text:
    No. 10,428
    Orleans
    GILYARD v. O’REILLY
    (April 26, 1926, Opinion and Decree)
    (May 24, 1926, Rehearing Refused)
    (June 30, 1926, Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant • — Par. 154.
    The Employer’s Liability Act must be liberally construed.
    2. Louisiana Digest — Master and Servant —Par. 156.
    All laborers employed in the construction of water works are protected by the Act, even those who work by the piece.
    3. Louisiana Digest — Master and Servant —Par. 158.
    When an employee demands payment of his wages from the foreman and a dispute. arises between them concerning the employer’s right of payment in consequence of which a fight takes place between the foreman and an employee in which the- employee is injured, he is entitled to compensation under the Act.
    (ON PETITION FOR REHEARING)
    4. Louisiana Digest — Appeal—Par. 759; Master and Servant — Parr 100 (I).
    The judgment in this case is amended by Making the interest run from date Of each respective payment instead, of from June 1, 1926, and as thus amended the rehearing is refused.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    Action by William Gilyard against J. D. O’Reilly. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Habans and Coleman, of New Orleans, attorneys for plaintiff, appellant.
    E. V. Parham and E. Rightor, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit under the Employers’ Liability Act.

The plaintiff alleged that on June 1, 1925, he was engaged as a laborer for the defendant O’Reilly; that on said date, while in the course of his employment he inquired of Ray Foster, who was employed as foreman for defendant, why he had not been paid his wages in full, that thereupon the said Foster cursed and struck plaintiff, and a fight ensued in which plaintiff’s jaw was broken; that as a result he has been unable to use the same or to engage in any kind of work on account of his weakened condition; that he is entitled to a weekly payment of $12.68 for the period of 100 weeks; that the defendant O’Reilly is insured in the General Accident, Fire and Life _ Assurance Corporation which is also liable to plaintiff.

The defendant insurance company filed an exception of no cause of action and denied any liability. Further answering it averred that the defendant, O’Reilly, contracted with Foster to excavate trenches and lay pipes; that Foster employed and paid all laborers necessary to do the work; that the plaintiff was employed by Foster and paid for piece work; that on the morning of June 1st the plaintiff demanded of Foster payment for work he pretended to have done; that a controversy arose between them as to plaintiff’s right to demand pay for work which plaintiff asserted he had done and which Foster denied; that the plaintiff accused Foster of trying to cheat him, that plaintiff advanced upon Foster in a threatening manner with a raised shovel in his hand; that Foster grabbed the shovel and plaintiff grabbed Foster, threw him down and beat him and broke the spectacles upon his eyes; that they were separated; that the plaintiff continued to threaten Foster when the latter struck plaintiff with his fist twice and knocked him down; that the plaintiff earned only $9.75 a week, and that the fight began before seven o’clock in the morning before plaintiff had started to work.

The defendant O’Reilly denied all the allegations of plaintiff’s petition and reiterated the allegations of the insurance company as to the causes of plaintiff’s injury.

There was judgment for defendants on the ground “that the plaintiff called at the job on the morning in question some time before the work was begun and had a dispute with the foreman * * that the evidence also seems to indicate that the plaintiff had no intention of reporting for work but came to collect the amount he claimed was due him * * that it (the accident) cannot be said to have arisen out of or during the course of plaintiff’s employment”.

The defenses are:

1st That the plaintiff was not employed in a “hazardous occupation” denominated as such by Act 20 of 1914, Sec. 1, S. 2 (a).

2nd That plaintiff’s injury was caused' by his willful intention to' injure his employer and provoking the fight.

. 3rd That the fight occurred before plaintiff started to work. ■- ■

4th. That plaintiff was an independent contractor.

5th That the injury did not arise out of employment.

I

Among the “hazardous occupations” mentioned in the Act are -S. 2 (a): “The construction of * * waterworks, pumping works, * * • engineering- works.”

The defendant O’Reilly had a contract with the Sewerage and Water Board to lay water pipes, and O’Reilly had a subcontract with Ray Foster to excavate the trenches into which the pipes were to be laid and manholes and catch basins; and Ray Foster employed the plaintiff to dig the trenches and excavations. He was to do the work in such manner that it would be “acceptable to the City Engineer and Sewerage and Water Board”. Trapani was inspector for the Sewerage and Water Board and Fred King, civil engineer, acted for O’Reilly as general superintendent. The occupation of O’Reilly was that of construction of “water works”, engaged in “engineering works”. 20 C. J. 1261 Century Dictionary Vo. Engineering. Webster’s New International Dictionary.

It is true that the work done by the plaintiff, that of “digging trenches” was not classed as hazardous, but it was a part of the “water works”.

The law has not divided those works into partly hazardous and partly nonhazardous, neither can we. Under the law the whole of the works, from start to finish, are hazardous. Ás a proof of their hazardous character it is in evidence that a laborer fell into a manhole by which he received injuries.

The law has classed as hazardous the construction of a building. It has made no distinction between the slater on the roof and the painter on the inside.

State vs. Caldwell, 157 La. 103, 97 South. 330.

The Employer’s Liability Act must be liberally construed. Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 South. 677; Byas vs. Hotel Bentley, Inc., 157 La. 1030, 103 South. 303.

II

This defense rests upon Sec. 28 of the Act:

“That no compensation shall be allowed for an injury caused by the injured employee’s willful intention to injure himself or to injure another.”

The testimony does not clearly establish who provoked the fight. Certainly the plaintiff’s demand for payment, even for work he had not done, was no such provocation. Nor was it provocation for him to have advanced upon Foster carrying in his hand the shovel with which he performed his work, unaccompanied with any hostile demonstration. Foster seized the shovel the> plaintiff held in his hand; that constituted the first hostile act and brought on the fight. When the plaintiff had Foster down there is no evidence that he injured him.

III

It is true that the dispute began before seven o’clock, but it continued for some time after seven. It is more than probable that the blow was inflicted upon the plaintiff after seven. But the time is immaterial. Plaintiff was not employed by the hour or day to commence and conclude work at a stated time! He was working by the piece. He could start, when he pleased and quit at his pleasure. The important question is, was he hurt in the course of his employer’s occupation. There is no question that he was. His possession of the shovel was an indication that he had already started in. his employment.

IV

Although plaintiff worked by the piece he was not such an independent contractor as put him beyond the protection of the compensation act. Bell vs. Albert Hanson Lbr. Co., 151 La. 824, 92 South. 350; Burt vs. Davis-Wood Lbr. Co., 157 La. 111, 102 South. 87; Dick vs. Gravel Logging Co., 152 La. 993, 95 South. 99.

In the case of Guderian vs. Sterling, 151 La. 59, 91 South. 546, the court said:

“When a foreman in the performance of his duty is assaulted by a laborer under him, and is injured as a consequence, the injury is considered as caused by an accident within the meaning of Employer’s Liability Acts of the same general nature as ours.”

There is no reason why the reverse of the proposition should not be true.

In Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 South. 677, the court said:

“Where a workman is exposed to some risk manifestly necessitated by his employment he is entitled to his compensation.”

In Ferguson vs. Cady-McFarland, 156 La. 871, 101 South. 248, the court adopted the above language and added:

“An employee like the decedent, who may have an enemy among his fellow employees in the same gang in which he is required to work necessarily comes in contact with such enemy throughout all hours of the day, and is constantly exposed to assault and bodily harm.
“He therefore incurs greater risk necessitated by h'is employmént than a person ordinarily would be subjected to outside of such employment.”

There seems to have been ill feeling between the plaintiff and Foster prior to that time.

In Byas vs. Hotel Bentley, 157 La. 1030, 103 South. 303, where a bell boy who had charge of baggage was killed by a taxicab driver in a dispute over baggage the court held that the Compensation Act entitled the boy’s mother to relief.

The defendants have relied upon the following cases: 127 N. E. 84; 186 N. Y. Supp. 705; 170 id. 677; 121 Atl. 556. The'sé cases may differ from those we quote, but we consider ourselves controlled by the decisions of our own Supreme Court, which is ¿Iso in accord with our own views.

The evidence satisfies us that the plaintiff was getting $3.25 per section and that he could not do more then three sections each week or $9.75 worth, 65% of which is $6.34 per week.

It is therefore ordered that the judgment herein be reversed and avoided; and it is now ordered that there be judgment condemning the defendants in solido to pay to plaintiff the weekly sum of six 34-100 dollars for one hundred weeks with five per cent per annum interest on each weekly payment from June 1, 1925, till paid and all costs of suit.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 10,514
    Orleans
    BROWN v. HART
    (June 21, 1926, Opinion and Decree)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 484.
    It is a well settled rule of practice in civil cases that where delay for the return of an appeal has been extended, and the transcript has not been filed in the Supreme Court on or before the return day as extended the appeal will be dismissed. No days of grace are allowed on an extension of time.
    Appeal from First City Court, Hon. Wm. V. Seeber, Judge.
    Action by F. D. Brown against J. F. Hart. There was judgment for defendant and plaintiff appealed.
    Appeal dismissed.
    Chas. J. Mundy, of New Orleans, attorney for plaintiff, appellant.
    ■ A. J. Ryan, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

On March 26, 1926, judgment was rendered herein in favor of defendant rejecting plaintiff’s demand.

On April 7, 1926, the plaintiff obtained an order for an appeal returnable to this court on April- 17, 1926.

On April 17, 1926-, this court extended the return day to- April 27, 1926.

The transcript was filed in this- court on April 29, 1926.

The appellee has moved to dismiss the appeal “by reason of the failure of the plaintiff and appellant to file said transcript in this Honorable Court on or before April 27, 1926, the extended return day”.

The motion must prevail. 1 La. Dig., p. 514-517.

“Where an extension of time to file a transcript has been granted and the return day fixed, no days of grace are allowed,. State ex rel. Richard vs. Judge of Parish Court of St. Charles, 28 La. Ann. 901.
“Where appellant failed to file the transcript of his appeal until two days after the return day as extended, his appeal was dismissed.” Arata vs. New Orleans Ry. & Light Co., 128 La. 449, 54 South. 938.
“Where the delay for filing the transcript in the Supreme Court was extended to a day certain and the transcript was not filed until the next day, the appeal will be dismissed.” Sampite vs. Deslouche, 135 La. 330, 65 South. 479.

It is a well settled rule of practice in civil cases that where the delay for the return of an appeal has been extended, and the transcript has not been filed in the Supreme Court on or before the return day, the appeal will be dismissed.


text:
    No. 9315
    Orleans
    BARNES v. CITY OF NEW ORLEANS
    (May 10, 1926. Opinion and Decree.)
    (May 24, 1926. Rehearing Refused.)
    (June 30, 1926. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Municipalities — Par. 255, 256.
    The duty of municipal corporations is only to see that its sidewalks are reasonably safe for persons exercising ordinary care and prudence.
    2. Louisiana Digest — Municipalities — Par. 263.
    A person who has passed over a sidewalk daily for several years and is acquainted with its bad condition cannot recover damages against the city if, at 8:40 in the morning, she stumbles and falls, owing to the defective condition of the sidewalk.
    Appeal from the Civil District Court, Division “F”, Hon. Percy Saint, Judge.
    Action by Sadie Barnes against City of New Orleans.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    S. F. Gautier. and Geo. E. Williams,- of New Orleans, attorneys for plaintiff, appellee.
    M. Provosty, Woodville & Woodville and C. E. Torjusen, of New Orleans, attorneys for defendant, appellant.
   OPINION

CLAIBORNE, J.

Plaintiff in walking along the banquette tripped and fell and was injured.

Hence this suit.

The plaintiff alleged that on the morning of April 7, 1920, at 7:40, she was walking on the banquette in front of the property owned by the defendant, Mrs. J. Nelson, on Toulouse street, between David and Carrollton avenue, when she suddenly fell into a large hole on the banquette, which she had not observed on account of the grass which covered it; that she sustained severe injuries about her body, particularly about her feet, one of which was broken and the other sprained; that she suffered greatly and was confined do her home under the treatment of two physicians; that the dangerous condition of said banquette or sidewalk had been of long standing to the knowledge of both defendants by repeated notices and complaints; that at the time of her injury plaintiff had not -seen or observed the hole in the sidewalk, though she was exercising due care, owing to the great amount of grass and weeds covering said sidewalk; that her injury was caused by the failure of defendants to keep the sidewalk in good condition as the law requires them to do. She claimed $2000.00 damages.

• The defendants pleaded no cause of action. The exception was overruled.

Tlie City of New Orleans denied all the allegations of the petition and pleaded contributory negligence on the part of the plaintiff.,

’ There was judgment in favor of Mrs. Nelson rejecting plaintiff’s demand against her, and in favor of plaintiff against the City of New Orleans for $500.00.

The City , of New Orleans has appealed.

Plaintiff is the only witness who testifies as to her fall with any degree of certainty. She says a colored man saw her fall and came to her assistance. But he is dead. Another witness, Mrs. Mary Stevens, says that she was coming out of the grocery store, presumably at the corner, when she saw plaintiff fall and a negro go to her assistance. She was therefore about half a block away, yet plaintiff testified that no one saw her fall except the negro.

For five .days after her fall, plaintiff continued to go to her work, and it was only then that she consulted a doctor. She does not testify that she paid any doctors’ fees, nor that she lost any time from her work at the New Orleans Railway and Light Co. The injuries she complained of, a sprain and a cracked heel, were all latent, not visible to the naked eye, and known only to herself, not even her doctor.

The evidence of plaintiff’s witnesses, Jones, Enright and Muller, is that the sidewalk along Toulouse street, in the block between David and Carrollton avenue, was not paved at all until Brooks’ property was reached in 1920 at the corner of Carrollton avenue. The remaining testimony leaves us under the impression that the only improvement over the dirt itself on the banquette consisted of slabs of stone or cement thrown upon the ground. Of course, the city is not liable for the condition of such a sidewalk which is not paved.

But the city pleaded contributory negli- ! gence. In that, defense we think she has j succeeded. The accident occurred, accord-I ing to plaintiff’s testimony, at about ¡8:40 A.M. on a dry day. She had lived on ! Toulouse street, near David, for several ; years. Every day she walked up and down ; that street going to her work and returning; she saw and knew the condition of i that' sidewalk; as she walked that morning, if there was a hole one foot deep she could have seen it had she been as • careful as the condition of the sidewalk, as ■ she described it, required. Half a dozen witnesses, all her own, testify to the delapidated condition of that sidewalk.

“The duty of a municipal corporation is only to see that the sidewalks are safe for persons exercising ordinary care and prudence. * * * One not exercising ordinary care and prudence is guilty of contributory negligence and cannot recover for injuries received in an accident which might have been avoided by their exercise.”

Peetz vs. R. R., 42 La. Ann. 54, 7 South. 688.

Blume vs. City of New Orleans, 104 La. 345, 29 South. 106.

Goodwyn vs. City of Shreveport, 134 La. 820, 64 South. 762.

Chaffraix & Agar vs. Lafitte & Company, 30 La. Ann. 630.

Shidet vs. Jules Dreyfuss Company, 50 La. Ann. 280, 23 South. 837.

Goldman vs. Goldman, 51 La. Ann. 761, 25 South. 555.

Tatje vs. Frawley, 52 La. Ann. 884, 27 South. 339.

Burke vs. Tricali, 124 La. 774, 20 South. 710.

A distinction must be made between accidents at night, quoted in plaintiff’s brief, and those happening in daytime.

Plaintiff says she could not see the broken pavement nor the hole in the ground on account of the grass and weeds growing over it three feet high. This court will take judicial cognizance of the fact that in April vegetation has not yet acquired that growth, as she had been walking upon the sidewalk, year in and year out, for several years prior to the accident she was sufficiently acquainted with its condition during all seasons. If that side of Toulouse street was bad she could have taken the other side. When two roads, one with and the other without danger, are open to plaintiff and she chooses the former and is hurt, she cannot recover damages.

Johnson vs. Canal & Claiborne R. R. Co., 27 La. Ann. 53.

Settoon vs. Texas & Pacific Railway Company, 48 La. Ann. 807, 19 South. 759.

Fils vs. Iberia, St. M. & E. R. R. Co., 145 La. 544, 82 South. 697.

A plaintiff himself guilty of negligence cannot recover.

Borell vs. Cumberland Telegraph & Telephone Company, 133 La. 630, 63 South. 247.

There is nothing in the record to show that the city authorities were made acquainted, prior to the accident, with the conditions of the sidewalk, except the testimony of the plaintiff herself.

She says she telephoned to the City Hall and asked for Mayor Behrman; she received an answer, but she does not know from whom; she was told Mayor Behrman could not be seen. She complained rather of the grass than of the pavement. Of course, it was necessary that her communication would have reached some official charged with the duty of making repairs to sidewalks. A notice to a porter would not have been sufficient. Weinhardt vs. City of New Orleans, 125 La. 351, 51 South. 286. She did not notify either of the defendants after her accident. She says she fell April 7, 1920, and this suit was filed only on April 5, 1921, on the eve of prescription. See Wiltz vs. City, 2 La. App. 444.

It is therefore ordered that the judgment herein be reversed, and it is now ordered that there be judgment in favor of the City of New Orleans rejecting plaintiff’s demand at her cost in both courts.


text:
    No. 10,522.
    Orleans
    SHALL v. GORDON
    (June 21, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625,630.
    The judgment of a trial court upon a question of fact will be reversed when it appears to this court manifestly erro- ' neous.

      Appeal from First City Court. Hon: W. Alexander Balms, Judge.
    Action by H. M. Shall against Robert Gordon.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Ed. J. De Verges, of New Orleans, attorney for plaintiff, appellant.
    John Wagner and J. C. O’Connor, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

Plaintiff claims $113.10 as the price of milk sold and delivered to No. 826 Carrollton avenue from March 25, 1923, to April 6, 1924, at the rate of one quart per day.

The answer is a general denial.-

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

Plaintiff has appealed.

During March 25, 1923, to April 6, 1924, defendant lived at 826 Carrollton avenue and was occupied as a tailor at No. - Oak street; he was married and had four children; his wife died in May, 1924; she went to Hotel Dieu six months before she died; she was sick before she went there; defendant’s mother-in-law, on Magnolia street, took the children at the time his wife went to the hospital; before that time an old lady, Sarah Neuhauser, took care of the children at his home; she is now in Julius Weiss Home; defendant never ordered milk from the plaintiff, and did not know that he furnished any at his house; he received a bill from plaintiff while his wife was unconscious; he did not know of it; there was a young couple living at his house who stayed over a year with him, while his wife was at home and while she was in the hospital; they did not board with him, they only oectu pied a room and ate out in the mornings; they went out early in the morning.

Being asked: “Do you also swear that this old lady that had charge of the house did not get the milk for your children?” the defendant answers: “Not that I know of.”

He further testifies that he bought milk on Burthe street at the grocery only for coffee; that they used condensed milk; that he did not feed his children on cows’ milk, and that he left his home at 7 A.M.

The plaintiff testified that he got an order over the telephone from Mr. Gordon on Oak street; that he did not deliver the milk to defendant personally but to an old lady at the house; that they stuck the' bill each month under the bottles, except the last one, when he went around and presented the bill to the defendant himself, who said that he never got “all this milk, it was a lady in the house”, the plaintiff never saw anyone else at the house.

Gus Washington is a chauffeur; he says he delivered the milk at 826 Carrollton avenue; he left the bills there monthly under the bottles; the old settled lady nursing the small children would be there every morning to receive the milk; “she would raise sand when they were late”.

James Grainger testifies: He was delivering milk driving the truck for plaintiff in 1923 and 1924; he delivered milk to defendant’s place, 826 Carrollton avenue; he gave it to an old lady, Mrs. Neuhauser, but met Mrs. Gordon several times and also saw the defendant there; Mrs. Gordon told him she wanted the milk for the baby; he is not working for plaintiff now; he gave the milk to Mrs. Neuhauser by the back door, thought sometimes to Mrs. Gordon; she was a young woman between 23 and 30, kind of heavy, weighing about 145 to 165 pounds.

Mrs. Sarah Neuhauser is Mrs. Gordon’s aunt; she has been an inmate of the Old Home for two years; she slept at defendant’s house; she never got any milk while there; she got only one bottle while she lived there; they put it on the side step on the gallery; she did not see the man who delivered it; she never saw Washington or Granger before; she did not receive milk from the milk man. But she does not remember how long she lived at defendant’s house, nor in what month she went to the house, nor when Mrs. Gordon went there, nor how long she was there, nor when she died, nor for whom the milk was; she has “forgotten” what sort of built lady Mrs. Gordon was; she does not know whether “anybody was living in that house besides Mr. Gordon”; she finally concludes by saying: “I don’t remember anything.”

The defendant was shown three checks, one dated March 6, 1923, for $9.22, another dated April 14, 1923, for $10.23, and a third dated May 11, 1923, for $10.26, all to the order of P. J. Bordes; he said he was the milk man and they represented payments on milk all during that period of time; these checks were written and signed by his wife; she did all the buying for the house; he cannot read English; his wife signed all business checks and made deposits in her name and in his; he left the management of the house to her; anything she bought in connection with the house he agreed to; she bought everything, and he knew he had to pay for it; she did not ask him whether it was all right or not; when Shall came to see him, he told him he did not know anything about the bill, and if he owed him he would not have to come to court.

The plaintiff testified that he went to the Old Home to see Mrs. Neuhauser. She said to him that she put the milk upon the table and Mrs. Gordon got it; that he continued over a year without making a demand because there was nobody there but the old lady, Neuhauser, and she (Mrs. Gordon) being sick, he left the bill run; when he called at the residence he was told that Mrs. Gordon was sick and he could not see her.

We have thus labored through these forty-six pages of testimony with a purpose of arriving at the truth of this transaction.

We have arrived at the conclusion that the trial judge erred in his judgment.

We remain convinced that the defendant’s wife ordered the milk; that it was delivered at defendant’s house; that it was received by Mrs. Neuhauser as his servant, and that it was consumed by defendant’s wife and four children. The plaintiff testified that the milk was ordered by Mr. or Mrs. Gordon; but that is not important; he, and Washington, and Granger testify that they delivered the milk to Mrs. Neuhauser or to Mrs. Gordon; Mrs. Neuhauser had charge of defendant’s-, four children. At the time of the trial Mrs. Gordon was dead and could not testify. Mr. Gordon testified that he did not order the milk. That may be true. But he testified that he, in common with many other husbands, left the management of the domestic affairs to his wife, and it is possible that he knew nothing of his wife’s action in the matter. But the fact is that this milk was delivered to a servant in defendant’s employ and used for his family. Mrs. Neuhauser denied it upon the stand but admits it in a private interview. The worst that can be said of her testimony is that it is not reliable.

Then the testimony of plaintiff, of Washington and Granger, must prevail. But it is said that the milk may have been for a couple who- lived in defendant’s house. Neither plaintiff nor his two witnesses, nor any other witness, ever saw either one of those lodgers. In order to avoid the damaging presumption caused by their absence from the witness stand, the defendant testified that he was not sure of their name, though they were his tenants for over a .year, and that he had heard that they left for Canada in June, 1924.

The defendant swears that he bought no milk, or only a small quantity for coffee, that he did not feed his children on cow’s milk, but on condensed milk. Yet he produces three checks dated March, 1923, for $9.22; April, 1923, for $10.23, and May 11, 1923, for $10.26, to the order of P. J. Bordes, a well-known milkman, “representing payments on milk”. These checks are all written by his wife. They prove that his wife had the administration of domestic affairs and that his household used milk in the exact quantity claimed by plaintiff.

They also show that they quit Bordes after April, 1923, and engaged the plaintiff immediately after.

The reason of the change was probably because 'plaintiff’s dairy was “operated under the supervision of the N. O. Pure Milk Commission”, and perhaps Bordes’ was not.

Plaintiff claims for milk delivered after March 25, 1923, after the payments to Bordes.

Defendant has not proven that he purchased milk from any other than plaintiff after Bordes’ bill.

The only suspicious circumstance about plaintiff’s claim was his delay in demanding payment. His own testimony and the facts of this case explain that delay.

At the time plaintiff began serving milk at the defendant’s home, his wife was already sick. Six months afterwards . she was taken to the hospital. When plaintiff demanded payment at home he was told that defendant’s wife was sick. This condition continued until a few dáys prior to her death when plaintiff called at defendant’s establishment. She was then “unconscious”, too ill to speak, or for plaintiff to press payment.

We therefore conclude that plaintiff’s claim is established.

It is therefore ordered that the judgment appealed from be reversed and set aside. It is now ordered that the defendant, Robert Gordon, be condemned to pay to Hugh Milton Shall, the sum of one hundred and thirteen and 10-100 dollars, with five per cent per annum interest from June 19, 1925, till paid, and all costs of suit.


text:
    No. 10,456
    Orleans
    CHAMBERS v. HINGLE
    (May 24, 1926. Opinion and Decree.)
    (June 7, 1926. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Landlord and Tenant —Par. 29, 35, 64.
    It is the duty of a lessee to surrender the possession of leased premises to the lessor at the expiration of the lease. This duty is not met when the lessee himself moves out of the leased premises but leaves a sublessee in possession of part of the premises.
    2. Louisiana Digest — Landlord and Tenant —Par. 74, 80.
    The lessee continues liable for the whole rent until he delivers possession of the whole of the premises.
    Appeal from First City Court. Hon. W. V. Seeber, Judge.
    Action by Loan J. Chambers against Norwood N, Hingle.
    There was judgment for plaintiff and defendant appealed. »
    Judgment affirmed.
    J. B. Rosser, Jr., of New Orleans, attorney for plaintiff, appellee.
    E. L. Bordelon and L. R. Hoover, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for rent.

The plaintiff alleged that in September, 1924, he leased to the defendant, Hingle, the property, 1915-17 Melpomene street, for twelve months commencing October 1, 1924, and ending September 30, 1925, for the price of $72.50 per month, payable on the first of every month, that although said' lease ended on September 30, 1925, the said Hingle failed to deliver possession of said premises to plaintiff and continued to occupy the same through himself and sub-tenants, from October 1 to December 10, 1925, date of filing of this suit, for which he owes plaintiff rent at the rate of $2.41 per day, or $171.11, and $2.41 for every subsequent day until he delivers possession.

Defendant pleaded a general denial; he alleged that he did give up the possession of the leased premises at the expiration of the lease; that on September 30, 1925, he vacated said premises and that he has never been in possession of the same or through anyone over whom he had control.

There was judgment for plaintiff and the defendant has appealed.

The evidence establishes with absolute certainty that the defendant leased from plaintiff the property, 1915-17 Melpomene street, for a period expiring September 30, 1925, that during the lease Hingle sublet to one Bailey the upper floor of the building; that at the expiration of the lease Hingle moved out, but left Bailey in possession and also left a lot of old material on the premises and did not deliver the keys of the building to the plaintiff.

Article C. C. 1817 provides:

“If, after the termination of a lease, the lessee continues in possession and the lessor be inactive and silent, a complete mutual obligation for continuing the lease is created by the act of occupancy of the tenant on the one side and the inaction and silence of the lessor on the other.” Also C. C. 1816-2688-2682; Marmiche vs. Roumieu, 11 La. Ann. 477; 8 Orl. App. 123; Armstrong vs. Bach, 20 La. Ann. 190; Bowles vs. Lyon, 6 Rob. 262; 12 Orl. App. 219.

The fact that the defendant notified the plaintiff that he would vacate the premises at the end of his lease does not relieve him from payment of the rent if. he continued to occupy the premises himself or through others.

In case of Briede vs. McClellan, No. 7599, Tessier Digest, p. 99, this court said:

“It is the duty of a lessee to surrender possession of the leased premises to the lessor on the very day of the expiration of the lease. This duty is not met by delivering the keys of the leased premises to one not authorized by the lessor to receive them and without his knowledge.” Woples vs. City of New Orleans, 28 La. Ann. 688; Troger Co. vs. Cavaroc Co., 124 La. 611, 50 South. 598.

The judgment appealed from is correct, and it is therefore affirmed.


author: WESTERFIELD, J.

text:
    No. 10,434
    Orleans
    LUCA BORRELLO v. ROHRER
    (May 24, 1926. Opinion and Decree.)

      (Syllabus by the Court)
    I. Louisiana Digest — Automobiles — Par. 4 (b).
    The automobile which first enters a street intersection is entitled to proceed. Other cars approaching on intersecting streets should delay their progress so as to allow the first arrival to pass in safety. Failure to do so is negligence.
    Appeal from. First City Court, Section “C”. Hon. Wm. Y. Seeber, Judge.
    Action by Luca Borrello against Edward J. Rohrer.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. Gardner and C. E. Strauch, of New Orleans, attorneys for plaintiff, appellee.
    B. N. Miller, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, the owner of a Nash automobile, brings this suit against defendant, the owner of a Ford Sedan, for damages alleged to have been inflicted upon the Nash by the Ford as a result of a collision on May 17, 1925, at the intersection of Alexander and Palmyra streets in this city.

Plaintiff claims $150.70 and was awarded a judgment in the sum of $100.00. Defendant alone has appealed.

The Nash car was coming down Alexander street in the direction of Canal street and the Ford out Palmyra in the direction of the lake. In argument and in brief there was much discussion of the right-of-way but we do not find that the city ordinance was introduced in evidence, consequently, we cannot consider which car had the right of way. We have reached the conclusion that the Ford was to blame for the accident. To begin with, the Nash was hit on its right side near the front door by the Ford radiator and front fender. The evidence on both sides indicates that the Nash was well into the intersection before the Ford entered it. The Nash was knocked against the curbing with such force as to break its left rear wheel, suggesting excessive speed on the part of the Ford, which is much the lighter car. It is true the Ford was uninjured, but it is shown to have been equipped with a bumper which protects its forward end which struck the Nash.

For the reasons assigned the judgment appealed from is affirmed.


author: REYNOLDS, J.

text:
    No. 2514
    Second Circuit
    STEWART v. FITZGERALD PLUMBING AND HEATING COMPANY
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 159, 160 (e).
    In a suit to modify a judgment under the Employers’ Liability Act, awarding compensation of $18.00 a week during disability, not exceeding 400 weeks, as for permanent total disability, where the evidence shows that the injured employee’s condition has improved to one of partial disability, and that he is now able to earn $35.00 a week as against $55.00 a week before he was injured, the compensation will be reduced from $18.00 a week to $12.00 a week, and the period during which it 'shall be paid, from not exceeding 400 weeks to not exceeding 300 weeks; and the employer will be allowed to deduct out of future installments payable under the judgment the difference of $6.00 per week excess payment dating from the time of the filing of this suit for modification.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by Charles A. Stewart against Fitzgerald Plumbing & Heating Company. There was judgment for plaintiff and defendant appealed.

      Judgment reversed.
    Long and Me S ween, of Shreveport, attorneys for plaintiff, appellee.
    J. S. Atkinson and Alex F. Smith, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

As plaintiff in suit No. 1629 on the docket of this court Charles A. Stewart recovered judgment against Fitzgerald Plumbing & Heating Company for compensation at the rate of $18.00 per week during disability for not exceeding 400 weeks as for permanent total disability. At the time of his injury he was earning $55.00 a week.

The defendant in that suit, Fitzgerald Plumbing & Heating Company, brings this action to have it decreed that the plaintiff’s disability has totally ceased and his right to compensation terminated, or, in the alternati.ve, to have the compensation payable reduced to $12.00 a week and the period during which it is payable reduced from 400 weeks to 300 weeks, and for credit on future installments payable under the judgment for all sums in excess of $12.00 a week paid plaintiff since October 15, 1922, and on all sums in excess of $14.10 a week between June 22, 1922, and October 15, 1922.

The defendant in this suit, plaintiff in the ' original suit, Charles A. Fitzgerald, denied that there had been any change in his condition since the judgment was rendered and denied the right of the Fitzgerald Plumbing & Heating Company to have the judgment modified.

On these issues the case was tried and there was judgment rejecting the demand of tie Fitzgerald Plumbing & Heating Company and it has appealed.

OPINION

The present suit was instituted on March 13, 1925. The evidence shows that the plaintiff in the original suit, defendant in this, Charles A. Stewart, was, at the time of the trial, in the same physical condition as he was at the time of the trial of the first suit.

Charles A. Stewart testified,' page 82:

“Q. What is your physical condition now as to what — compared to what it was during the trial here .the last time — has there been any material improvement?
“A. No, sir, I cannot see any improvement from the time I was crippled up to the present time.
“Q. Do you experience any pain and suffering from your work now?
“A. Yes, sir.
“Q. Just describe it to the court, generally.
“A. Well, if I lift or strain the least bit, it knocks me all out; my liver is down on the intestines, and it will drop further all the time; it almost kills me if I do any straining at all; -in fact, I do' not do any straining; when it comes to the point of stooping down and straining,. I cannot do that; it will not let me do it; others will do the work for me.”

Doctor A. A. Herold testified, page 96:

“Q. . Now, doctor, you have just concluded a physical examination of Mr. Stewart ?
“A. Yes, sir.
“Q. Just state to the court what his present condition is?
“A. I find practically what I did before; he has a tendency to drop down; his stomach and bowels and liver, more or less prolapsed. I find also his heart beats are a little fast; his liver also appears to be somewhat enlarged.”

Under all the evidence in the case we are convinced that Charles A. Stewart’s condition was on the date of the trial of this suit practically the same as it was on the date of the trial of the original suit, and we find no reason to modify the judgment on the ground of improvement in his physical condition.

But the evidence clearly shows that at the time of the trial of this suit and for some time prior thereto Charles A. Stewart was able to earn and in fact was earning-a wage of $35.00 a week. At the time he was injured he was earning a wage of $55.00 a week, and therefore since the filing of this suit, March 13, 1925, his compensation should have been at the rate of $12.00 a week instead of $18.00 a week, or 60% of the difference between the wages be was earning at the time of the accident and the wages he was earning when this :ase was tried.

Since March 13, 1925, Fitzgerald Plumbing & Heating Company has been paying Charles A. Stewart compensation of $18.00 a week when it should have been' paying bim compensation at the rate of $12.00 a week. It is therefore entitled to credit on future payments for the excess of $6.00 on aach payment dating from March 13, 1925, with legal interest on each such overpayment from the date paid. It is also enti:led to have the period during which payments under the judgment are to continue reduced from four- hundred weeks, begin-ling October 21, 1921, to three hundred weeks, beginning October 21, 1921.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, and it is now ordered, adjudged md decreed that there be judgment in favor of Fitzgerald Plumbing & Heating Company and against Charles A. Stewart; ;hat the judgment rendered in favor of Charles A. Stewart and against Fitzgerald Clumbing & Heating Company, No.- 1629 on the docket of this court, be modified by reducing the compensation therein ordered paid from $18.00 a week to $12.00 a week as and from March 13, 1925, and by reducing the period over which said compensation shall be paid from 400 weeks, dating from October 21, 1921, to 300 weeks, dating from October 21, 1921.

It is further ordered, adjudged and decreed Fitzgerald Plumbing & Heating Company have credit for and deduct from future installments of compensation payable under the judgment all sums in excess of $12.00 a week paid by it to Charles A. Stewart as compensation under said judgment from and after March 13, 1925, with legal interest on each such excess payment; said deduction to be taken out of the next installments falling due under said judgment.

It is further ordered, adjudged and decreed that Charles A. Stewart pay all costs of this suit.


text:
    No. 1900
    Second Circuit
    PEERLESS WELDING & MACHINE COMPANY v. PEOPLE’S LIGHT & POWER COMPANY
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    Where the issue is one of fact, the appellate court will give much weight to the finding of the trial judge, and will not disturb that finding unless clearly erroneous.
    Brenard Mfg. Co. vs. Allen, 1 La. App. 44.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    Action by Peerless Welding & Machine Company against Peoples Light & Power Company. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Scheen and Blanchard, of Shreveport, attorneys for plaintiff, appellee.
    Crain, Benoit and Jackson, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sued defendant for $1655.50 for work done and material furnished in welding and other machine work.

Defendant denied liability, and alleged that the work was done and material furnished under contract for the price of $300.00 and under agreement that it was not to be paid for unless after ninety days’ trial it was found satisfactory and approved by defendant, and that the work proved defective and entirely worthless. And defendant reconvened against plaintiff for $4000.00 as the value of an engine alleged to have been rendered worthless by reason of plaintiff’s alleged 'defective work.

There was judgment in favor of plaintiff for $816.00 and defendant appealed.

OPINION

The question to be decided in this ■ case is one of fact, whether the work was done without a special contract or whether it was done for an agreed price of $300.00 to be paid only in the event that after ninety days’ trial it was found to be satisfactory by defendant. On this question of fact three witnesses for plaintiff, R. L. Efurd, E. C. Efurd, and R. E. Ferguson, testified that there was no contract, and two witnesses for defendant, H. S. Levine and M. L. Pizer, testified that there was.

R. L. Efurd testified, page 3:

“Q. Did you have any contract as to the work to be done — as to the price of the work to be done?
“A. No, sir, there wasn’t no estimated price at all.
“Q. What did he tell you to do?
“A. He told us — to weld the shaft and wheel and put it in good shape so he could use it.
“Q. Did you do that?
“A. We did.”

E. C. Efurd testified, page 24:

“Q. Well, after you got to Oil City what did you find?
“A. Well, we found that it was too big a job for use to undertake to do there and that he had to have some machine work done on it; so we advised him to bring it into Shreveport where we could handle it better.
“Q. Was it brought to Shreveport?
“A. ,Yes, sir.
“Q. Who did that?
“A. He sent it by the Caddo transfer.
“Q. Who did?
“A. Mr. Levine sent it in by the Caddc transfer.
“Q. After you saw that — or during tha1 time did you make any contract with Mr Levine as to the price it would cost?
“A. No, sir, there wasn’t, any contract price made.
“Q. On what basis were you to make £ charge then?
“A. Well, we charged by the hour, you know, and the material we used; and that is what we told him — that that was the way we would rather do the job — to make a price that way would be kind of unhandy for both of us.”

R. E. Ferguson testified, page 38:

“Q. Did you have any contract with Mr. Lavigne as to what the price would be for this?
“A. No, sir, none whatever * *

H. S. Lavigne, testified, pages 55 and 56:

“Q. You can explain to the court what conversation there was between you and Mr. Efurd.
“A. I told Mr. Efurd that I had asked the engineer and the engineer says ‘I will quit unless you get a good one and not try to weld’. He says, ‘the wheel is liable to come off and kill people and wreck the plant’. He says, ‘I won’t stay here’. So I told Mr. Efurd, and he says T will talk with him’. I took him over to this engineer and they talked about it and I was right there and the engineer told him just what he had told me, and he says: ‘Well, you come in tomorrow I have catalogues and I will prove it up’. So I didn’t say anything. I said ‘I will think it over, I don’t know but what I better purchase another engine’. I told him that I had hard luck and that if he was to do the work I wouldn’t take any gamble. He says, T will do the work, I will put it in and it will operate perfect — the engine will' operate perfect and I will wait two months— three months’ he says ‘for our pay’. I says, ‘are you authorized to make an offer of, that kind’ he says ‘absolutely’. So I says ‘well, I will call and think it over’. I wired east for another crank and they wasn’t able to give to give me a crank under three months and they costs about nine hundred ($900.00) dollars each. I had previously purchased a crank and I was thoroughly disgusted. So I called at his plant — I was distracted and he showed me catalogues and went into the matter again. So I said ‘I am not able to get another right of way the people out there are roaring for a plant’. And it was right — it was August ór July and I was in a sweat. So I said ‘all right, if you will agree to weld it and take all the blame and make me a price on it I will agree’. He says ‘well’, he says ‘how much did you pay Mr. Cunningham’? I says 1 don’t intend to pay him anything because the weld didn’t hold’; ‘Well’ he says ‘how much was the price’? I told him four hundred ($400.00) dollars. So he says ‘well, I will take it for three hundred ($300.00) dollars’. Well, that was agreed upon. I says to him to make the agreement so he promised that he would. I waited about a week and I didn’t get any and I asked again; then I thought it would be wisdom to take Mr. Pitzer out with me to have him corroborate that agreement, and I took him out there for that purpose and I told him ‘Mr. Pizer is here to listen to that offer’.”

M. L. Pizer testified, page 108:

“Mr. Levine brought me out to verify the contract he had with Mr. Efurd or the Peerless Welding Company and said he would ask him for a letter that he would guarantee the work and they hadn’t sent the letter and he wanted to — he wanted him to repeat the same agreement before me and the engineer was with us — Mr. Gills and stated he would fix this shaft— make it just as good as new and guarantee the job for three hundred dollars and Mr. Levine was to try it out for ninety days and if it proved satisfactory within that time Mr. Levine was to pay him, but he was not to make him any payment until it ran ninety days satisfactory.”
“Q. There was no payment to be made until it ran ninety days?
“A. Yes, sir, and Mr. Levine told him he would run it sixty days and if it ran satisfactory he would pay him.
“Q. All parties agreed to the contract?
“A. Yes.”

The district judge who heard the witnesess testify and observed their manner of testifying decided the question of fact in favor of the plaintiff. We have carefully read the 142 pages of testimony in the record. It would serve no useful purpose to quote further from it. The evidence convinces us that the finding of the district judge was correct.

. The fact that plaintiff was only given judgment for $816.00 on a demand for $1656.50 is owing to the fact that defendant claimed that the second welding of the shaft was not to be charged for and that $149.00 of the amount charged on the account sued on should not be allowed for 'the reason that it was included by plaintiff in á charge for machine work that defendant had paid for through George An■derson and for which amount plaintiff had sued George Anderson and obtained judg.ment against him therefor. These contentions of the defendant were allowed by the district judge, and as plaintiff has not asked for an amendment of the judgment it is not necessary to go further into the details of these transactions.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.


text:
    No. 2706
    Second Circuit
    HUNTER v. JOHNS, ET AL.
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 156, 160 (a).
    Where a truck driver finds hauling to be • done, and solicits the owner of a truck • to undertake the work and employ him to do it, and the proposal is refused, but the truck driver is permitted to use the truck for the purpose under an agreement whereby he retains twenty-five per cent and pays the owner seventy-five per cent of the amount he receives for the work, less the cost of oil and gasoline consumed in the enterprise, the truck driver is not an employee of the owner of the truck; their relations are rather that of lessor and lessee of the truck, and the truck driver is not entitled to recover compensation from the owner of the truck for injuries sustained by him in the course of the work.
    Brown vs. Weber-King Lumber Company, 3 La. App. 596.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon E. P. Mills, Judge.
    Action by W. B. Hunter against M. E Johns, et al. There was judgment foi defendant and plaintiff appealed.
    Judgment affirmed.
    Long and McSween, of Shreveport, attor neys for plaintiff, appellant.
    Alex F. Smith and H. Y. Booth, o: Shreveport, attorneys for defendants, ap pellees.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit unde; the Employers’ Liability Act by W. B. Hun ter against C. C. Woodring, M. E. Johns and H. C. Bellows, to recover compensatioi for injuries alleged to have been suffere( by plaintiff while driving a motor truel from his home to his work.

All three defendants denied liability.

The case was tried and there was judg ment rejecting plaintiff’s demands and h has appealed.

OPINION

On the trial of the case the plaintiff dismissed his suit as against M. E. Jones, and in his brief in this court he advances no reason why judgment should be rendered against H. C. Bellows.

Plaintiff’s claim against E. C. Woodring turns on the question of whether or not he was at the time- of the accident to hjm an employee of Woodring.

Plaintiff swears that Woodring employed him to drive a motor truck at a. stipulated wage of $3.00 per day, but he failed to substantiate this contention. ■ The evidence convinces us that no such agreement was entered into.

C. C. Woodring, referring to plaintiff, testified, pages 40, 41, 42, 43, 54:

“I was sick, as I have said before, and I got tired of standing around the fire, so I walked back to the car and he (plaintiff) said, ‘well, do you want the work’? He said, ‘Mr. Carmichael has said that he could use a ‘Ford truck’, and I says T don’t want to take the work on because I am sick and can’t attend to it and see that everything goes on all right’, but ■ I said ‘if you want to take the car and take the chances on it, you can do it’. And I said ‘if you want to take my Ford and keep up the repairs on it and do the work, and give me 75% of what you make on it, or what is taken in, it will be all right; provided that before it is divided you take out and pay for the gas and oil, and I will keep the truck up and you give me 75% of what you take in and you take 25% for doing the work; and he said, ‘All right’, and Mr. Carmichael and all the others heard this conversation.”
* * *
“Q. And Mr. Hunter had already had a conversation with Mr. Carmichael, or had gone in to talk to Mr. Carmichael, before this agreement was made?
“A. Yes, sir.
. “Q. And Mr. Hunter was to pay alb of .the .expenses of the .oil and. gas out of the dollar an hour that he was to get ■ and then he was to give you 75% of what was left?
. “A. No, sir, he was to-give me the gross receipts of the — he was to take 25% and. I was to stand the expenses of the truck, and I was to get 75%.
* * »
“Q. Then he was the.first one that im- , portuned Mr. Carmichael to do this work?
“A. He was the first one that spoke of it, and most of the talking was done between him and Mr. Carmichael. . .
* * *
“Q. Mr. Woodring, as I understand you, you had no contract with Mr. Hunter to pay him so much pgr hour or so much per day?
“A. No, sir; I was going to give him 25% of the gross amount that was taken in with the truck.
“Q. You were to share in the profits with him, if any there were made on the truck?
“A. Sir?
“Q. You were to share in the profits made on the work on a certain percentage basis?
“A. Yes, sir, that is the way. I ■ was going to give him 25% of the gross proceeds.
* * *
“Q. Did he talk to Mr. Carmichael any before he came back to where you were?
“A. He talked to him; I don’t know what he said, though.
“Q. Then after he came out there and all three of you were present, was it your understanding then that Mr. Carmichael was to pay a dollar ah hour for the truck while it was working and Mr. Hunter would get 25% of what the truck made while it was working?
“A. Yes, sir.
* * *
“Q. That bargain was agreeable to you?
“A. Well, the bargain that he made with Mr. Carmichael I consented to, of course, to let him have the truck on that 25% .and 75% basis. I .considered that Mr. Hunter .and I were partners ip the thing.”

P. C. .Carmichael testified, pages 63, 64, 65:

“Q. Did you have any conversation at that time with Mr. Woodring?
“A. Yes, I talked with Mr. Hunter and Mr. Woodring both, and told them if they wanted .to put ,the truck in there for a dollar an hour, for the actual time it worked, we could possibly use it if it wasn’t too wet.
* * *
“Q. How did they agree to work it?
“A. I never did know, but they started —He wanted to put a man in' there on straight time, but he said he didn’t know whether the truck was going to work or not, nor whether he could make the time with it, and then I think they had some agreement about a percentage basis.
“Q. That is what I was coming to. Did you hear them say anything about working on a percentage basis?
“A. Yes, sir, there was some kind of a percentage basis talked about.
“Q. You did hear them say something about a percentage basis?
“A. Yes, sir, Woodring told me that he wouldn’t put the truck in there with a man on it if I wouldn’t pay him by the day for it, and I told him that I couldn’t do that; that I would just pay for the actual time that it worked. And him and Mr. Hunter were speaking about some other way to work it on a percentage basis, or some other way.
* * .*
“Q. Where did they g.o from there?
“A. He said that he was sick and -that he was going home and go to bed, and for me to keep actual .time that the truck was working and to pay Mr. Hunter for it.”

Alfred Willis testified, pages 69 and 70:

“Q. You mean that you told Mr. Wood-ring that he couldn’t make any money?
“A. Yes, sir. And then he said that he would put the driver on a percentage basis and work everything on percentage.
“Q. Was Mr. Hunter there?
“A. We were all standing right there; Mr. Carmichael, Mr. Woodring, Mr. Hunter, and my brother and several others.”

From all the evidence we are convinced that at the time of the accident to plain tiff he was not an employee of C. C. Wood-ring. Plaintiff was not looking to him for wages, and under the arrangement between them under no circumstances could Wood-ring owe Hunter any amount as wages. Hunter was looking to Carmichael for pay for his work and if he was working for any one it was for Carmichael. His relations with Woodring was that of lessee of the truck rather than that of an employee of Woodring.

Under all the evidence in the case we are satisfied that the judgment of the lower court is correct and it is accordingly affirmed.


text:
    No. 10,502
    Orleans
    THE ITEM COMPANY, LTD., v. WORMINGTON MACHINERY POWER & EQUIPMENT CO., INC.
    (June 21, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 262.
    Evidence tending to establish a contemporaneous verbal agreement is inadmissible to vary or contradict the terms of a written contract.
    Appeal from the First City Court of New Orleans, Hon. Val J. Stentz, Judge.
    Action by The Item Company, Ltd., against Wormington Machinery Power & Equipment Company, Inc. There was judgment for plaintiff as prayed for and defendant appealed.
    Judgment affirmed.
    Blouin and Deutsch, of New Orleans', attorneys for plaintiff, appellee.
    H. M. Ansley, of New Orleans, attorney for' defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues on a written advertising contract, alleging, performance, and claiming the consideration mentioned or $182.00.

Defendant admits the contract, and, finds no fault With the execution of it by plaintiff, but says that by a subsequent verbal agreement certain “write ups” were to* be given defendant’s business' in- addition to the advertising'.

There was judgment for plaintiff as prayed for and defendant has appealed.

There is absolutely no- evidence of á subsequent oral agreement relative to “write ups”. The testimony on this' point- properly admitted over plaintiff’s- objection on the ground that a subsequent oral agreement changing or modifying a written agreement may be proven notwithstanding its effect upon the written contract, all tended to establish a previous or contemporaneous understanding, which, of course, under the parol evidence rule is inadmissible, if its effect be to vary or contradict the terms of a written instrument. The contract sued on, admittedly, contains no reference to “write ups”, whatever that may mean, and, moreover, contains the words “No condition not written in this contract will be recognized”. Under the circumstances, the judgment appealed from must be affirmed.


author: RIGHTOR, J.

text:
    Nos. 9325-9525
    Orleans
    REIMAN MFG. COMPANY, LTD., v. UNION HOMESTEAD ASSN.
    (June 7, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 11, 62.
    An exception of no cause of action should not be sustained, based on the fact that the petition contains a conclusion ’ of law that is in conflict with an- allegation of fact.
    Appeal from the Civil District Court, Division “A”, Hon.- H. C: Cage, Judge. '
    Action by Reiman Manufacturing Company against Union - Homestead Association, et al. There was judgment for defendant and plaintiff appealed.
    .Judgment remanding • case .for further proceedings. .
    H. W. Robinson, of' New Orleans, attorney for plaintiff, appellant.
    Carroll and Carroll, H. G. McCall, A. J. Plough, Farrar, Goldberg, and Dufour,' of New Orleans, attorneys for defendant, appellee.
   RIGHTOR, J.

A married woman desiring to 'make certain improvements on property of record as her separate property, transferred the property in the usual manner to a homestead association as security for a loan on the property. The homestead association entered into a contract for the improvements with a' building contractor, who happened to be the husband of the borrower. A surety company signed the.building bond for the job, required by statute. Plaintiff, supplied material for the repair of the building, and not having been paid, sued all the parties above named, in solido, making various averments) from' which' the plaintiff concluded solidary liability on the part of all of the defendants.

Plaintiff’s averments are somewhat- discursive, possibly inconsistent and to a certain extent against the rule of pleading that forbids duplicity.

The co-defendant Surety' company filed an exception of no cause of action to the petition and this exception was sustained.

Trial was then had on the merits as to the other defendants and judgment went against one of them as prayed for and one other of them was held solidarily liable in costs.

The four defendants were sued in solido. If the ruling sustaining the exception of no cause of action as to the defendant surety company were incorrect, then such exception must first be overruled and the entire case remanded to be proceeded with over again from the date of the overruling of the exception.

The lower court sustained the exception of no cause of action as to the defendant surety company because, whilst the petition, Article VII, alleges:

“That the said .parties required a bond for the faithful performance of the contract, and the payment of all subcontractors, workmen, laborers, mechanics -and furnishers of materials, and the said Union Indemnity Co. executed same; that the said contract was recorded in the Mortgage Office for the Parish of Orleans on the 12th day of October, 1920, in Book 1243, folio 500; and the bond for the same recorded in Book 1236, folio 2423, which bond was in favor of the owner, subcontractor, workmen, laborers, mechanics and furnishers of materials jointly as their interest may appear.”

Yet Article XVII of the same petition alleges:

“That said Union Homestead Association is moreover liable tó petitioner for said claim, because it reconstructed said building directly, without the intervention of a building contractor, said Louis Kaufman being only a sham contractor by collusion with said Union Homestead Association, • and because no building contract with the owner of the building was ever executed and recorded) or bond to said owner exacted and recorded, nor has said owner ever recorded in the Mortgage Office .notice of acceptance of the building as required by law, and that it secreted said building contract and bond from recordation from August 12th to October 12, 1920.”

Under the leading decision of State vs. Hackley, Hume & Joyce, 124 La. 854, 50 South. 772, an allegation of a conclusion of law is no allegation at all. ' Such an allegation neither adds to or takes from the pleading and inferences drawn from specific facts alleged are equally ineffective. Lancaster vs. Dunn, 153 La. 23, 95 South. 385.

Article VII of the petition, therefore, should be held to stand alone for purposes of pleading and as not affected by the conclusions or inferences of Article XVII.

The case is accordingly remanded to be proceeded with according to this opinion.


text:
    No. 9321
    Orleans
    VALCOUR v. THE SIMON HUBIG COMPANY, INC.
    (May 10, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles — Par. 7 (a).
    Where the evidence shows that an eight-year-old boy, in charge of his eleven-year-old sister, suddenly left his sister and darted across the roadway and in front of a motor truck, which ran over and injured him the accident will be attributed to the reckless conduct of the boy and there can be no recovery of damages against the owner of the motor truck.
    Appeal from Section “D" of the Civil District Court, Hon. Porter Parker, Judge.
    Action by George Valcour, for the use and benefit and in behalf of his minor son, George Joseph Valcour, Jr., against The Simon Hubig Company, Inc. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. J. Bonomo, of New Orleans, attorney for plaintiff, appellant.
    Lemle, Moreno and Lemle, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, on behalf of his minor son, George Valcour, Jr., brings this action for damages for physical injuries sustained by his said son as a result of his having been run over by a motor truck operated by an employee of the defendant corporation.

The negligence charged consists of the alleged excessive speed of the truck and want of control by the driver thereof.

The defendant denies all charges of negligence and avers .the accident was unavoidable.

There was judgment for defendant and plaintiff has appealed.

The injured child was a small negro boy eight years old, and, at the time of the accident, was in charge of his sister, who was eleven years old.

The accident occurred at a point where St. Bernard átr'eet, New Orleans street and Claiborne’ Avenue lead into a circular neutral ground With a sidewalk as the circumference’ of the circle'. Defendant’s chauffeur' testified that as he was driving on the roadway which is adjacent to the sidewalk, surrounding the circle, from the direction of the river, toward the lake, the boy suddenly ran across' the roadway, from the direction of New Orleans street, with the evident intention of reaching the sidewalk on the neutral ground; that there was no opportunity to stop his truck, in time to avoid hitting the child, but he applied the brakes and turned to the left, in the direction of, and drove upon the sidewalk in an effort to avoid the child.

The chauffeur corroborated by a defense witness by the name of Samuel Jones, a bystander wholly disinterested, and to a certain extent by a witness for plaintiff by the name of Hazel Joseph who says that when she first saw the child he was so near the truck, that there was not time to shout to him in an effort to warn him of the danger.

On the other hand we have only the testimony of Edna Valcour, the eleven-year-old sister of the injured boy who corroborates defendant’s witness in regard to the boy darting across the street for she says that she was walking with her brother up to the time they reached the corner of Claiborne street but when he was hurt he “had got across” the street and she was still on the opposite sidewalk.

No other Witness for plaintiff saw the accident except Hazel Joseph who as we said supports defendant in an important particular'.

The charge' of excessive speed is not sustained. Only the front wheels passed over the child indicating moderate’ speed as claimed by defendant- but- in any event the causé of the accident was the recklessness of the child in darting across the street in front of the truck. Montfort vs. Schmot, 36 La. Ann. 750.

For the reasons assigned the judgment appealed from is’ affirmed.


author: LECHE, J.

text:
    No. -
    First Circuit
    CANULETTE SHIPBUILDING COMPANY, INC., v. MONDAY, ET AL.
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 355, 361, 375.
    Petition for appeal must be served not only upon the plaintiff but also upon the co-defendant of the party petitioning for the appeal. If not so made the appeal is dismissed.
    Appeal from the Parish of St. Tammany. Hon. Prentiss B. Carter, Judge.
    Action by Canulette Shipbuilding Company, Inc., against Wm. Monday, et al.

      There was judgment tor plaintiff and one defendant appealed.
    Appeal dismissed.
    L. V. Cooley, Jr., of Slidell, attorney for plaintiff, appellee.
    Ellis & Ellis, of Rayville, attorneys for defendant, appellant.
   LECHE, J.

In this ease there are four defendants, three of whom only have applied by petition for an appeal from the judgment rendered by the District Court. They pray for service of citation of appeal upon the plaintiff, but not upon their co-defendant. Service was made as prayed for and their co-defendant is not made a party to the appeal. Plaintiff, upon that ground, moves to dismiss.

The motion should be sustained and the appeal dismissed. (Handlin v. Dodt, 110 La. 938, 34 South. 881), and it is so ordered.


text:
    No. -
    First Circuit
    JACKSON, ET AL., v. LAMB
    (June 5, 1926, Opinion and Decree)

      (Syllabus 6y the Editor.)
    1. Louisiana Digest — Taxation—Par. 281, 283.
    In view of Sections 63 and 64 of Act 170 of 1898 a tax deed made for property sold at tax sale after the tax collector’s notice of .delinquency was returned unclaimed is ,a nullity.
    2. Louisiana Digest — Taxation—Par. -334.
    An assessment and tax sale in .the name of a dead man or woman are null and void.
    Appeal from .the Parish of Jefferson Davis, Hon. Thos. F. Porter, Jr., Judge.
    Action by Modeste Jackson .e.t al. against W. C. Lamb. There was judgment for plaintiffs. Defendant appealed.
    Judgment affirmed.
    R. R. Stone, of Lake Charles, attorney for plaintiff, appellee.
    Modisette and Adams, ,of Jennings, attorneys for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment avoiding the sale of property which he acquired at tax sale on August 12, 1922.

Plaintiffs are the forced heirs of Adam Moss and Mandy Moss, both of whom had died, the former thirty years, and the latter about four years before the present suit was filed. The property had always been assessed in the name of Adam Moss. The taxes were at first paid by Moss and after his death, his widow continued to pay them to the time of her death. For one year thereafter, one of the heirs paid them, but the taxes for the year 1921, for the payment of which the sale was made, remained unpaid. The tax collector’s deed was made in the name of defendant, on the 12th of August, 1922, and was recorded on September 25, 1925. The present suit was filed August 17, 1925, so that there can be no application in this case, of the constitutional prescription of three years.

Plaintiff relies for the nullity of the sale on two grounds, first, that the assessment was null and void‘> for having been made in the name of a dead man, to whom of course, the tax collector was unable to give notice of delinquency, and for having been made for an amount in excess of the taxes, interest and costs.

The evidence shows that both Adam and Mandy Moss were dead when the assessment was made for 1921, and that the tax collector’s notice of delinquency addressed to Adam Moss was returned to him, unclaimed, from the post office. It shows further a charge in the deed, as part of the taxes, interest and costs due on the property, a tax collector’s fee of two dollars and a recorder’s fee, for recording of four dollars. So that the evidence supports the facts on which both grounds of nullity are urged by plaintiffs. ' The law seems according to the authorities cited by plaintiff, equally to support plaintiffs’ position. Wilkerson vs. Wyche, 158 La. 599, 104 South. 381; Succession of Williams vs. Chaplain, 112 La. 1075, 36 South. 859; Jones vs. Curran, 156 La. 1055, 101 South. 415; Carey vs. Cogney, 109 La. 77, 33 South. 89; Sec. 63 Act 170 of 1898; Sec. 64 same Act.

We find no error in the judgment and it is therefore affirmed.


text:
    No. 2646
    Second Circuit
    NOWASKI v. CONTINENTAL FLAT GLASS COMPANY, INC.
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant— Par. 156.
    An employee, entitled to recover compensation under the Employers’ Liability Act, is one receiving personal injury by accident.
    Section 2, paragraph 1, Employers’ Liability Act.
    2. Louisiana Digest — Master and Servant— Par. 154.
    “Accident”, as used in the Employers’ Liability Act, subject to ’ certain exceptions, means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.
    Section 38, Employers’ Liability Act.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. F. X. Ransdell, Judge.
    Action by Frank Nowaski against Continental Flat Glass Company, Inc. There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellee.
    Barnette and Roberts, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This suit was originally instituted by Frank Nowaski, claiming compensation from September 10, 1924, for an accident claimed to have been received by him inhaling and becoming completely penetrated with soda ash in August or September, 1924.

Citation was served June 5, 1925.

August 24, 1925, plaintiff died. His widow, Mrs. Pearl Nowaski, individually and as natural tutrix of her minor children, Frank Nowaski, Jr., and Pearl Louise Nowaski, issue of her marriage with Frank Nowaski, by petition and proper order of court, became plaintiff in tbe suit.

Tbe defendant denied liability.

The case was tried and there was judgment in favor of the plaintiff and defendant appealed.

OPINION

A careful reading of all the evidence in the case fails to reveal a positive, definite accident. Prank Nowaski was employed as an “all around” man, sometimes unloading cars, wheeling glass, etc., and sometimes at carpenter work, and in all of his work was more or less exposed to dust in and around the glass factory.

In July or August, 1924, he was taken sick and went home and never returned to work at the glass factory. The only evidence as to the cause of his sickness is that of Joe Bizat, pages 2 and 3:

“Q. How came hiin to quit?
“A. Well, he got some soda ash at Jewella and it was very dusty there and we worked in that dust and the next day he was sick and told me he could not work any more for a while, that he was very sick, very bad, and then he didn’t start any more.
* * *
“He said that he could not work, that he was sick. on account of that he was burned with the soda; that is what he told me. Then when they came back they told me he saw the doctor.
“Q. Was this a close room you were using it in — this soda?
“A. Well, it was a big hill and they were cutting the side from the top and when that fell on the' floor they picked it up. Of course it made some dust.”

Mrs. Pearl Nowaski testified, pages 13, 14 and 21:

“Q. Now when did Prank die?
“A. He died on the 24th of August.
“Q. Do you remember when he got sick?
“A. Yes, sir.
“Q. How long after his quitting from the glass plant was it before he got sick?
“A. Something like August or July; if I am not mistaken I think July.
* # #
“Q. That is the year 1924?
“A. Yes, sir.
“Q. And he died August 24, 1925? “A. Yes, sir.
* * *
“Q. Did he tell you — since you were asked by counsel about the burn on his stomach — did he tell you ’ the day that he quit that he was hurt with this lime?
“A. Yes, sir, he always said it was killing him. That is what he claimed.”

This and similar evidence is relied on by plaintiff as showing that Prank Nowaski sustained an accident that caused his death.

No medical expert who attended Prank Nowaski at the time he quit work at the glass factory or immediately thereafter was called as a witness. ■

Doctor G. H. Cassity testified, page 23:

“Q. I will ask you to state the effect of those kind of compounds with regard to their ability to produce death or to aggravate a frail condition that might be already weakened?
“A. Well, I should say, in answer to the first part of your question, that the ability of those compounds to produce death would depend upon whether or not they contained an arsenic content; that is, to produce a reasonably short death.”

.Doctor M. L. Adair -testified for defendant, page 41:

“Q. What is soda ash?
“A. It is carbonated soda dissolved in water.
“Q. Dissolved in water?
“A. Yes, sir, it is .carbonated soda sulphur.”

Prom this evidence we are unable to conclude that soda ash is a poisonous chemical calculated to produce tuberculosis from inhalation.

The only medical testimony as to the nature of Prank Nowaski’s illness relates to his condition about March 23, 1925, and was given by Doctor R. A. Paine and Doctor M. L. Adair.

Doctor Paine testified, pages 35 and 36:

“Q. Do you remember having examined a man by the name of Prank Nowaski?
"A. Yes.
“Q. When did you make this examination, Doctor?
“A. March 23, 1925.
“Q. Will you please state to the court the nature of the examination you made, and your diagnosis of that case?
“A. The history that he gave was that he was thirty-seven years old, married, white, a glass plant worker; first took sick in July, 1924. That was his statement. He says that his trouble was caused by the inhalation of soda ash incidental to his work while in the employ of the glass factory. He denies all past illnesses; no spitting of blood; no nose bleeds; family history is negative for T. B., cancer, rheumatism and heart trouble. The physical examination today shows a general emaciated condition. Temperature of 103; pulse 120; respiration 35; systolic blood pressure* 104; diastolic 64; maxium weight for the past 12 months 135 pounds; weight today is 110 pounds. Detailed lung examination is as follows: Right lung: apex to fifth rib anterior and to fifth dorsal spine dullness, many moderately coarse rales without coughing and do not disappear on coughing; increased framitus this area; voice .and breath, sounds -increased this,area. (Left lung: lagging and dullness apex to third rib anterior .and to -seventh dorsal spine posterior; framitus increased; voice and breath pounds increased :tlys area with many moderately coarse rales same .as right lung. Near fifth dorsal spine interscapula area probably a small cavity formed well walled off.
“Q. And your diagnosis?
“A. The diagnosis was chronic pulmonary tuberculosis.
“Q. Doctor, I will ask you if the blood pressure was high or low?
“A. It was low.
“Q. In your opinion, what was the duration of this tuberculosis?
“A. Three years or over.
“Q. You mean at the time you made the examination?
“A. Yes, sir, at the time I made the examination.”

Dr. M. L. Adair testified, page 40:

“Q. Did you take any photographs of Prank Nowaski?
“A. No I made a radiograph, an x-ray picture of Frank Nowaski.
“Q. When did you do that?
“A. The latter part of March — March 23, 1925. '
“Q. Have you that picture?
“A. I have.
“Q. How many have you?
“A. One.
“Q. One?
“A. Yes, sir.
“Q. Mark that for identification ‘Defendant-1’. (Same is marked ‘D-l’ for identification.) Will you please interpret or read this radiograph?-
“A. Posterior-anterior view of chest shows increased pori-arterial density throughout both lungs. There are abnormal areas of increased resistance to the ray in the upper half of both lungs. There is cavitation in the upper lobes of both lungs. The evidence of fribrósis is small and there is no apparent calcification. This lack increased the gravity of the prognosis. Diagnosis: Advanced' pulmonary tuberculosis involving both lungs.
“Q. Doctor, what would you say was-the duration of that tubercolosis?
“A. Well, off-hand and judging by the cavities I would say at least two years old at the time I examined him.”

From this and all other evidence in the case we are convinced that Frank Nowaski died from tubercolosis of two or more years standing and that no definite, specific accident originated or accelerated the disease.

Our sympathies go out to the widow and children of the deceased and we would be glad if the facts were such as to require an affirmance of the judgment; but the judgment is not warranted by the evidence, and the law is inexorable that where this is the case the judgment must be reversed.

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


author: WEBB, J.

text:
    No. 2705
    Second Circuit
    GEORGE v. TEXAS PIPE LINE COMPANY
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 626; Master and Servant — Par. 160 (l).
    The finding of the trial court as to the credibility of the plaintiff, an injured employee suing for compensation under the Workmen’s' Compensation Act No. 20 of -1914, as a witness was negligible being clearly correct is affirmed.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by Sidney W. George against Texas Pipe Line Company. There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellant.
    Pugh and Boatner, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaitiff brings this action to recover compensation for permanent total disability to do any work of a reasonable character, alleged to have resulted from an injury sustained by him while in the employment of the defendant.

On trial, judgment was rendered rejecting the plaintiff’s demands and he has appealed.

OPINION

The plaintiff was in the employ of the defendant on October 7, 1925, as a laborer on a pipe line being laid by the defendant, receiving for his services a weekly wage of twenty-eight dollars, and he testifies that on the date above, while he, together with three other men were moving an apparatus used in laying pipe lines, known as a “horse” and weighing three hundred and twenty-nine pounds, one of the men who had hold of the corner of the machine diagonally opposite plaintiff, lifted up on that end and threw the weight of the apparatuB upon plaintiff, causing him to slip or fall into a ditch’over which the “horse” was being carried, and that he felt a severe pain in his back, which had increased until it had reached such severity in December, 1925, as to totally disable him from doing any work of a reasonable character.

The evidence establishes that all work on the pipe line was discontinued on the date on which the plaintiff claims he was injured and all of the laborers discharged, with the exception of plaintiff who was retained in the employ of defendant as the driver of a truck,’ in which service he was required to load and unload pipe and for which he was to receive a weekly wage of forty dollars; that plaintiff took up the work of operating the truck on the 8th of October and continued in this work until the 22nd of October when he became ill with fever and laid off until November 10th when he went back to work and continued until November 27th when he was again ill with fever and was again laid off until December 20th when he went back to work and worked for four days when he discontinued his employment and had not worked again at the date of the trial, February 26, 1926.

An x-ray examination of plaintiff showed that there had been a slipping or displacement of the fourth and fifth lumbar vertebrae and the plaintiff is of the opinion that this displacement was due to the strain which he states he felt when the weight of the machine or “horse” was thrown upon him by one of the carriers lifting up the corner of the machine.

The physicians who examined plaintiff were of the opinion that the abnormality of the spine was slight and that it may have been in the position shown by the x-,ray from plaintiff’s birth, and if so that it would not have disabled plaintiff to any extent, but that if it was due to a strain it would disable plaintiff from lifting heavyweights or from bending his body and seriously disable him.

The physicians were also of the opinion that if the vertebrae had been displaced by trauma or a strain, as plainitff was of the opinion it had been, he would have been completely disabled at that time from continuing with his work; but the evidence shows that plaintiff continued in the work of carrying the “horse” immediately after the time he states he felt the strain, and it further shows that he accepted employment the day following the alleged accident which required that he should do heavy lifting and work which the physicians were of the opinion he could not have done had the vertebrae been displaced by the strain.

The plaintiff claims that his back pained him from the time of the strain, _ yet he admits that when he applied for work as a driver of a truck, which also required him to load and unload pipe, he made no complaint of any disability but on the other hand he assured the representative of defendant who engaged him to drive the truck of his ability to do the work.

The physicians stated that the fever with which plaintiff was stricken while he was driving the truck, could be accounted for if the strain had caused a hemorrhage which would have left a discolored spot on the body, and the plaintiff upon being recalled stated that there was such a discolored place on his back. However the physicians who had examined plaintiff several times did not mention this circumstance.

While the plaintiff states he is unable to work due to pains in his back, the evidence shows that he has been taking exercise on a horizontal bar, such as lifting his body with his arms, “chinning the bar” without discomfort, although he states that he is unable to lift himself the number of times he could prior to the accident.

As we view the evidence in this cause, giving full credence to the statement of plaintiff, it presents an instance where the right of plaintiff to recover would have to he based solely on the assumption that any disability with which he claims to suffer must be attributed to the strain which he states he received, as the evidence does not otherwise account for his disability, although the physicians called by him are unable to account for the plaintiff’s ability to have continued with his work if the strain caused the displacement of the vertebrae.

Conceding that in such situation the judgment should be for the plaintiff, it depends solely upon the testimony of the plaintiff, who was found by the trial court to be wanting in credibility, and as we are of the opinion that the record warrants such finding, we shall affirm the judgment.


text:
    No. 2685
    Second Circuit
    COBB v. GILLILAND OIL COMPANY
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Master and Servant —Par. 159.
    "Where the evidence in a Workmen’s Compensation case under Act No. 20 of 1914 clearly shows that the disability is permanent up to the time of the trial, the court will grant judgment as for total permanent- disability compensation to be paid for. a. period not exceeding four hundred (400) weeks.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Claiborne, Hon. John S. Richardson, Judge.
    Action by John M. Cobb against Gilliland Oil Company. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellee.
    Smitherman, Tucker and Mason and Alex. F. Smith, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This is an action under the Employers’ Liability Act, in which plaintiff seeks to obtain judgment for compensation for permanent total disability at the rate of twenty dollars per week for the period of disability not exceeding four hundred weeks.

On trial, judgment was rendered in favor of plaintiff for compensation at the weekly rate claimed for the period of disability, not to exceed three hundred weeks.

The defendant appeals, and plaintiff has answered the appeal asking that the judgment be amended and that the period of weekly payments be increased so as to fix the same for the period of disability not to exceed four hundred weeks.

OPINION

The injury which the plaintiff claims to have received occurred on the 3rd or 4th day of December, 1925; suit was filed on February 1,. 1926; and trial had in the district court on' March' 8, 1926.

The plaintiff testified that, while he was engaged in the employment of defendant as a “roustabout” or general manual laborer on one of the oil wells operated by defendant, a tool, “crumby tongs”, which he and his co-laborers were using in pulling the tubing from the well, was thrown against his body, striking him on the hip, causing him considerable pain at the time and finally, within a short time, resulting in crippling him to such an extent as to disable him from doing any work of a reasonable character.

There does not appear to be any dispute as to the wages which plaintiff was receiving at the time of the alleged injury, and the- only evidence as to his disability to do any work of a reasonable character is that of plaintiff, who states he is unable to do any work, and the opinion of one of the physicians who examined him at the time of the trial, who stated that plaintiff was unable to do any physical labor, and as we understand the only contention made by defendant is that the preponderance of the evidence does not show that plaintiff was injured as he claimed to have been and that the injury was the cause of his disability.

At the time plaintiff claims to have been injured, there were four persons, including plaintiff, engaged in working on the derrick floor, three of whom, including plaintiff, testified that plaintiff was struck by the “crumby tongs” during the process of pulling the tubing from the well, while the other, who was the foreman or head “roustabout” testified that he -did not have any recollection of the incident.

The same witnesses who testified as to plaintiff having been struck by the “tongs”, also testified that there' was a small bruised place oh the plaintiff’s hip at the close of the day, and plaintiff’s' Wife- also testified that there was such a bruised place on plaintiff’s body when he returned home, while the foreman testified that there was not any bruised place on plaintiff’s body.

There is some conflict between the Witnesses, which, however, relates to minor matters, and can be readily accounted for without affecting their credibility, and we are of the opinion that the preponderance of the evidence establishes that plaintiff was struck by the “tongs”, as he claims to have been, which fact was found by the trial court who heard and saw the witnesses.

As to whether the injury was the cause of the plaintiff’s disability, the record establishes that plaintiff’s posture when standing or walking is apparently that of one. afflicted with curvature of the spine, but an x-ray did not reveal any fracture or displacement of the bones, and the opinion of the physicians who examined plaintiff was that there was some contraction of the muscles which caused the body to be distorted, and that in the course of time if the contraction of the muscles continues, the bones of the spine will become displaced and a true curvature of the spine will result.

The plaintiff testified that on the night following the accident he suffered continuously, and that in about three days after the accident his body became distorted and had continued- in the same condition, causing him to continuously suffer, and Doctor Sanderson, who examined the plaintiff, stated that accepting the statement of the plaintiff as to the history of the case, he was of the opinion that the injury was the cause of the condition under which plaintiff laborered, although we gather from the testimony of Doctor Sanderson that the disability of the plaintiff, or the contraction of his muscles, could have resulted from other causes, but that no examination or tests had been made by him, which would enable him to express an opinion.

As we view the record, it appears that plaintiff, who was about thirty-two years of age, and had been in good health, able to do hard manual labor, received a blow on his hip which caused a bruised place to appear on his body; that it caused him to suffer during the night, and continuously since, and in a very short time his body became distorted and has continued in the same condition for several months, and we are of the opinion that in default of any evidence showing a pathological condition from which the condition could be said to have resulted, the presumption must be that the blow was the cause of the contraction of the muscles.

As to the period at which disability should be fixed, the only facts shown by the record which could have any bearing on this question was the age of the plaintiff, thirty-two years, the nature of the injury, a contraction of the muscles, and the period during which the disability had existed, from December, 1925, to March, 1926, a period of three months.

The question presented has been considered by this court in several cases.

In Connell vs. Gilliland Oil Co., 2 La. App. 435, where a young man, under majority, had received an injury which had affected the muscles of his back on August 21, 1924, and which had disabled him from' doing any work of a reasonable character, which disability had continued to the date of the trial on January 29, 1925, the court said, with relation to whether or not the evidence showed the disability to be -temporary or permanent within the meaning of the statute:

“We must decline to enter .into this inquiry. To do so would be to assume the functions of prophets, for which we are neither authorized by law nor qualified by nature. If in any case of still continuing total disability we could from the testimony of medical experts in the record, form any opinion of our own as to how long disability would last, we could not do so in the case, which is .totally lacking in such evidence.”

In Chandler vs. Oil Fields Gas Co., 2 La. App. 778, where the plaintiff’s ankle had been broken on April 30, 1924, totally disabling him from doing any work of a reasonable character, which disability had continued for several months and to the date of the trial, it was said:

“As the injury has .resulted in total disability, compensation should be awarded on that basis; as the disability had not ceased at the time of the trial and as it would be purely speculative on our part to indulge in any opinion as to when, if ever, it will cease, and as after a year from the time the judgment becomes operative the defendant will have the right to review the judgment, we think it proper to apply clause (b) of subsection 1 of section 8.”

In Price vs. Gilliland Oil Co., 3 La. App. 175, where the plaintiff’s ankle had been broken on November 25, 1924, causing total disability to do work of any reasonable character, which disability had continued to the date of the trial, on May 26, 1925, the court said:

“Where a condition of total disability at the time of the trial is shown which is likely to continue for a considerable length of time, we think the purposes of justice demand that the matter be left for time to determine. In case the total disability does cease, defendant can avail itself of the right granted by,.the statute to review the judgment.’’ " '

In Hutchinson vs. Louisiana Central Lumber Co., 3 La. App. 413, where the plaintiff, a man of sixty years of age, had received a fracture of the hip, which had produced total disability to do work of any reasonable character, the court said:

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

While these expressions were used strictly -with reference to the facts developed in the cases decided, and cannot be said to have announced a rule that in all cases where the injury has produced total disability to do any work of a reasonable character and such disability has continued for a period of some months, down to the date of the trial, the period of disability should be fixed under clause (c) rather than under clause (a) of subsection 1 of section 8 of the statute, we are of the opinion that the decisions cited establish a precedent that where such facts appear the period of compensation will be fixed during the period of disability, not to exceed four hundred weeks, unless there be some other fact established or evidence produced which shows that the disability should be held to be temporary.

In the present instance, there is no evidence which enables us to depart from the precedents, and we are of the opinion that the judgment should have fixed the period of the weekly payments during the period of disability, not exceeding four hundred weeks;. and it is ordered, adjudged and decreed that. the judgment appealed from be amended so as to fix the period of the weekly payments, during the period of disability, .not exceeding four hundred weeks, and.as thus amended,..that .the judgment be affirmed. „