text:
    No. 552
    First Circuit
    ELECTRICAL SUPPLY CO. v. PACE
    (December 30, 1929. Opinion and Decree.)
    Moss & Siess, of Lake Charles, attorneys for (plaintiff, appellant.
    McCoy, Moss & King, of Lake Charles, attorneys for defendant, appellee.
   MOUTON, J.

December 3, 1927, plaintiff company sold a power unit for a No. 104 R. C. A. speaker to defendant, and on the same date shipped it to him at Lake Charles, Louisiana.

Defendant having refused to pay for the unit, plaintiff brings this suit asking judgment against defendant in the sum of $152.52, the price for the unit, with legal interest from February 1, 1928.

The defense is substantially that the unit was not a new one, but was second-hand and defective. The sum of $49.50 is also claimed in reconvention for express charges and damages alleged to have been caused by the defective unit.

Judgment was rendered rejecting plaintiff’s demand, and allowing to defendant the sum of $47 in damages.

Plaintiff appeals.

William Maekee, radio man of plaintiff company, testifies that the unit shipped to defendant was of the identical type ordered, was brand new, had been properly tested on signals in broadcasting stations before shipment, and was not defective in any of its parts.

December -4, 1927, defendant wrote a letter to plaintiff company complaining that the unit was defective; and, was not functioning properly. The unit was shipped back to (plaintiff company.

In a letter to plaintiff of December 11, 1927, defendant referred to the unit as being new, but at the same time asked for a new unit, suggesting that it should be shipped directly from the factory. This suggestion indicates, it seems, that the unit was not new, because if defendant had so considered it, a new one from the factory would not have been requested.

Though the word “second-hand” — one of the grounds for the defense — is not used in the letter of December 11th, the equivalent appears in the demand for a new unit. The unit was, after its return, received in New Orleans at plaintiff’s establishment, was repaired by Maekee, its radio expert, by the replacement of the condenser, and was then shipped back to defendant at Lake Charles.

The defendant, an expert in radio science, made the required connection of the power unit which apparently operated properly for two or three hours on its first trial, but on the second day became weaker and proved unsatisfactory. The defendant never used the unit thereafter and stored it away, expecting that plaintiff would furnish a new unit.

May 5, 1928, defendant wrote to plaintiff asking a discount on the price of the unit or else for advice as to what disposition he should make' of the unit. Plaintiff would not agree to the discount and this suit followed.

The defendant explains that this letter of May 5, 1928, was written after he had had a full verbal discussion with Mr. Jansen, traveling agent of plaintiff, who suggested that defendant try to place the unit. He says he had a prospective purchaser for it, and could have disposed of it as a second-hand unit as was suggested by Jansen, less the discount asked for in the letter of May 5, 1928, all of which is referred to in the written opinion of the trial judge.

The defendant also contends that the back of the transformer is so close to the metal case enclosing the power unit as to render it dangerous and hazardous. Defendant says that he did not discover this defect until the day prior to the trial of the case. It is therefore apparent that he could not have complained of that defect in the letters which had preceded his discovery of this danger.

The trial judge in referring to this subject quoted the following from the National Electrical Code of the National Board of Fire Underwriters, to-wit:

“The construction of an air-cooled transformer shall he such that when mounted-on a plain surface the casing will make contact with such surface only at the points of support, providing elsewhere an air space of at least one-quarter inch between casing and surface.”

The Court then proceeds to say:

“An examination of the power unit in question reveals that the transformer, which is an air cooled transformer, does not allow for an air space of at least one-quarter between the back of said transformer and the metal case enclosing said unit. This fact is not denied by plaintiff, and it is clearly apparent therefore, that the power unit furnished by plaintiff, did not, in this respect, comply with the regulations of the National Board of Fire Underwriters. Defendant and his witness, Jack Hildebrandt, an expert in electrical wiring, but having no expert knowledge of radio equipment, testified that the removal of insulation from the front of said transformer and the placing of the back part of said transformer so near to the metal case enclosing said unit would make it dangerous to life and property, through fire, to use said power unit in the condition it appeared to be at the time of the trial of this case. It is admitted by defendant that he did not discover that a sufficient air space did not exist between the back of said transformer and the metal case enclosing same, until the day prior to the trial of this case. The Court is of the opinion that this delay in discovering this defect in said power unit by defendant, does not preclude him from urging this defect, in connection with others, on the trial of this case. Plaintiff offers no evidence to rebut defendant’s claim that the use of said power unit in its present condition is dangerous and hazardous, but seeks to show that the apparent displacement of said transformer is due either to defendant having installed another transformer in said power unit, or is due to the displacement of said transformer by knocks, jolts or falls occasioned in the shipping, handling and storing of said power unit. Defendant strenuously denies installing any new transformer in said power unit, or in any manner tampering with said transformer. The Court must accept his positive statement as against plaintiff’s inference. The Court places no faith in plaintiff’s contention that falls or jolts to said power unit in shipping, handling or storing caused the apparent displacement of the transformer therein. The transformer is attached to the metal case' by bolts or screws coming through the bottom of said metal ease. It would therefore be impossible to jar or drive said transformer to the back of said metal case without the bolt or screw head fastening said transformer to the bottom of said case, showing some evidence thereof. No evidence is shown by these bolt or screw fastenings. In addition to this had the transformer been driven or shoved toward the back of the containing case, the front part of said transformer would also have been moved backward. The front part of said transformer does not appear to. have been moved back as is evidenced by the fact that it was apparently necessary to cut some insulation from the front part of said transformer in order to allow room to insert a radio tube.”

The placing of the transformer referred to by the court, no doubt made the operation of the unit hazardous and dangerous to life and property. This defect must have existed at the time of the delivery of the unit, as appears by the facts to which the city judge refers, and consequently at the time of the sale or before. C. C. art. 2530. With such a serious vice or defect in the thing sold it is not to be supposed that defendant would have bought the unit had he known of its existence. C. C. art. 2520. The fact is that defendant, speaking of this defect, said: “If I had known that the transformer did not have the proper clearance I would not have given twenty-five cents for the unit.” This serious defect, with the others complained of by defendant, entitled him to an avoidance of the sale.

This case is in reality one of facts which was resolved adversely to the contentions of the plaintiff. We do not find that the lower court has fallen into any manifest error in rejecting the demand, and there is therefore no authority to justify a reversal.

The judgment denying the claim of the plaintiff • and decreeing the sum of $47 to the defendant on his demand in reconvention is therefore affirmed with cost.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 557
    First Circuit
    HIGGINS LUMBER & EXPORT CO., INC., v. DRACKETT
    (December 30, 1929. Opinion and Decree.)
    C. A. Blanchard, of Morgan City, attorney for plaintiff, appellee.
    Borah, Himel & Bloch, of Franklin, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff sues on an open account claiming that defendant owes it a balance of $170 “for services rendered, labor and material during the year 1928.”

The defendant, in his answer, avers that plaintiff, in 1928, had rendered services, labor, and material to defendant on open account, but denied that any balance was due thereon, claiming he had paid the account in full on the 20th day of July, 1928. Further answering, defendant denies that the $170 were for the services, labor, and materials alleged, but that the claim was based on the alleged “yard rent on the ferry boat Cecil N. Bean and two barges from 5/22/28 to 6/25/28 at five dollars ($5.00) per day,” which item appears on plaintiff’s account annexed to the petition. The defendant then alleges that the charges carried in this item are entirely disconnected with the claim for the alleged services rendered, labor, and material for the year 1928; and, in connection with that averment, defendant alleges that the charges claimed by plaintiff for yard rent, etc., at $5 per day, were for mooring the ferry boat and the two barges of defendant in the Industrial Canal, a public stream, were therefore unwarranted and illegal, because, under the law, the board of commissioners of the port of New Orleans, alone, has the constitutional right of imposing rates and tariffs in such matters. Further answering, defendant alleges that: “In addition, it was specially and distinctly understood between plaintiff and defendant that there would be no charge by plaintiff against defendant for the mooring of said boat and barges in said canal.”

The proof shows that defendant originally entered into a contract with plaintiff company for a repairing of the steamboat, Cecil N. Bean, referred to in the item charging for yard rent carried on the account to which we have heretofore referred. This contract to repair the boat was completed, the account was rendered to defendant, and was paid with the exception of $170, for which this suit was brought.

It is shown that after the completion, of the contract the steamboat and the two barges were tied to the pilings of plaintiff company, and occupied from May 22, 1928, to June 25, 1928, a certain frontage of the space or portion of land on the bank of the canal which had been leased to plaintiffs by the commissioners of the port of New Orleans. The defendant, during the time intervening between the dates above stated, was engaged in repairing, through his employees, the said vessels. Machinery of the plaintiff was used, also the pilings, piers, or such appurtenances as were necessary to carry on the work to make the repairs needed on the steamboat and barges. It is for the use of these facilities that the rental charge of $5 a day is made.

It is contended by defendant that -the claim of the plaintiff is illegal; also, that plaintiff had distinctly and specially agreed that no charges would be made by him for the mooring of the boat and barges of defendant in the canal.

We shall refer to portions of section 7 of article 2 and section 1 of article 3 of the lease' from the board of commissioners of the port of New Orleans to plaintiff which have some bearing on the contention of defendant that the charges were ■ illegal and unwarranted.

Section 7 of article 2 prohibits the assignment or such letting . of the leased premises by plaintiff company, or of any portion thereof, without, the written consent of the board, the lessor..

The understanding or agreement between plaintiff company and defendant simply allowed the use of the company’s pilings, piers, or facilities to' defendant to carry out the work necessary for the -repairs he was making on the steamboat and bargsg. There, was certainly no assignment or subletting of the premises, there being no fact that could possibly sustain such a contention. There was no price fixed for the use of the facilities plaintiff had permitted to .defendant, and therefore no lease, if such a contract had been intended, as a price in money, commodities, or fruits should be certain to constitute a lease. C. C. arts. 2669, 2671. The agreement entered into without the consent of the board of commissioners was therefore not in violation of .the prohibition contained in section 7 of article 2 of the lease.

It is provided in section 1 of article 3 of the lease that vessels or other watercrafts ..entering the canal on the exclusive business of the lessee shall be exempt from canal and lock fees, except when they pass • completely through the canal from the lake to the river, or from the river to the lake. ■ The foregoing portion, section 1 of article . 3, has no essential application to the issue presented. The latter part of the section provides as follows, and this applies to the . contested points between the litigants, viz:

“And provided further that vessels or other watercrafts using privately owned wharves or facilities within the canal on business either in whole or in part of any other than the owner or authorized lessee of said wharf or other facilities used, shall pay to the lessor the regular charges of the lessor.”

The lease provides generally for the imposition of tolls, fees, tariffs, or canal charges on all vessels or watercrafts using the canal, with the exceptions made in -favor of lessees. It will be observed that, in the excerpt from section 1 of article 3 of the lease, above reproduced, that these charges must be paid to the board for ves'sels or other watercrafts “using privately owned wharves or facilities within the canal ■ on business either in whole or in part of-any other than the owner or authorized lessee of said wharf or other facilities used.”

Obviously, under the terms of the lease, when these privately owned wharves or facilities are used in the business of the lessee, the tolls, tariffs, or canal charges are not to be paid to the board.

In the instant case it is shown that the steamboat had been repaired by plaintiff company under a contract with defendant which had been paid, with the exception of the $170 sued for herein. It is evident that these repairs were made in the regular business of the company; the use of the facilities allowed by plaintiff to defendant for the repair of the steamboat and two barges was likewise connected with the business of the company. The defendant therefore owed no charges to the board for the benefits he had received from the use of these facilities. The use defendant made of these facilities was in the business of plaintiff company under the agreement or understanding it had with defendant. The charges made by plaintiff were not for tolls, fees, tariffs, or canal charges, as was explained by A. J. Higgins, manager of plaintiff company. They were not illegal or unwarranted.

In addition to the defense of their illegality, defendant contends that, by virtue of a special and distinct understanding with plaintiff, he was not to be charged for the mooring of his boat and barges. If the charges were illegal or unwarranted, as contended for by defendant, it seems a little singular that he should have had a special understanding with plaintiff company that plaintiff would make no claim for them. Be that as it may, it was incumbent upon defendant to prove that he had had such an understanding with plaintiff. The proof is thatj when the original contract was entered into for the contemplated repairs on the steamboat, plaintiff company, through Higgins, its representative, said that no charges would be made while it was undergoing the needed repairs. This promise not to charge had reference to the steamboat while it was undergoing repairs, and could not possibly have referred to the steamboat and barges which were tied near plaintiff’s plant, after the contract for the repair of the steamboat had been completed under the original contract. We are unable to find in the record that any such promise was made by plaintiff for the use of its premises, during the two months’ period, when, after the completion of the original contract defendant undertook individually to make the repairs on the barges and the steamboat.

Even if the testimony of defendant and of his son, Ernest, can be understood as an attempt to show that such a promise was made when the barges and steamboat were under repairs, we do not find that defendant has sustained the burden of proof required to maintain that contention. We find it unnecessary to comment on the evidence of Marzoni, which is so illusive, noncommittal, and negative that it adds no probative force to the case one way or the other, and is entirely valueless.

The evidence shows that the claim of plaintiff is not for canal wharfage, tolls, or tariff, but for the use of the pilings, piers, and facilities of plaintiff’s plant, and for expenses which were incurred to move its equipments around defendant’s boat and barges. It is shown that the services rendered are worth the amount claimed, for which we find that judgment was correctly rendered.


author: LECHE, J.

text:
    No. 538
    First Circuit
    CHAFIN v. MERIDIAN LBR. CO
    (December 30, 1929. Opinion and Decree.)
    Fern M. Wood, of Leesville, attorney for plaintiff, appellee.

      Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues for compensation. In his petition, he alleges that defendant had due notice of the injury from which he suffered immediately after it occurred, that he has made amicable demand for payment without avail, and that defendant company is not now paying petitioner any compensation, etc. Defendant pleads that the action was brought- prematurely, but this plea was overruled by the trial court.

On the trial of the case, plaintiff expressly admitted that he made no demand for compensation, and it follows, therefore, that defendant did not have the opportunity to refuse payment.

Defendant invokes the provision of the Employers’ Liability Act, sec. 18, as amended and enacted by Act No. 85 of 1926, p. 121.

The cited section 18 of the act of 1926, provides in paragraph (B) .that, unless it is alleged that the employee has not been paid and that the employer has refused to pay, the presentation or filing of such complaint shall be premature and shall be dismissed.

The petition of plaintiff does allege, in substance, failure and refusal of defendant to pay. But, continuing, paragraph (B) further provides that, when such allegation is contained in the complaint and is denied by the employer, as is done in this case, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed; and the question of whether or not such allegation of nonpayment Is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved. But the fact is admitted by plaintiff in his testimony that he has made no demand for compensation, and plaintiff does not therefore dispute that defendant at no time refused to pay.

This same question was presented to us in the case of Moss vs. Levin et al., 10 La. App. 149, 119 So. 558, 120 So. 258, and we there held that such allegation and proof are made a necessary condition precedent, before the court may pass on the merits of the demand.

Such defense may appear exceedingly technical, and the purpose of the provision in the statute is not very apparent, but the language in which it is couched is plain and unambiguous. This court, is of inferior jurisdiction, and we have -not the power to' ignore or alter the plain provisions of a. statute under the plea of giving it construction.

Believing then that plaintiff has failed to present his complaint in the manner an'd form prescribed by paragraph (B) of section 18 of Act 85 of 1926, p. 121, we feel in duty bound to dismiss the same without prejudice.

For these reasons the judgment of the district court is avoided and reversed, and plaintiff’s suit dismissed at his cost, and without prejudice.


text:
    No. 567
    First Circuit
    CULLOTTA v. WASHINGTON ET AL.
    (December 30, 1929. Opinion and Decree.)
    Porteus R. Burke, of New Iberia, attorney for plaintiff, appellant.
    L. C. Bryant, of Jeanerette, attorney for defendants, appellees.
   LECHE, J.

This case had previously been heard by this court and, according to the judgment which we rendered therein after the first hearing, was remanded for the purpose of receiving evidence as to whether a credit of $71.57, indorsed on the instrument sued on, was really made by defendants so as to effect an interruption of prescription. See original decree filed June 7, 1927.

The burden of proof to show an interruption, where the instrument upon which the suit is based is prescribed on its face, rests upon plaintiff.

The note was drawn and subscribed on March 20, 1919, and was made payable ten months after date, or say on January 20, 1920. The credit indorsed on the note is in the following language: “Paid on within note 1/2/25 — $71.57.” On its face the note became prescribed on January 21, 1925, but if the payment indorsed thereon is true and correct, such payment created an interruption and extended the time before prescription could again accrue, to January 2, 1930. This suit on the note was filed October 26, 1926, and it is therefore essential to find out whether the payment denied by the defendants was really made as evidenced by the indorsement written by plaintiff on the back of the note. A note could not be paid without the maker’s consent. Even benefits, says the Supreme Court, cannot be forced upon a person against bis will. Sharpe vs. Levert, 51 La. Ann. 1249, 26 So. 100; Wood vs. Monteleone, 118 La. 1005, 43 So. 657.

Defendants deny having made the payment indorsed on the back of the note. A son-in-law of the former holder of the note testified that the credit of $71.57 arose from the proceeds of a crop turned over to his father-in-law. But defendants deny this, and claim, if we understand them well, that the proceeds of the crop were used to pay for groceries and advances, an account entirely separate and distinct from the note.

The trial judge, after hearing all the testimony, concluded that plaintiff had failed to prove the alleged interruption of prescription. We believe that his finding is correct, and his judgment is therefore affirmed.


text:
    No. 520
    First Circuit
    LEBLANC v. A. J. CHESNUT CO., INC.
    (December 30, 1929. Opinion and Decree.)
    Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellee.
    Borron & Johnson, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues for himself individually and as assignee of Mrs. Adam LeBlane and of Albert LeBlane, to recover damages for the cutting of trees on three separate tracts of land belonging to the respective parties. He prays for judgment for the value of the timber, for the cost of survey, for attorney’s fees, and for punitive damages. The action is possessory in character, and he could therefore only be called upon to show possession as owner for over a year and a day; real ownership of the property not being an issue in the case. Several objections to the admissibility of evidence were made during the trial, and, while they might apply in a petitory action, they were properly overruled, as the action here is purely possessory.

The defendant has appealed from the judgment rendered against it, which holds it liable to plaintiff in the sum of $141.32, and plaintiff has answered the appeal and prays that the amount of the judgment be increased to the sum of $288.52.

Plaintiff’s claim in damages, for cost of survey, for attorney’s fees, and for punitive damages, is not seriously urged in this court, and will be ignored for not being sanctioned by any law or jurisprudence now prevailing in this state.

Defendant bought some standing timber situated in the parish of East Baton Rouge, upon land adjoining the lands upon which it is charged with having committed the trespass alleged in plaintiff’s petition. The evidence shows beyond doubt that defendant did cut timber off plaintiff’s lands. The amount cut by defendant is shown 'as is usual, and in the only manner that it could be shown, by counting the stumps and measuring their size as well as the distance to the tops lying on the ground. The (preponderance of the evidence is to the effect that-defendant made all‘reasonable inquiry as to the location of the line separating the land upon which it had bought the timber, from the land of plaintiff. Its manager inquired from its author in title, its vendor, where that line was located, and it was pointed out to the defendant’s manager. This information was incorrect, but defendant had every reason to believe that it was the true line, and proceeded to cut the timber within its limit. Defendant acted in good faith, and did not realize the error until it was too late.

It was shown on the trial of the case that the true line had been fixed by a surveyor who had blazed its location upon trees, but defendant was not aware of this. Neither law nor custom compelled the defendant to engage a surveyor to trace and show the location of the line. It acted upon information which it had the right to assume as being reliable. Under these circumstances the district court properly held it responsible for the value of the stumpage only, and not for damages based on' loss of profit which plaintiff might have realized if he had cut and sawed the trees into lumber. Ball & Bro. Lumber Co. vs. Simms Lumber Co., 121 La. 627, 46 So. 674, 18 L. R. A. (N. S.) 244; Sibille vs. Eastham, 136 La. 557, 67 So. 364.

We understand that the judgment appealed from only condemns the defendant for stumpage value, and we see no error therein.

The judgment of the district court is affirmed.

ELLIOTT, J., dissents, believing that the amount of the judgment should be increased.


text:
    No. 542
    First Circuit
    JOHNSON v. PROVENCAL TURPENTINE CO.
    (December 30, 1929. Opinion and Decree.)
    Pern M. Wood, of Leesville, attorney for plaintiff, appellant.
    Eugie V. Parham, of New Orleans, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff, employed as a teamster by defendant company, while driving a wagon through the gate of a corral situated on the property of defendant, was injured, and brings this suit for compensation against defendant.

Judgment was rendered by the district judge rejecting his demand, from which he appeals.

The accident occurred on Saturday evening, September 29, 1928. The proof shows that plaintiff had been paid for his day’s work, had fed his team, was walking from the corral, and when about 200 yards away was asked by one Henry Williams to drive the latter’s team into the corral for the purpose of hauling some manure or fertilizer therefrom which was to be used by Williams for his garden. This team had been borrowed by Williams from Tom Rogers. It is clearly shown that the defendant company permitted the neighbors to haul manure from the corral to save the expense which it would have had to incur to keep it clean. Its removal was being done by Williams for his individual benefit, in which the company had no interest and exercised no control, authority, or supervision. It is therefore obvious that plaintiff drove the team into the corral to help out Williams, in whose exclusive service he was at the time.

Williams says when plaintiff was driving through the gate his head struck a beam, that the mules in pulling raised the body of the wagon, and that it “crushed him on his seat,” from which, according to the physician’s report, he suffered double aggravated hernia. It is therefore evident from the foregoing statement that when the accident occurred plaintiff was in the service of Henry Williams, and was not performing any services, which arose out of his employment in the course of his employer’s business, or which were in any way connected ■ with or incidental thereto.

As such are the facts, plaintiff has no right to recover compensation under the ■provisions of the Employers’ Liability Act (Act No. 20 of 1914 as amended). Piske vs. Brooklyn Cooperage Co., 143 La. 455, 78 So. 734.

The record shows that upon the report of a physician and of Philips, secretary and manager of defendant company, defendant awarded compensation to plaintiff during six weeks. Arguing from that, counsel for plaintiff contends that the claim of the company that its payments had been made in error was the result of an afterthought, and was manufactured solely for the purpose of escaping liability.

It is shown that at the time of the occurrence no investigation had been made by the company in reference to the accident. After familiarizing itself with what had really happened, the company stopped paying any further compensation. No doubt, these payments had been made by it from ignorance of that which really existed, or from a mistaken belief in the existence of that which had none. These payments, as we see it, were allowed through error of fact from which the company is relievable. C. G. art. 1821. :


text:
    No. 532
    First Circuit
    VALLEY SECURITIES CO., INC., v. DOUCET CORMIER, Intervener
    (December 30, 1929. Opinion and Decree.)
    Sandoz & Sandoz, and Dubuisson, Perrault So Burleigh, of Opelousas, attorneys for plaintiff, appellee.
    L. Austin Fontenot, of Opelousas, attorney for intervener, appellant.
   LECHE, J.

Plaintiff is the holder and owner of a judgment against Daly J. Doucet, defendant, founded on a claim for balance due by Doucet on one Essex automobile. It caused execution to issue, the Essex automobile was sold, but from the sale only a small portion of the judgment was realized, and there remained due to the plaintiff several hundred dollars. In order to satisfy the balance due on its judgment, plaintiff secured an alias writ of execution and seized another automobile, a Buick roadster, which apparently 'belonged to Doucet. This last seizure was opposed by J. Collins Cormier, who has intervened, and who claims to be the owner of the Buick roadster automobile. The district court held that Cormier’s title was simulated and maintained the seizure as being that of property belonging to Doucet. Cormier has appealed.

The controversy is then narrowed down to the question of ownership of the Buick roadster automobile, or as to whether a sale of the Buick roadster made by Doucet to Cormier, within an hour or two before the time of the seizure, is valid as having been made in good faith.

The salient facts are that Doucet came to the city of Opelousas about eight o’clock in the morning and parked his automobile around the Red Top filling station. That station had been operated by Cormier, but at the time of this occurrence, was being conducted by someone else. Doucet ordered that his automobile be Washed. Cormier, who conducted an automobile sales room in the same or adjoining building, soon thereafter arrived from his home near Port Barre, and within a few moments Doucet engaged in negotiation with him at once for the sale of his Buick roadster. An agreement was soon entered into by the parties and the sale was promptly written and signed.

Doucet knew that the sheriff held a writ for the seizure of his automobile. He even told the sheriff that he had loaned the automobile to someone and that the borrower had gone out of town to Ville Platte with it. There is no doubt, according to the testimony in the record, that Doucet was bent on circumventing the seizure and this accounts for the rapidity with which he transacted the sale. He misled the sheriff as to the location of the automobile and by that means delayed the seizure until about one o’clock in the afternoon, when Cormier then claimed that he was owner by virtue of the sale made to him by Doucet about nine o’clock in the morning.

Cormier and Doucet are old acquaintances. Doucet says about himself that he is engaged in selling slot machines, works around some store, operates pianos and in the summer time promotes fighting in Lafayette. He says further that he had bought the Buick roadster about two months before, for $1275. He acknowledges that he came to town, to Opelousas, with a view of selling his automobile to Cormier and that he would sell it cheap or at a bargain.

Cormier, it is admitted, is in part engaged in selling new automobiles and does not buy second-hand cars, except to the extent that he might accept a second-hand car as part payment for a new one.

It is remarkable how the parties to this sale went through all the forms whether necessary or not necessary, to evidence such a contract. The sale purports to have been made for cash. They secured the services of a notary public, and the purchaser drew his check in favor of the seller for the purchase price, viz: $816. The vendor went to the bank, secured the money which was by him brought to the place where the act was passed. The purchaser accepted as true a statement from the seller that there was a lien or chattel mortgage on the car for $216. The seller then took out of the money received from the bank in payment of the auto, $216, which he handed back to the purchaser and told him to use this amount to satisfy the lien on the automobile.

Delivery of the automobile was equally as formal as the manner in which the sale was made. Cormier says that he put his foot on the running board, took out an envelope from his pocket, took down the number of the motor and announced to the persons present, “It is my car.”

It is extremely difficult sometimes to expose simulated contracts. Persons who engage in such transactions are careful to surround them with all the indications that may impress third persons with their reality and this overeare on their part is often subversive of the purpose for which it is exercised. The credibility of the actors who go through the forms of simulated contracts is also an element which has a determinative effect- on the conclusions reached by the courts. The trial judge was of the opinion that the sale from Doucet to Cormier is a bare simulation. There are many circumstances that seem to confirm the correctness of his finding. He knows the parties and their witnesses and it would be unjustifiable on our part to reverse his judgment.

Judgment of the district court is affirmed.


author: WEBB, J.

text:
    No. 3626
    Second Circuit
    KNIGHTON v. WINLOCK ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    Kennon & Kitchens, of Minden, attorneys for plaintiff, appellant.
    Bertram F. Barnette, of Arcadia, attorney for defendants, appellees.
   WEBB, J.

This action presents the same issues as presented in the cause of Asa W. Knighton vs. Edwin Winlock et al. (La. App. No. 3594), 124 So. 582, this day decided, and, on the agreement of counsel, the appeal is dismissed at appellant’s cost.


text:
    No. 3594
    Second Circuit
    KNIGHTON v. WINLOCK ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    Kennon & Kitchens, of ■ Minden, attorneys for plaintiff, appellee.
    Bertram P. Barnette, of Arcadia, attorney for defendants, appellants.
   WEBB, J.

This action was instituted on August 8, 1928, to recover compensation for disability alleged to have been sustained by plaintiff while engaged in his employment with defendant on April 24, 1928.

Plaintiff alleged at the time of the accident he had sustained serious and permanent injuries to his side and ribs, and to the bones and vertebrae in the sacro-iliac region, causing a sprain, which had permanently totally disabled him to do work of any reasonable character, and he prayed for judgment for weekly compensation at the rate of 65 per cent of the weekly wages alleged to have been received by him at the time of the accident, for a period of 400 weeks, and for further judgment of $250 medical expenses, and defendant, in answer, while denying that plaintiff had sustained any permanent injury, admitted that plaintiff had sustained minor injuries on the date alleged from which he had fully recovered, and that he had been paid full compensation for the disability resulting from the accident, and denied liability for further compensation.

The cause was tried on November 28, 1928, but was not submitted until March 25. 1929, when the court rendered judgment in favor of plaintiff for $250, rejecting his demands for total disability, and dismissing the demand for partial disability.

Prior to the decree being signed plaintiff moved to reopen the cause and in the alternative for a new trial in order to introduce further evidence to enable the court to fix the rate and period of compensation for partial disability, which motion was overruled, and the judgment signed, and defendant appeals, and plaintiff has answered the appeal, praying that the judgment be amended and that he have judgment as originally demanded.

The evidence establishes that on April 24, 1928, plaintiff attempted to lower an attachment, “self cleaner,” of a gin-stand, and that the weight of the attachment, which the evidence indicates was above 500 pounds, came against his shoulder, bearing him against the gin-stand, causing painful injuries which disabled him and from which he was confined to his bed for one day, and remained at home for three or four days, when he returned to work for defendant at an ice plant operated by the latter, where plaintiff remained at work until about July 15, 1928, when, he states, his back pained him so much that ’■'e was forced to quit; however, in September, 1928, plaintiff began working at a cotton compress plant, where he was working at the time of the trial, and the evidence establishes that defendant paid plaintiff the full amount of wages while he was confined to his home, and thereafter until plaintiff left his employment, and that plaintiff’s wages while working at the compress plant were the same as had been paid him by defendant after the accident, which was slightly in excess of the' wages earned by plaintiff prior to the accident.

Immediately following the accident plaintiff was attended by a physician to whom he complained of pain in his shoulders and chest, who treated him during the period plaintiff was confined to his home, and until about June 10, 1928, when he discontinued his services, although at that time plaintiff complained of pain in the lower region of his back, and • for which he was treated by other physicians, who concluded from plaintiff’s statement of the region in which he suffered with pain, that he had a sacro-iliac subluxation or sprain of the sacro-iliac joint, for which he was given electrical treatment and advised to •wear a supporting belt, neither of which, however, appears to have relieved plaintiff of the pain and stiffness in his back of which he complained when he was discharged by the physician who treated him until about June 10th.

There was a conflict of opinion between the physicians as to whether or not the accident on April 24th would have caused a “sacro-iliac subluxation,” and the weight of the opinions of the experts was that it would not, and the evidence is conclusive that plaintiff did not complain of any pain in that region when he was treated by the physician immediately after the accident, and if the cause of the pain and disability complained of by plaintiff is attributable to a sacro-iliac' subluxation, we do not think the evidence establishes that such injury was sustained at the time of the accident, and if we accept the theory on which plaintiff based his action, that is, that the pain and disability was due to a sacro-iliac subluxation, plaintiff failed to prove his case.

While there cannot be any question that the weight of the opinions of the experts is that plaintiff did not sustain a “sacroiliac subluxation” at the time of the accident, ■ the evidence as to whether he had such injury at any time is not certain.

There were not any objective symptoms of such condition observable to the eye of the physicians, and the diagnosis was based upon the statement of the plaintiff relativé to the region in which he suffered pain, and that he was unable to stoop and bend his back or do manual labor in which the muscles of the back would be brought into play, and his statement of the nature of the injury, all of the factors • being dependent upon whether the statement of plaintiff was correct.

Plaintiff stated on the trial that he had been rendered unconscious by the accident, while the preponderance of the evidence was overwhelmingly to the contrary, and while there is some support of his statement that he was unable to bend his back or do heavy lifting without pain, in that it was stated by some of his friends that they had not seen him do such work since the accident, and by the evidence of defendant that, when plaintiff returned to work for him after the accident, he was not expected to do heavy lifting, and by the manager of the compress company that plaintiff had accepted employment with the understanding that he would not be called upon to do heavy work, on the other hand it is admitted that plaintiff had been employed by the defendant as engineer at an ice plant before the accident, and that after the accident he was employed in the same capacity, and the evidence shows that he had similar employment with tne compress company, and that in both services he performed manual labor, receiving higher wages than before the accident, and that there was not any reduction due to inability to perform the services incident to his employment.

Viewed in the most favorable light to the plaintiff the record shows that he experienced at times some ipain in his back which' he did not experience before the accident which had not affected his health or prevented him from undertaking the same employment as before the accident at the same or a higher rate of wages, which was not less than the wages usually paid in such employment.

The record shows that plaintiff was paid full wages for the period that he was disabled, and that the fee of the physician who attended him after the accident was paid by the defendant.

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


author: REYNOLDS, J.

text:
    No. 3574
    Second Circuit
    STRINGER v. THE NATIONAL BENEFIT LIFE INSURANCE CO. OF WASHINGTON, D. C.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    Lewell C. Butler, of Shreveport, attorney for plaintiff, appellee.

      John B. Files, attorney for defendant, appellant.
   REYNOLDS, J.

This is a suit upon a contract of life insurance.

The plaintiff alleged that defendant issued, on October 24, 1927, its policy of insurance on the life of Rubin Simmons, and thereby promised, in consideration of certain premiums, paid and thereafter to be paid, to pay to plaintiff $500 at his death, if he died more than nine calendar months thereafter or three-fourths of that amount if he died after nine calendar months and within one year from the issuance of the policy.

She also alleged that Rubin Simmons died on October 2, 1928, and that she was his aunt, that she had duly furnished defendant with proof of the death of the insured, and that it had refused payment of $375 owing on the policy notwithstanding amicable demand.

The prayer was for judgment for $375 with legal interest thereon from judicial demand.

The defendant filed an exception of no right and no cause of action, and after trial the exception was overruled.

Thereupon defendant. answered, setting up several defenses, all of which, except one, namely, that it was not alleged or proved that plaintiff had any insurable interest in the life of the insured, were abandoned on trial and are not urged in this court.

On these issues the case was tried and there was judgment in favor of the plaintiff as prayed for and the defendant appealed.

OPINION

EXCEPTION OF NO CAUSE OF ACTION

The exception was based upon the theory that in an action upon a life insurance policy it is necessary, in order to show a right of action, for the plaintiff to allege facts tending to show that she had an insurable interest in the life of the insured, and that an allegation that the insured was the nephew of the plaintiff is insufficient to show such interest.

Where one insures his life for the benefit of another, it is not necessary, in an action on the policy, for the beneficiary to allege that he had an insurable interest in the 'life of the insured.

37 Corpus Juris, page 608, paragraph 396.

ON THE MERITS

The only reason shown by the evidence and assigned here for refusal to pay the amount stipulated in the policy is that the plaintiff had no insurable interest in the life of the insured.

It was alleged in the petition and the evidence showed that plaintiff was the aunt of the insured, and the evidence also showed that the mother of the insured died when he was two years old and 'the plaintiff took charge of his personal welfare during his adolescence until he was able to earn enough money to pay for his life and to take care of himself, and that he had contributed wearing apparel and money to his aunt’s support from the time he became able to do so.

The plaintiff testified:

“Q. After the young man approached manhood, did he help you and your children?

“A. Yes, sir; he would buy the children a pair of shoes; or anything he could so, he would do it.

“Q. Did you pay part of the funeral expenses?

“A. Yes, sir; I did.

“Q. How much of that did you pay?

“A. I think that was $111.50. The total expense was $223.00, and I ©aid half of it.

“Q. How many years did you help him as a child?

“A. Oh, I helped him all his life until he was grown; all his life.

“Q. Then when he got grown, can you estimate about how much he gave you? All told, for you and your children; approximately?

,;A. No, sir; just any time he would come in he would help me.

“Q. Guess at it; you know about what it was.

“A. He helped me more than for five years.

“Q. Just about how much did he probably give you in a year?

“A. Well, if the truth he known, I expect -that it amounted to fifty dollars, or more, a year. Gave me money at different times.

“Q. Fifty.dollars a year or more?

“A. Yes, sir, more; because I remember his paying $5 for a pair of shoes for me.”

Elnora Simmons testified that she was the widow of Rubin Simmons, and—

“Q. To what extent, if at all, did your husband assist Effie Stringer and her children, towards their support, financially?

“A. He helped her in many ways; helped her with the' children; when they needed anything he would get it for them.

* sj: ' * * * * *

“Q. What relation, or affection; did your husband have for his aunt, Effie Stringer?

. “A. He always had the relation just as his mother; knew no other mother.

“Q. Rubin Simmons’ mother died when?

“A. His mother died when he was two years old.

“Q. And after that Effie Stringer was practically his mother, you say?

“A. Yes, sir.

*1* ‡ ‡ ‡ ^

“Q. Then, when he got old enough to make money, he began to contribute to her support and her children’s support?

“A. Yes, sir; he did.

“Q. Did Effie Stringer pay the funeral expenses of Rubin Simmons?

“A. She paid half of it.

“Q. How much was that?

“A. She paid $112.00 and I pa-id the other half.

“Q. Can you estimate about how much your husband helped Effie Stringer and her children in later years or. since you married him?

“A. I do not know, sir; it seems like three or four hundred dollars worth since I have known him. He always helped her and her children.”

The blood relationship existing between plaintiff and the insured and his conduct toward her from the time he reached manhood was such as to justify reasonable expectations of benefit on her part from his continued existence and to give her an insurable interest in his life.

In Rombach vs. Insurance Co., 35 La. An. 233, 48 Am. Rep. 239, it was held that a son-in-law had an insurable interest in the life of his mothér-in-law, the court saying:

“Even though such legal claim (of the beneficiary upon the insured for services or support) does not exist, yet where from the personal relations of the two, and the kindness and good feeling displayed by the insured to the insuree, the latter has a reasonable right to expect some pecuniary advantage from the continuance of the life of the former or to fear loss from his death, an insurable interest will he held to exist.”

And in Cronin vs. Insurance Company, 20 R. I. 570 (40 Atl. 497, 498), holding that an aunt had an insurable interest in the life of her niece, living with her at different times from early childhood, and whom she supports, the court said:

“The principle of these and other like cases is that the interest does not depend upon any liability for support, nor upon any pecuniary consideration, nor even upon kinship. It may be for the benefit of the old or the young, where the relation between the parties is such as to show a mutual interest, and to rebut the presumption of a mere wager. The contract is complete and legal in itself, and, when considerations of public policy do not prohibit its enforcement, there is no reason why it should not be carried out. The declaration in this case shows that the plaintiff’s claim is not objectionable on the grounds of public policy. It shows that the relation of the (plaintiff and her niece had been of such a character that each had reason to rely upon the other in case of need. Should the younger die first, the help and care which might have been expected from her in the declining years of the aunt could only be supplied by insurance on her life. This is no more speculati'on than a husband’s provision for his wife in the same way. It is natural and reasonable, and in accordance with modern business methods. In short, it is security for an insurable interest. We therefore think that the contract set' out in the declaration is valid, since it falls within the proper line of distinction between valid contracts, where there is mutual interest, and invalid contracts, which are evidently mere speculation.”

The facts of that case were very similar to those of the case at bar.

Under the law and the evidence the judgment appealed from is correct and accordingly it is affirmed.


text:
    No. 504
    First Circuit
    S. B. EASTERLY & SON v. RAY
    (October 10, 1929. Opinion and Decree.)
    (December 3, 1929. Rehearing Refused.)
    (January 6, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    A. W. Spiller, of Hammond, attorney for plaintiffs, appellants.

      Burns & Pierson, of Ponohatoula, and S. S. Reid, of Amite, attorneys for defendant, appellee.
   LECHE, J.

Plaintiffs received from the defendant his two checks in representation of the price of two carloads of beans sold by plaintiffs to defendant. Payment of the two checks were stopped and refused upon the instruction of the drawer, and the present suit is to recover their face value.

Plaintiffs’ demand is opposed in substance, on the ground that the beans contained in the two cars and delivered to defendant were worthless, and therefore that there was failure of consideration for the checks.

Plaintiffs are residents of Denham Springs, in the parish of Livingston, where they conduct a mercantile business. They buy and sell vegetables and fruit and other farm products. Defendant resides at Ponchatoula, in the parish of Tangipahoa, where he also buys vegetables and farm products, which he ships and sells in northern markets.

The agreement for the sale of the two carloads of beans was made by plaintiffs with defendant through telephone conversations, the two towns being about 35 or 40 miles apart.

The heaps were loaded on cars at Den-ham Springs, and by defendant’s orders were shipped north, where they were offered for sale. One car was consigned to Weingart Fruit & Vegetable Company, and the other to the Fifth City Produce Company, both of these concerns being located in Cleveland, Ohio. The account sales or returns from these two shipments show that after paying charges for transportation, inspections, commissions, cartage, etc., the beans were sold at a loss according to the price at which they were purchased from the plaintiffs. There is no dispute between the parties as to these facts, but there is serious contention between them as to who should bear that loss.

Plaintiffs before loading and shipping the beans caused them to be inspected by S. M. Sharp, who says that he was inspecting for the state department of agriculture, co-operating with the federal inspection service. Sharp issued two certificates showing that he graded one carload as U. S. Fancy and the other U. S. No. 1 about 75 per cent stock U. S. Fancy. These certificates are dated' respectively May 21, 1928, and May 24, 1928. The same beans were again inspected as to condition and quality at the request of the consignees in Cleveland, Ohio, within five days of the time they had been inspected at Denham Springs before shipment. The Cleveland inspectors were also disinterested and acted in their official capacity. The report on one carload shows that the beans were in “aged and wilted condition, spotted and many hampers showing small nests of decay.” The other report shows, “russeting .15 to 25% mostly severe, 3 to 5% of stock shows anthracnose, in a few hampers 3 to 5% shows soil rot or watery soft rot, mostly appearing as small spots.”

It is shown that beans in good condition when shipped in properly iced-and ventilated cars, and there is nothing to indicate that the beans in this case were otherwise shipped and carried, will remain in good condition for 10 to 14 days, and it is therefore obvious that when shipped the beans in these two cars were not in good condition, notwithstanding the inspection certificates issued at Denham Springs.

The consignees in Cleveland, in order to minimize damages, sold the two carloads of beans to the best advantage, and were able to realize therefrom $854.55, a sum insufficient to meet the expenses for shipping, transporting, and selling the same.

The spoilt condition of the beans when they were delivered in Cleveland seems to be thoroughly supported by the evidence. Plaintiffs obviously relied upon the certificates of inspection issued to them at Denham Springs by Sharp, the agricultural agent, and they believed that this was all the guaranty that defendant had the right to expect ás to the quality and grade of the beans, and we believe that they acted in perfect good faith. But, on the other hand, defendant testifies that what he bought were good beans, and that he placed no reliance on these certificates of inspection, for the reason that he had been, in former purchases from other parties, sadly misled by such certificates. This condition of the minds of the sellers and the purchaser is shown with reasonable certainty and they were both in earnest* good faith. The sellers relied on the inspection certificates, and the defendant, who lacked confidence therein, insisted on good beans. The result of the whole transaction leads to the conclusion that plaintiffs were misled by Sharp’s certificate, and that defendant did not get beans that were good, such as he had agreed to buy.

If the facts in this case be viewed without regard to the conditions or understanding under which the sale was made, the warranty implied by law on the part of the seller requires that the thing sold should be sound, and if it perishes through the badness of its quality, the seller must sustain the loss. Civ. Code, art. 2532.

The district judge rejected plaintiffs’ demand. We believe his finding was correct, and his judgment is therefore affirmed.


text:
    No. 570
    First Circuit
    BERGERON v. BABIN ET AL.
    (December 30, 1929. Opinion and Decree.)
    Wurzlow & Watkins, of Houma, attorneys for plaintiff, appellee.

      Harris Gagne, of Houma, attorney for defendants, appellants.
   LECHE, J.

The above cause was heard on its merits by this court several times as the result of its having been remanded to the district court, and it was finally determined by the Supreme Court on a writ of review. See Bergeron v.s. Babin et al., 167 La. 833, 120 So. 385.

The present proceeding is by rule, in the same case, to tax costs, and from an adverse judgment, defendants have appealed to this court.

A rule to tax costs may involve two questions: First, liability for costs; and, second, the amount in dollars and cents of such costs. The defendants in this case did not file any answer to the rule to tax costs, but in their brief and argument they seem particularly to contest their liability for costs. Their liability depends upon the construction or interpretation of the decree of the Supreme Court and that is a matter over which the Supreme Court itself has exclusive appellate jurisdiction.

The final judgment on the merits in this case was rendered by the Supreme Court, and, from the moment that court issued its writ of review, jurisdiction over the question of liability for costs came under its control and entirely within its jurisdiction. In the case of Johnson vs. Judges of Court of Appeal, 107 La. 69, 31 So. 645, the Supreme Court said in the syllabus:

“The judgment was rendered by the supreme court, and this court is vested with jurisdiction of a rule to tax costs.”

In the case of State vs. N. O. Debenture Redemption Co. et al., 112 La. 3, 36 So. 205, the court held that it had jurisdiction over a question of costs although the costs were in amount below its jurisdiction, where the questions involved relate to the execution of a judgment rendered by that tribunal. In the case of Freie vs. Luben, 107 La. 80, 31 So. 634, 635, the court held that where no appeal is taken on the main demand which is appealable to the Supreme Court the question of costs is not appealable to that court. The reasoning in the opinion seems to indicate that, as the district court had rendered the final judgment, it alone therefore had to determine the question of liability for costs; and in that case the court also says:

“It is for the court, whether appellate or inferior, which rendered the judgment, to take cognizance of the manner of its execution, when the proper manner of executing it, is to be determined” — citing C. P. art. 629.

Plaintiffs in brief seem to rely on the case of Barker vs. Houssiere-Latreille Oil Co., 163 La. 555, 112 So. 415, but that case is in line with the cases above quoted in this opinion, and it also is to the effect that the Supreme Court has jurisdiction over a rule to tax costs included in its own decree.

From these decisions it seems to us that defendants have appealed to the wrong court, and that they should have appealed to the Supreme Court.

For these reasons this appeal is transferred to the Supreme Court, provided the record is lodged in that court within 30 days of the finality of this judgment.


author: ODOM, J.

text:
    No. 3646
    Second Circuit
    PINCHERA v. SHREVEPORT RAILWAYS COMPANY
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant.
   ODOM, J.

Plaintiff brought this suit against the defendant to recover $25,000 damages for personal injuries received while riding as a passenger for hire on one of defendant’s -street cars. He alleges that on March 23, 1928, just as he entered the street car and before taking a seat, an explosion took place in the rear controller box, causing a flame of electricity and fire to issue therefrom, completely enveloping him; and that, as a result, his left hand and fingers were so severely burned that the bones were affected; that his hands and fingers are stiff and that he has lost use of them; and in addition thereto, his entire nervous system was so shocked and injured as to produce a state of chronic nervousness,_ insomnia and melancholia; that his blood vessels were injured and that his general health is greatly impaired. He charges gross negligence on the part of the defendant company.

Defendant, in answer, admitted its capacity as a common carrier of passengers for hire, and that plaintiff was a passenger on one of its cars, hut denied generally all other allegations of plaintiff’s petition. It especially denied that the accident complained of was due to its fault or negligence and averred that it was “due to the fault of plaintiff himself in unnecessarily causing the jacket of the controller on the platform of the car to become loose and drop out of place by his leaning against it or misplacing same with his hands or some part of his body, which permitted or caused the metal strip at the top of the jacket to come in contact with the controller, causing an electric current to flash arid thereby injuring two of the fingers of plaintiff’s hand, which negligence bars recovery.” In the alternative, it pleads contributory negligence in bar of recovery.

The case was tried before a jury which rendered a verdict awarding plaintiff damages in the sum of $7,500. Defendant appealed from the judgment based thereon; plaintiff appealed also on the ground that the award is inadequate.

OPINION

AS TO DEFENDANT’S LIABILITY

Plaintiff was a passenger for hire on one of defendant’s electric street cars in the city of Shreveport. It was a two-man car, the motorman occupying the front and the conductor, the rear end of it. Plaintiff entered the car at the rear end, paid the conductor his fare, and, while standing on the platform within eighteen inches or two feet of the controller, there was an explosion, or an electric flash, and a flame of fire from the controller which burned and injured him.

Counsel for defendant concede that, due to the very high degree of care which carriers of passengers for hire are required to exercise for their protection and safety, the plaintiff made out a prima facie case as to liability by establishing the above facts and that, in order to escape liability, the burden was shifted to defendant to show that the accident was due to no fault of its own. This, it attempted to do, but failed.

Defendant established beyond question that its car was equipped with up-to-date, standard appliances, all in good condition at the time of the accident and that the flash or blaze from the controller was not due to any defect in the wiring or machinery. • But the testimony shows that the flash or blaze from the controller was caused by an arc or short circuit which took place when the metal rim around the top of the controller jacket came in contact with the wiring in the controller, and that the jacket came in contact with the wiring because the jacket became loose and fell off, its top end falling or being shoved over against the wiring. The negligence of defendant consists in its failure to have this controller jacket securely fastened on so that it would not fall off. If the jacket had not fallen, there would have been no short circuit, no flash or blaze of fire.

The controller wires are housed in a wooden box, fastened to the end of the car. This box is about 38 inches long, with its lower end three and and one-half inches from the floor. The live wires in the controller box are shielded by a' wooden jacket or front which rests on a ledge at the bottom of the box and fits in at the top under another ledge. This jacket or covering is removable and when removed, the wiring is exposed. On either side of this jacket, about half way between the top and the bottom, there are two bolts or knobs, and attached to the immovable portion of the box opposite the knobs, there are hooks or latches which fit down over the knobs. These hold the jacket in place. The hooks or latches are held in place by set screws or taps which screw on to the bolts or knobs, so that when these taps are kept screwed on tight, it is impossible for the latches to be misplaced and impossible for the controller jacket to become loose and fall off. For some reason unexplained, these taps became loose and fell off, the latches got out of place, and the jacket fell off, the lower end striking the floor and the upper end leaned in and the metal rim around it came in contact with the live wires in the box — hence, the short circuit and the flash of fire which injured plaintiff.

The accident was due to the fact that the controller jacket fell off, and its falling off was due to the fact that the screws and latches were loose. The keeping of the controller jacket securely fastened on was a duty which rested solely upon the defendant. A neglect of that duty, where injury resulted therefrom, most assuredly fastened liability on defendant. Counsel for defendant recognized that and attempted to show that the screws and latches were loose and the jacket fell off through no fault of the defendant’s employees.

The testimony shows that the wiring in the controller box is regularly and very often inspected by defendant’s employees. To make the inspection, the jacket must be removed. There, is no testimony to show when or by whom this controller box was last inspected and therefore no positive testimony showing that, after the last inspection, the jacket was securely fastened on. Both the motorman and the conductor testified, however, that on the morning of the accident they had not observed anything wrong with the controller box, although they had in operating the car sat or stood very close to it, one of them stating that portions of his body had come in actual contact with it. But this is mere negative testimony and proves nothing, as the fastenings may have been loose without attracting their attention. It is shown that the movements of the car while in operation could have caused the jacket to fall off, if not properly fastened.

In explanation as to how these fastenings may have become loose, the motorman and conductor testified that this was an inbound car coming from the outskirts of the city and that they had brought in eighty to one hundred school children, many of whom had left the car previous to the accident; and that on this occasion, as was their custom, the boys stood up on the platform near the controller box; that boys on previous occasions had meddled with whatever trinket or contrivance they could lay their hands to and that it was probable that they had unscrewed the fastenings and loosened the latches to the controller box on this occasion. However, they said they had never known the boys to meddle with the controller box and that as far as they had ever gone was to blow the whistle and release the sand key, but, upon this particular occasion, they had done neither and, so far as they knew, there was no interference with the controller box.

This controller box was at the rear end of the car where the conductor had his place and where he stood constantly and was in position to see what was going on. He could have seen the boys tampering with the box, if they did so, and if they did so and he failed to see them, that was negligence on his part for it was his duty to look out for all such interferences with the machinery.

Defendant’s plea of fault and contributory negligence on the part of plaintiff fails for lack of proof. Plaintiff did not touch the controller box. He and his witnesses so testified, and the conductor himself stated that plaintiff was standing eighteen inches or two feet from the box when the accident occurred. The defendant is clearly liable.

AS TO THE EXTENT OP INJURY AND QUANTUM OP DAMAGE

The testimony, principally expert, concerning the manner and extent of plaintiff’s injury covers probably four-fifths of this voluminous record of 600 pages. There were ten physicians called, each giving his views as to the extent of plaintiff’s injuries. Some of them personally attended plaintiff and treated his wounds and stated conditions as they saw them; others gave expert opinions based upon hypothetical questions. Here, as is usual in such cases, they do not agree. Indeed, they are about as wide apart in their views as are the poles. In the course of their examinations, they ^ere led into discussions of highly technical and theoretical questions such as perhaps none but themselves understood. On these questions, they cannot or do not agree, so that if the question hinged upon the highly technical points raised by counsel and discussed by the physicians, the court would be left utterly bewildered— “lost in confusion worse confounded.” But fortunately there is some testimony given by lay witnesses, and then -there are some physical facts which are not disputed.

Plaintiff’s left hand was burned by the flash of fire from the controller box. He received what is termed an “electrical burn.” He went to a sanitarium where he was under the care of a special nurse and under treatment of physicians for nine days. One of the physicians testified that the patient was so badly shocked and so excited that it was necessary to administer to him the most powerful sedatives known in order to quiet him; that for some time he suffered the most excruciating pain; that there was an extensive destruction of the soft tissue of the hand, that is, the skin and sub-cutaneous substances, or substances under the skin down to and including the muscular sheet; that the skin and all tissue down to and including the covering of the muscles were destroyed, although neither the tendons nor the periosteum, or bone covering, were destroyed; that he called a surgeon in consultation as it was doubtful whether the hand could be saved; that an x-ray made a month later showed injury to the bones of the hand, brought about by the injury to the blood vessels supplying the nerves. He testified that he treated the patient for seven months, using every known method for the treatment of burns and finally gave up the case, because he was unable to effect a cure. He testified that the patient’s hand was disfigured, his fingers left partially stiff and looked like claws; that, during the whole time, the patient suffered intense pain and that he now has in that hand a disease, called “causalgia,” which means the constant presence of a burning sensation. He further testified that it was necessary, even up to the time of the trial, to keep the hand covered in order to exclude the air as the air intensified, the pain. When the first physician ceased his treatments, the patient went immediately . to another one who, while administering no special treatment, had him under observation for a period of six months. That physician found that plaintiff was suffering from “one of these rather peculiar and rare conditions that we sometimes have as a result of nerve injury, when you get a continuous burning pain that lasts for years, slowly subsiding and maybe in the course of time quieting down so that the patient is not troubled with it all the time. That is apt to leave more or less a crippled hand. * * * The character of the pain has been called ‘causalgia,’ a name given to it by competent neurologists and is a recognized term for that condition.”

He stated that when he first saw the patient, he seemed to be well nourished, but very nervous, had his hand covered with cotton and that the hand and arm seemed to be rigid, that he was in pain, that there was impairment of the nerve functions of the hand and that he (the physician) could straighten the fingers, but at the expense of great pain to the patient. He said:

“The wound had already healed, the skin had renewed itself and while the fingers were stiff, they could be moved by me.”

Other physicians, who examined the patient about the time of the trial, more than a year after the accident, stated that the fingers were highly sensitive, somewhat rigid and distorted, which was due, in their opinion, to the destruction or injury of the nerves and blood vessels. One of them stated that the plaintiff could neither straighten out his fingers to any marked degree nor flex them; that the circulation in the hand had been seriously interfered with.

Two physicians, called by defendant, testified that in their opinion plaintiff did not have the disease known as “causalgia,” but their opinion was based upon the assumption that he had received only a first degree, or minor, burn. They stated, however, that what is known as a third or fourth degree burn could cause that disease. There is no doubt that plaintiff did receive.a third degree or very severe burn. That is evidenced hy the fact that there was sloughing of the tissues and nerve injury. *

One of the physicians testified that plaintiff showed signs of traurnatic hysteria; that there was a portion of his body on the left side into which he inserted pins, without any indication of pain.

Plaintiff, before the injury, was an expert stenographer and typist, and drew a salary of $150 per month. He was also a pianist of some ability. He cannot use a typewriter or play a piano now. All the lay witnesses say that previous to the accident he was of a cheerful disposition and a good entertainer, but that since then, he is highly nervous, irritable, morose, and altogether a different man. He cannot use his left hand because he says it pains him constantly, and the physicians say that he yet s-uffers great pain. All the testimony shows that at the time of the trial, the fingers were stiff.

We have read with interest the expert testimony touching .the point whether a current of electricity could have or did pass through plaintiff’s body, under the circumstances above stated, it being counsel’s contention that plaintiff could not have received an electrical shock unless the current actually passed through his body. In view of the testimony of the four electricians called, we conclude that no current passed through his body, and for that reason, it may be true that he received no electrical shock. But the facts are that he received some kind of shock and that he was severely injured.

It is strenuously argued by counsel for plaintiff that the award is wholly inadequate, and by counsel for defendant, on the other hand, that it is grossly excessive. We think the verdict of the jury and the judgment based thereon does substantial justice to both sides.

The judgment is affirmed, with costs in both courts.


text:
    No. 3718
    Second Circuit
    JONES v. KING, SHERIFF ET AL.
    (December 31, 1929. Opinion and Decree.)
    William H. Mecom, of Columbia, attorney for plaintiff, appellee.
    C. P. Thornhill, of Columbia, attorney for defendants, appellants.
   REYNOLDS, J.

These cases were consolidated in the lower court, and one judgment, disposing of the issues in both, was signed. The appeal is from an interlocutory decree, rendered after hearing on a restraining order, enjoining the defendant, J. W. King, as sheriff of Caldwell parish, and the defendants, the People’s Bank, and M. L. Sears, as execution creditors of the plaintiff, W. H. Jones, from selling certain described land, seized under writs of fieri facias issued upon judgments obtained by the defendants, respectively, against the plaintiff, on the ground that the seized property was plaintiff’s homestead and exempt from sale.

OPINION

.The issue presented by the record being whether or not the property seized is exempt from sale under article 11 of the Constitution 1921, the Supreme Court and not this court has jurisdiction of the appeal. Constitution 1921, article 7, sec. 10.

It is therefore ordered that the appeal be transferred to the Supreme Court (Act No. 19 of 1912), and that the record on appeal be lodged in that court within 30 days after this judgment shall have become final.


text:
    No. 3586
    Second Circuit
    EMBRY ET AL. v. RESERVE NATURAL GAS CO. OF LA.
    Mabry & Carstarphen, and Albert P. Garland, of Shreveport, attorneys for plaintiffs, appellees.
    Spearing & Mabry, of New Orleans, and A. M. Pyburn; Pugh, Grimmett & Boatner; J. N. Marcantel, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

A motor truck, owned by defendant and operated by its servant, acting within the scope of his employment, knocked plaintiffs’ son, Stanley Embry, aged three years and nine months, down, one of its wheels rolling over his body, killing him; and plaintiffs brought this suit to obtain judgment against defendant for $26,150, being $12,500 for each, of them, as damages for the anguish caused them by the death of the child and loss of his love, society and companionship, and $150 funeral expenses incurred in his burial. They alleged that the death of. the child was caused solely by the servant’s negligent operation of the truck.

The defendant denied that the truck was negligently operated and denied that its servant was acting for it or within the scope of his employment at the time of the accident, and alleged that the accident was unavoidable, so far as its servant was concerned, and alleged that plaintiffs negligently permitted the child to play, unattended in a public street, and that their negligence barred recovery.

The case was tried to a jury on these issues and a verdict was returned in favor of each plaintiff for $3,750, and in favor of John S. Embry for an additional amount of $150. He remitted $13.75 of the $150, and judgment was rendered by the court against the defendant and in favor of John S. Embry for $3,886.25 and in favor of Mrs. Mary 0. Embry for $3,750, with legal interest on each of the amounts from judicial demand, and defendant appealed.

OPINION

The accident happened about 9 o’clock in the forenoon on October 25, 1927, in the 2800 block of Maple street in the city of Shreveport. Maple street runs east and west and this block is bounded on the east by Missouri avenue and on the west by Arkansas avenue. The width of .the street, between property lines, is sixty feet. There is a cement sidewalk on each side of the street, but the street itself is not paved, nor is there any curb on either side of it separating the sidewalk from the street. The block is four hundred feet long, and each side of the street is divided into ten lots of forty feet width each. Only one of the ten lots on the north side of the street is built on, namely, the fourth lot west of Missouri avenue. On the south side of the street two of the lots have houses on them, namely, the sixth and seventh lots west of Missouri avenue. The house on the north side is known as No. 2822 and is occupied by Mr. Cassard. The houses on the south side are numbered 2821 and 2823, respectively; number 2821 being east of 2823. Number 2821 is occupied by Mrs. Roberts and No. 2823 by Mrs. Hodges.

The accident happened in front of Mr. Cassard’s residence, Number 2822, on the east side of his house in front of his driveway.

The motor truck came into Maple street from Missouri avenue and stopped in front of Mr. Cassard’s house near the west side of the lot and a negro woman, Leola Bryant, whom the driver of the truck, John Smith, without the knowledge or consent of defendant, "had gratuitously carried there, alighted; and after a few seconds conversation with the woman, the driver put the truck in motion backward, his intention being to back it to'and into Missouri avenue. When the truck had moved from where it was stopped, a few feet from the west side of the lot on which the house, Number 2822, stands, to a point in front of the driveway, a few feet from the east side of the lot, it struck plaintiffs’ child, a wheel of the truck passing over and killing him.

The evidence as to exactly how the accident happened is conflicting.

Mrs. W. W. Roberts testified that she resided at Number 2821 Maple street and on the occasion in question had come out of her home and was on the sidewalk in front of her house. She saw the motor truck come into Maple street from Missouri avenue and drive up and stop close to a telephone pole in front of Number 2822 Maple street, Mr. Cassard’s home. The telephone pole is approximately five feet from the west side of the lot on which Mr. Cassard’s house stands.

“Q. How close to the pole was the truck located?

“A. Well, I couldn’t say exactly, but it was about — bound to have been very close, because the child was about even with the driveway.

*******

“Q. Mrs. Roberts, will you state in your own way, what you saw next to this telephone post, and what happened?

“A. Well, when I started across the street I heard the noise of the truck which was parked there with the negro sitting there and there was a negro woman had gotten out and she was standing on the right hand side of the truck and he was turned talking to her and he was backing up all the time and just as I looked I saw the child behind the truck and the truck kept coming backward and struck the child about here and he fell backwards and fell right flat on his back and I screamed for the negro to stop and I ran toward the truck screaming for him to stop and' he didn’t stop and, of course, by that time just as soon as the child fell he turned over. The truck was high and the child turned over and got up on his little hands and knees and naturally he was excited and he tried to crawl out and he crawled between the left front wheel and the back and got about half way when the left front wheel ran over him and I screamed for the negro to stop, that he had killed the child, and that is the very first time he had ever heard me, and he stopped and jumped out, and picked him up and laid him in my arms.

“Q. Was the driver of the truck talking to someone ?

“A. He was talking to the negro woman he had put oiit of the car.

“Q. Did you see the truck when it started backing?

“A. It was running when I heard it. It was making a noise when I first heard it.

“Q. Was the driver of the truck talking to the negro woman at the time he was backing up?

“A. Yes, sir.

“Q. Did the ■ driver look back?

“A. He did not.

“Q. Did he sound his horn?

“A. He did not.

“Q. How far from the rear of the truck was the little fellow?

“A. Well, I couldn’t just exactly tell. He wasn’t very far, because when I looked I saw the child fall, and he wasn’t standing — well, not very far, because the truck was moving and I saw the child fall backward.

“Q. Can' you indicate the distance where the hoy was standing?

“A. He was standing up in two or three feet, maybe not that far; but he was standing there naturally waiting for the truck to go on.

*******

“Q. Where you lived on West Maple street, in the vicinity where this accident occurred, all of the children play on your front yard and the other front yards and sidewalks?

“A. Yes, sir.

“Q. Play out in the street, too?

. “A. Yes, sir; naturally, because nearly every yard was right out to the street.”

Mrs. E. H. Hodges testified that she lived at Number 2823 Maple street and on the occasion in question saw defendant’s truck come into Maple street from Missouri avenue and stop in front of Mr. Cassard’s residence, Number 2822, near a telephone pole, and that there was a negro woman on the truck with the driver.

"Q. How long did he stay there?

“A. Well, I don’t know just exactly how long he stayed there, but he stayed long enough for the negro woman to get out of the truck, and he was talking to her.

“Q. Did you see him when he moved this truck?

“A. When he moved backward?

‘‘Q. Yes.

“A. I did.

“Q. What was he doing?

“A. Talking to the negro woman.

*******

“Q. Did he back the truck while he was talking?

“A. Yes, sir.

“Q. Did he sound his horn?

“A. No.

“Q. Did he look back?

“A. He did not.

“Q. Did he give any warning whatever that he was going to hack that truck up?

“A. He did not.

“Q. Mrs. Hodges, were you noticing the. child, where it was playing?

“A. Well, when I saw him first, he was on the opposite side of the street from the truck, and then the next time 1 looked up he was across the street standing ‘kinder’ behind the truck.

*******

“Q. I believe you stated that the truck was standing still when he crossed the street?

“A. Yes, the truck was still when he crossed the street.

“Q. Then, did he go to the rear or behind the truck?

“A. Yes; something — yes, he went behind it something like two or three feet from the back end of the truck and stopped.

“Q. When this truck was backed, as you have already stated, by the negro that was operating it, was the child standing still?

“A. When the truck started backing the child was standing still.

“Q. About how long had he been standing there, if you know?

“A. Well, I don’t remember; I don’t know.

“Q. Then, state what else you saw?

“A. Well, after the child stopped the negro began backing up and Mrs. Roberts, the lady living next door to me, screamed and hollered and told him to stop, and by the time she got that out of her mouth he had hit the child, I think with the two by four where the back of the body fastens on to the truck; that, or something back there, knocked him down and it kept backing and that put the child under the truck, because he was still backing, and then he got on his little all-fours and tried to come out, and that left front wheel passed over him.

*******

“Q. Was he coming toward the front end 0‡ the truck?.,

“A. You mean, was he crawling up?

“Q. Yes,-or to the side?

“A. He was crawling out the side of the truck.

*******

‘‘Q. That child had been playing on your side of the street when the. truck first came up, hadn’t it?

“A. Yes.

“Q. Did you see the child cross the street?

“A. Well, I saw it after it got about

“A. I suppose it was after the ball that middleways of the street, yes sir.

“Q. Going toward the truck?

“A. Yes, sir.

“Q. What was it going over there for? they had been playing with.

“Q. Did you see the ball?

“A. Yes, sir. They had been playing with it.

“Q. Well, where was the ball that the child was going after?

“A. Under the truck.

“Q. Did you see the ball under the truck?

•‘A. Yes, I saw the' ball under the truck.

“Q. Was the truck moving or was it still when the ball went under the truck?

“A. It was still, but the child was waiting for the truck to start moving forward so he could get the ball.

***** *

“Q. Well, after the ball rolled under the truck, and the boy started across the street to get it, just tell us, again, what happened, from that time on?

“A. When he got to the rear end of the truck, like two or three feet of it, the driver started backing up, talking to this woman on the street all the time, never looking back or sounding his horn or giving any signal whatever that he was going to move or back up, and about the time he began to back up Mrs. Roberts screamed at him and he didn’t pay her any mind. He just kept talking to this negro woman all the time.

“Q. Why did the little fellow go to the back of the truck when the ball was under the middle of the truck?

“A. Well, I suppose he thought the truck would go forward.”

An effort to discredit the testimony of Mrs. Roberts and Mrs. Hodges was made by the introduction in evidence of statements made by them soon after the accident and reduced to writing and signed by them.

That by Mrs. Roberts was as follows:

“Negro driving truck stopped in front of No. 2822 West Maple street' to let negro ■woman off truck. I was standing in front of my residence and saw the child across the street and saw the truck knock down the child and saw the wheel pass over its body. The child tried to crawl out from under the truck and about that time the left front wheel of the truck passed over the child’s body. I did not see the child go under the truck, but he was under same when accident happened. The negro driver got out of truck and picked the child up and I ran across the street and took the child from the negro’s arms and carried it toward home where I met the mother coming up the street.”

Mrs. Hodges’ statement was as follows:

‘T was standing in my door at No. 2823 West Maple street and saw a truck pull up and stop at No. 2822 West Maple street. I noticed a negro woman get out of truck, and the driver of truck started to backing up to Missouri avenue, where he intended to turn around. The little child had been playing with a ball and it seems that ball went under the truck that was standing there. The driver started backing up just as the child started under the truck after the ball, and the left front wheel of the truck ran over the child and killed it. The driver stopped after the accident and picked up the child and held it in his arms until Mrs. Roberts came and took the child from him. Little John Stanley Embry was playing ball with other children when the accident happened.”

These statements of Mrs. Roberts and Mrs. Hodges may be in conflict with their testimony as to where the child was when the truck began to back, but they are not in conflict with their testimony that the driver did not look back or blow his horn or give any other notice that the truck was going to move before it began to back.

John Smith, the driver of the truck, testified that, on the morning of the accident, he got the truck out of its storage garage and supplied it with water and gasoline. The garage was on the outskirts of the city. He received instructions by telephone from defendant to go with the truck to the warehouse of the Lee Hardware Company, which is in the center or business part of the city, and there get a load of dynamite and carry it to Cotton Valley. That after giving the truck water and oil and gas he drove toward his home to get his breakfast and on his way to his home saw a woman that he knew, Leola Bryant, who asked him to take her to her work on West Maple street. That she got on the truck and he drove with her to her place of work.

“Q. What happened after you got there?

“A. Well, when I drove up in the truck, she got out of the truck and said ‘much obliged,’ and I said ‘don’t mention it,’ and I looked behind me and didn’t see nothing and I was looking behind me backing up and didn’t see nothing behind me whatever and in backing the truck up I ran over this child. Some lady screamed and that caused me to look around, and when I looked I seen the child lying in front of me and I stopped the truck and asked what was the matter and some lady told me ‘you have killed that child,’ and I got out and picked the child up and some lady met mé and I said ‘let’s take him to the sanitarium’ and she said T will carry him, give him to me’ and X give him to her and continued to back up to Missouri avenue and turned around.

“Q. How long did you stop your truck before you started back?

“A. Just long enough for the woman to get out.

“Q. Where did you intend to go, when you started again?

“A. I was going on to Missouri avenue and continue my trip home.

“Q. For breakfast?

“A. Yes, sir.

“Q. How far had you moved backwards when you heard this lady scream?

“A. When I heard the lady scream, according to my estimate, I should have moved about fifteen feet, when I heard her scream.

“Q. Then you looked around toward the front of the truck?

“A. Yes, sir.

“Q. What did you see?

“A. I seen the child laying in front of me.

“Q. Where was it, on the road?

“A. Yes, sir.

“Q. In front of your truck?

‘‘A. Yes, sir.

“Q. How far in front of your truck?

“A. About fourteen feet, according to my estimate.

"Q. Were there any children on the street when you drove up there?

“A. No, sir.

“Q. Were there any out in the street?

“A. No, sir; there wasn’t any out in the street.

“Q. How long after you heard this lady scream was it before you stopped your truck?

“A. Just the minute I heard her scream I looked around and stopped at once.

“Q. How fast were you going?

“A. I couldn’t tell you, but I wasn’t going very fast. I was going very, very slow.

‘‘Q. Had you just started backing the truck?

“A. Well, I had been backing it long enough to back up about fifteen feet.

H: * * * * * ili

“Q. Did you know what the rules of the Reserve Natural Gas Company were about truck drivers taking on people to ride?

“A. I do and did.

* * * * * *

“Q. What were those rules?

“A. Not to haul any passengers.

“Q. You knew that, didn’t you?

“A. I did.

“Q. Well, when you picked up this colored woman, you were violating the rules of the company?

“A. I was.”

On cross-examination he said:

“Q. Then, when you turned into West Maple, did you see any children on the other side of the street?

“A. There were some children on the south side.

“Q. How many?

"A. I don’t know.

“Q. Where were they?

“A. Over in the yard.

“Q. Which is opposite to where you were?

“A. Yes, sir.

& * * Sfc ‡ ifc

“Q. And you stated that you backed the truck about fifteen feet, is that right?

“A. That is right.

“Q. Then when you backed the truck fifteen feet, during that time, when and how did you strike the boy?

“A. I don’t know. I don’t know how it was, but there he was, because I didn’t see him until the lady screamed and called my attention, and I looked around, and when I looked around the child was lying as much as fifteen feet or more ahead of me.”

We are of the opinion that at the time of the accident the driver of the truck was acting in the scope of his employment. His day’s work had already begun by his supplying the motor of the truck with water and oil and gas and taking the truck out of its storage garage and receiving instructions from his employer what the day’s work was to be. The fact that before going to the Lee Hardware Company’s warehouse to get the load of dynamite that he was instructed to go there and get and carry to Cotton Valley he decided to go to his home and get his breakfast and was on his way there to do so and concluded to deviate therefrom to the extent of taking the negro woman, Leola Bryant, from where he found her to her place of work, before going to his home, does not, we think, alter the fact that he was in the scope of his duty to his employer. (Duffey vs. Hickey, 151 La. 274, 91 So. 733; Glass vs. Wise & McAlpin, 155 La. 477, 99 So. 409.)

In the former case, it was said that where a chauffeur employed to drive an automobile for hire was directed to leave the car on the stand when he went to suipper, but after carrying a passenger to his destination, was many blocks from his stand and only a few blocks from his home and could resume his work considerably earlier by going a few blocks out of his way for his supper, the chauffeur was still within the scope of his employment in doing so.

Neither do we think plaintiffs were negligent in permitting the child to play, unattended, in a public street.

It was said in Westerfield vs. Levis, 43 La. Ann. 63, 9 South. 52, that parents are not obliged to restrain their children within doors at their peril, and that the fact that a child five years old had strayed more than two blocks from home, at play with other children, is not of itself evidence of contributory negligence on the part of the parents.

And in Palermo vs. Orleans Ice Mfg. Co., 130 La. 833, 58 South. 589, 40 L.R.A. (N.S.) 671, it was said that a parent is not negligent in permitting hi,s child, four years of age, to be on the sidewalk adjoining his residence.

In the case at bar the plaintiffs lived in the 2900 block of West Maple street and the accident occurred in the 2800 block, which adjoins the 2900 block on the east.

It was negligence for the driver of the truck to back it in a residential street, where he had almost at the same moment seen small children at play on the sidewalk nearby, without first assuring himself that no one was in the path of the backing truck.

It was said in Pease vs. Gardner, 113 Me. 264, 93 Atlantic 550, that:

“A chauffeur who, on a town street, started to back his automobile without looking to see if anyone was behind him, and ran into a horse and wagon, was negligent, though he did not know of their presence.”

An ordinance of the City .of Shreveport, regulating street traffic, introduced in evidence, provides:

“That vehicles may turn only at street intersections. This turn shall be made beyond the center of the street intersection, and in the direction in which traffic is headed.”

Both Mrs. Roberts and Mrs. Hodges testified that the driver of the truck did not look back 'of his truck before starting it to see if any person was in its path and did not blow the horn or give any other signal of his intention to put the truck in motion. The driver testified otherwise, but the trial court accepted the testimony of Mrs. Roberts and Mrs. Hodges as correct and so do we.

Defendant insists that the allowance of $7,500 for the death of the child, $3,750 to each parent, was excessive, and that if the judgment be sustained the amount of the award should be reduced to $3,000 for both parents, that is $1,500 to each of them.

We do not consider the amount of the award unreasonable. The child was in good health, and bright and lovable. He was only three years and nine months old and therefore had practically his entire life expectancy before him.

In Selser vs. Revol, 152 La. 447, 93 So. 675, $6,000 was allowed for the death of a child nine years old, and in Rousseau vs. Texas & Pacific Ry. Co., 4 La. App. 691. $6,000 was .allowed a father and mother for the death of their son.

After carefully reading the record we have reached the conclusion that the judgment appealed from is correct and accordingly is is. affirmed.