 1922, the permanent total loss of the use of a member is equivalent 'to amputation of that member, and for the loss of a leg the employee shall be entitled to 60 per cent of his wages during 175 weeks. The court, therefore, awarded plaintiff compensation at 60 per cent of $9.00, or $5.40, per week for 175 weeks; but, inasmuch as defendant had not complied with the provisions of Act 247 of 1920, the amount was doubled.

The defendant has appealed.

The plaintiff has not answered the appeal nor has he filed a motion to amend the judgment.

ON EXCEPTION OP NO CAUSE OP ACTION

Defendant’s counsel did not argue the case orally before the court but submitted it on brief. As the exception of no cause of action is not referred to in his brief, we are not informed as to what is the alleged ground for the exception. We have, considered the question, however, and are of the opinion that the exception was properly overruled.

ON THE MERITS

The court allowed plaintiff twice the amount of compensation provided by the Workmen’s Compensation Act, under the provisions of Section 22 of Act 247 of 1920. In doing so, the court evidently overlooked the fact that said section of that act was declared unconstitutional by the Supreme Court in the case of Zehner vs. Mader, 153 La. 1042, 97 South. 34.

Counsel for plaintiff, in oral argument before the court, conceded that the action of the lower court in doubling the amount of the compensation was error; but he acquiesces in the court’s finding that the plaintiff is entitled to compensation during the period of only 175 weeks under Act 43 of 1922 for the loss of the use of a leg.

Counsel for defendant, in brief, says that the fact that plaintiff received a serious injury to his leg is not questioned, but he contends that plaintiff’s testimony, uncorroborated on that point, is not sufficient to warrant the court in holding that the injury was caused by the tractor, and he refers to the testimony of Mr. Scott, sworn for defendant, who says that the clutch could not have flown back so as to knock plaintiff’s leg into the wheel.

Plaintiff testified that while operating the tractor he attempted to reverse the gear and that the clutch few back, throwing his leg into the wheel, and that his leg was broken in the wheel.

Mr. Scott testified that it is impossible for one operating a tractor to get his leg into the wheel unless he put it there. But he was asked if the leg could get into the wheel accidentally, and he said it could.

Whether plaintiff’s leg was thrown into the wheel by the clutch or whether it was caught in some other way, we think, makes no difference, as we think the testimony fully warrants us in holding that in some way, while operating the tractor, he did get his leg broken accidentally.

Of course, if it is shown that plaintiff swore falsely as to the manner in which his leg was caught in the wheel, that fact fact might weaken his testimony. But, in view of his testimony that his leg was broken by the wheel, and the further fact that there is no suggestion or intimation on the part of anyone that the accident did or could have happened in any other way, we are warranted in accepting his version of it. The fact that plaintiff was operating the tractor on that occasion and that he was injured is not disputed by anyone.

The defendant seriously contends that he did not employ plaintiff to operate the tractor and therefore is not liable.

Defendant owned the plantation on which the plaintiff was working but did not live there. He says he employed a young man named Dinger to operate the tractor because he was recommended to him as an experienced man for that work, and that he did not authorize him to put anyone else in charge of it.

It is not disputed that Dinger employed plaintiff and set him to work operating the tractor, but defendant claims that Dinger’s act in doing so was wholly unauthorized by him 'and that he is not bound by Dinger’s act.

Dinger was not called as a witness, nor was his testimony taken by commission, as it might have been.

But, conceding that defendant did not authorize Dinger to employ plaintiff to operate the tractor, we think his conduct with reference to conduct of the business on the plantation was such as to bind’ defendant for Dinger’s act in that respect. As stated, defendant did not reside on the plantation, but he employed and put Dinger in charge of his affairs there. He did authorize Dinger to employ hands to reclaim and cultivate a portion of the land which he owned. Dinger employed the hands, fixed their compensation and directed their work. He made out the payrolls and sent them to defendant, whereupon defendant forwarded to him the funds necessary to make the payments.

Defendant says he told Dinger to employ only colored men from adjoining plantations to do the work; but he gave no directions as to who should be employed, except that they should be colored men. But the testimony shows that Dinger did employ the plaintiff and that defendant was on the place during plaintiff’s employment and saw him at work and made no objection to his employment. All the testimony shows' that Dinger was in full charge of and managed the affairs of the place.

Doctor Noble, a physician residing at Newellton in that parish, was asked about who had charge of the place, and he said Dinger was manager in 1922 and 1923, and that he saw Dinger in the fields directing the farm work, that he lived in the residence set apart for the manager of the place, and that Dinger called him as physician to attend the hands during their illness.

W. C. May, who lives in the neighborhood, saw Dinger on the place looking after affairs generally.

M. E. Cupples testified that defendant told him in 1924 that he had Dinger as manager in 1923 and that he let the houses go down.

Oscar Burton, sworn for defendant, says he heard defendant tell Dinger not to permit the plaintiff to operate the tractor; but that plaintiff was not present and did not hear such instructions. He says, however, that plaintiff did operate the tractor several days under Dinger’s instructions.

There is no testimony to show that plaintiff was ever told that defendant objected to his operating the tractor, nor is there any suggestion that he knew that he was in charge thereof contrary to the instructions of defendant.

We must, therefore, assume, under the circumstances, that plaintiff accepted the work in good faith, thinking that Dinger had authority to employ him and put him in charge of the tractor.

Defendant by his conduct allowed plaintiff and others to believe that Dinger was his agent for the purposes of employing and directing labor. He is now estopped from denying the agency.

Airey vs. Okolona Savings Institution, 33 La. Ann. 1346.

State vs. Irvine, 126 La. 435, 52 South. 567.

“Agency may be implied by holding out another as his agent, or by investing him with apparent authority, and he thereby becomes liable for such agent’s acts.”

Meyer vs. King, 29 La. Ann. 567.

Nor can secret instructions affect third persons who deal in good faith with an apparent agent.

Chaffe vs. Barataria Canning Co., 113 La. 215, 36 South. 943.

Here it is not a question as to what secret instructions defendant had given Dinger but what plaintiff, a third person, has a right, under the circumstances, to assume was Dinger’s authority.

Dinger was in charge of the place, was employing hands to operate it, fixed their compensation and directed their work.

Plaintiff had a right to assume that Dinger had authority to put him at work in charge of the tractor.

On the whole subject matter, see 2 Corpus Juris, pages 441, 461, 566, 572, 574 and 921.

Also Richardson vs. Springfield Insurance Co., 114 La. 802, 38 South. 563.

With reference to the injury, the proof shows that plaintiff had his right leg broken between the knee and the ankle. Immediately following the accident he went to a hospital in Natchez, Mississippi, where he remained for about seven months. Doctor Noble, a physician, who examined him in September, 1924, more than a year after the accident, said, with reference to the injury:

“No union of the tibia at all; the leg is much shorter and the patient is unable to walk without crutches.”

He said he was not able to do any work at all and gave it as his opinion that he is permahently injured; and he further says:

“Well, sir, there might be a possibility, by using an application of some kind, as a steel plate, or something of that kind. It might be fixed so that it would support the weight of his body, but it is impossible for the bones to unite on account of the distance between them that cannot be approximated.”

The plaintiff was receiving $9.00 per week. The court held that he had lost the use of a leg which is equivalent to the amputation thereof and was entitled to compensation at 60 per cent of his wages for 175 weeks under Act 43 of 1922. Plaintiff does not complain at-the lower court’s finding nor has he moved to amend the judgment. As above stated, it was error to double the compensation and to order in a lump sum.

For the reasons assigned, it is ordered that the judgment appealed from be amended so as to read as follows: It is ordered, adjudged and decreed that plaintiff, Clarence B. Kagle, have judgment against defendant, John A. Tudor, for compensation at $5.40 per week for a period of 175 weeks, beginning two weeks after the date of the accident on September 24, 1925, the payments to bear interest at 5 per cent from the date they were due until paid; defendant to pay all costs.