author: BELL, J.

text:
    No. 10,116.
    Orleans
    MICHEL BROS., INC., v. CHARLES MALLYNN, Appellant
    (Nov. 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Automobiles—Par. 4 (d).
    When plaintiff’s violation of a traffic ordinance does not appear in any manner to have contributed to the cause of an accident or to have had anything to do with the negligence of the defendant, then such violation does not preclude recovery.
    2. Louisiana Digest—Damage's—Par. 90; Evidence—Par. 349.
    Unrebutted evidence or necessary itemized repairs to a damaged automobile will be allowed when the court is satisfied that the damages are reasonable.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the First City Court of New Orleans, Section “C”; Hon. William V. Seeber, Judge.
    This is a suit for damages arising out of an automobile accident.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Woodville and Woodville, of New Orleans, attorneys for plaintiff, appellee.
    Daly and Hamlin, of New Orleans, attorneys for defendant, appellant.
   BELL, J.

Defendant appeals from a judgment awarding the plaintiff $103.45, the amount representing necessary repairs to to two automobiles belonging to plaintiff. With one of these cars, defendant’s automobile collided, causing damages to both of plaintiff’s cars. The accident occurred about three o’clock on the morning of November 1, 1923, in the City of New Orleans, at the intersection of the Spanish Fort road and Canal Boulevard.

The drivers of the three cars were all returning from Halloween parties at Spanish Fort, where they had spent the greater part of the night. The plaintiff’s cars were an “Overland” and a “Ford”. The former became disabled because of some portion of the car’s mechanism being loosened or disconnected. For this reason, the driver of the Overland car had stopped and parked on the right hand side of the Spanish Fort road, the car heading toward the New Basin Canal, in-order that the driver might repair the engine trouble which prevented him from going further on his journey. While the Overland car was in this position between the two roadways on Canal Boulevard, as these roadways intersected the Spanish Fort road, the driver of the Ford car coming up behind and finding that the Overland car driven by his brother was in trouble, drove the Ford car to the extreme right of the Spanish Fort road, turning it around so that its headlights would shine directly on the front of the Overland car. While both cars were parked in this head-on .position, and well to the right of the road, the trouble in the Overland car had almost been rectified when defendant’s automobile, also coming from the direction of Spanish Fort, smashed into the rear of the Overland car and threw it in turn against the Ford car, causing the damages which have been claimed and allowed.

The plaintiff charges defendant with negligence in that he was driving at a dangerous and reckless speed, and in such a careless manner as to cause the accident which could have been easily avoided. The defendant answers by averring that the municipal lights at the junction of the roadways were not burning; that the plaintiff’s Ford car was not parked to the right of the Spanish Fort road nor fronting toward the New Basin Canal, like the Overland car, but was, in fact, parked in the middle of the roadway, against traffic, and facing the direction from which defendant was traveling; that the glaring headlights on the Ford car blinded defendant’s vision so as to prevent him from seeing any obstructions on the right of the roadway, directly in front of him. It is also charged that all of the lights, particularly the tail light on the Overland car, were not burning, thus depriving defendant of the opportunity of knowing or seeing the danger ahead of him. It is finally charged that both of the palintiff’s cars were parked in an intersection and not twenty-five feet therefrom. The city traffic ordinances in reference to parking and lighting of motor vehicles, are cited and pleaded by defendant, and it is finally contended that no legal nor sufficient proof of the alleged damages have been made, and that therefore none can be allowed.

The small amount involved herein does not justify any lengthy comment on the testimony adduced at the trial. We find, by a preponderance of evidence, that this case, which involves largely issues of fact, is with the plaintiff, and there is nothing in the record which causes us to believe that the trial judge, who saw and heard the witnesses, could have erred in his conclusion as to the facts. We find, from the evidence, that both of plaintiff’s cars were on the proper side of the road, and well to the right thereof at the time of the accident, although it is true that the Ford car was parked in the wrong direction, the reason for its being so parked with its left side to the curb, has already been noted, and while the reason was a good one, there was, nevertheless, a violation of the traffic ordinance C. C. S. 6173, Art. I, Sec. 7, also Art. V, Sec. 1 (e). It may also he true that the lights on the disabled Overland car were not burning, though as to this fact we are in considerable doubt, but if the lights, particularly the tail light on this car, was not burning ing, and the traffic ordinance in this respect was also violated, none of these violations can he pleaded by the defendant unless it can be clearly shown that such violations were the direct or contributing causes of the accident. We do not find them to have been so, for two reasons. The fact that the Ford car was parked in a direction against traffic could not have been the cause of defendant striking the Overland car which was nearest to him, nor could the doubtful fact that the Overland car’s lights were out have caused defendant not to have seen the car in time to prevent collision with it. By a preponderance of evidence, it is established that the place of the accident was well-lighted by the city lights, and also that the rays of light from the Ford car were shining well upon and about the Overland car.

We do not find, under the circumstances of this case, that Art. Y, Sec. 1 (e) of the ordinance Was violated.

Defendant contends that both of plaintiff’s cars were parked immediately within the two roadways of Canal Boulevard, which intersect with the Spanish Fort road, and wére not within twenty-five feet of either street intersection. This section must be read in connection with Art. Ill, Sec. 9 (b) of the ordinance, which provides.

“That in case of necessity, vehicles may be stopped in the public streets for the replacement or repair of tires or for minor adjustments, but shall not be stopped in such a manner as to impede traffic.”

It is not possible, from the evidence, to attribute the cause of the accident to either the manner in which or the place at which plaintiff’s cars were parked. The plea as to violation of traffic ordinances in this respect is therefore not available as a defense. Bellocq vs. Hotel DeSoto Company, No. 8587, Orl. App.

We find the defendant was wholly at fault in failing to see the parked cars when he should have seen them, and by-driving at an excessive speed, a fact which must be inferred from the extent of the-damage to the cars as well as from the position in which the Ford car was found! after the accident, this car having been driven, by the severe impact, from the far side of the Spanish Fort road into the middle thereof.

The repair bills offered in evidence are carefully itemized and annexed to the petition, and proof of their payment by plaintiff has been fully established. Letters in the record, as well as the fact that the repair bills were made part of the petition, show that the defendant was given every opportunity to know the extent of damage contended for. In Hendren vs. Crescent City Seltzer Water' Company, 1 La. App. 25, 625, this Court decided that:

“Where plaintiff testifies to the actual itemized repairs necessary to his damaged automobile, and where there is no evidence to the contrary, such damages will be allowed when the Court is satisfied that they are reasonable. (178 N. W. 238, 211 Pac. 760).”

For the reasons herein stated, it is ordered that the judgment appealed from be affirmed, at defendant’s cost in both courts.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,125.
    Orleans
    DUDLEY O. HANENANN. v. MISS P. EBERLE, Appellant
    (Nov. 2, 1925, Opinion and Decree.)
    (See Opinion, October 20, 1924, in 1 La. App. 21.)
    Appeal from First City Court, Division “C”; Hon. William Y. Seeber, Judge.'
    Woodville and Woodville, of New Orleans, attorney for plaintiff, appellee.
    Geo. P. Eberle, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Tbe facts in this case are stated in our opinion rendered October 20, 1924, when tbe case was before us under the Number 9737 of our docket. At that time we remanded the case for the purpose of allowing plaintiff “to show the expense and labor already incurred by him on account of the job at the time of his discharge and the profits he would have realized had he been permitted to complete his contract”. The judge of the trial court after hearing this evidence, reached the conclusion that plaintiff was entitled to $130.00. Our review of the court’s finding upon the record as made up convinces us that there is ho error in the judgment appealed from and it is, therefore, affirmed.

Judgment affirmed.


author: CLAIBORNE, J.

text:
    No. 10,128.
    Orleans
    JOHN BOE v. JAMES E. CONRAD, Appellant
    (November 2, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 625, 626, 627.
    The judgment of the trial court in favor of plaintiff will be affirmed although his testimony stands alone against the testimony of the defendant and his mother when their testimony seems impossible.
    Appeal from First City Court, Division “B”. Hon. V. J. Stentz, Judge.
    This is a suit for the value of cattle.
    There was judgment for' plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellee.
    William F. Conkerton, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for the value of cattle.

The plaintiff averred that he sold to the defendant on September 19, 1923, a

heifer worth ______________________________________________$ 40.00

A set of harness ______________________________________ 47.50

And a horse ______________________________________________ 150.00

Making a total of ______________________________$237.50

Which were all delivered to the defendant.

The defendant denied the allegations of the plaintiff and alleged that on September 3, 1923, he purchased from the plaintiff a horse for the price of $80.00, which he paid to the plaintiff.

There was judgment for plaintiff for $125.00.

The defendant has appealed.

The facts are that the defendant owned a dairy; that on September 5, 1923, by notarial act, he sold his dairy to the plaintiff for $400.00; that the three articles mentioned in the plaintiff’s petition were included in the sale; and that those three articles are now in the possession of the defendant. The defendant claims that a condition of the sale which he made to plaintiff was that the plaintiff should sell him back the horse for $80.00; and that on September 3, 1923, two days before the notarial sale, he paid to the plaintiff the $80.00 for which, the plaintiff gave him a receipt.

The receipt reads as follows:

“September 3, 1923.
“Received of J. E. Conrad the sum of Eighty ($80.00) Dollars. Received payment.
(Signed) “J. BOE.”

But the plaintiff swears that he does not know how to read or write, and that he signed the receipt because defendant asked him to do it, as “he just wanted to show it to his wife”, but that he did not receive the $80.00 nor any money at all.

The defendant, on the contrary, swears that he paid the plaintiff $80.00 as the agreed price of the horse. That he paid it in eight ten-dollar bills which he borrowed from his mother. Defendant’s mother corroborates her son.

The trial judge has not believed them, neither do we.'

They were both interested parties. It is not easy to believe that two days before he sold his horse to the' plaintiff and before he received the price that he should buy the horse. from the plaintiff and pay for it.

Second. The evidence is that the heifer was worth $10.00. For the same reason that defendant’s evidence could not convince us that he paid $80.00 we do not believe that the plaintiff gave him the heifer as a gift.

Third. The harness kept by defendant is, we believe, the harness sold by him to the plaintiff. Its original cost was $43.50. It had been in use, however, for a year and a half. We think $20.00 was a fair value for it.

The judgment in favor of plaintiff is therefore amended by reducing the same from one hundred and twenty-five dollars to one hundred and ten dollars; and as thus amended it is affirmed, the defendant to pay the costs of the city court and the plaintiff to pay the costs of appeal.


text:
    No. 10,145.
    Orleans
    EARL DOUGLASS, Appellant v. WILLIAM H. BURNEY
    (November 2, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Obligations—Par. 4, 30.
    A promise to sell which binds only the promisor is a nudum pactum.

    (Civil Code, Art. 2462. Editor's note.)
    Appeal from the First City Court of New Orleans, Section “C”. Hon. William Y. Seeber, Judge.
    This is a suit to recover money paid in connection with a proposed sale of real estate.
    There was a judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Philip R. Livingston and John J. Darrieux, of New Orleans, attorneys for plaintiff, appellant.
    Emerson Bentley, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sues to recover $200.00 paid to defendant in connection with a proposed sale of real estate then under consideration by plaintiff as prospective purchaser and defendant as owner.

Defendant denies that there was any negotiations between the plaintiff and himself, asserting that he dealt only with a party by the name of Ross. However, the receipt given by defendant for the $200.00 is made out in Douglass’ name. Plaintiff says it was his money and Ross, who testified in the case, said it was plaintiff’s money, and since there is no proof of agency, we must conclude that plaintiff is the party in interest.

The receipt reads as follows:

“April 15, 1924.
“Received of Mr. Earl Douglass Two Hundred Dollars Deposit on 4 lots G. H. I. J. at $300.00 each on Bartholomew bt. Law and Florida Walk.
“$200.00 “W. H. BURNEY.”

It is argued that this receipt is not a contract, cannot be evidence of an agreement to buy and sell, and gives no right to specific performance; that it simply represents an abortive effort to enter into a contract of sale of immovable property which was not consummated and that, consequently, plaintiff must recover his money deposited with defendant.

Article 2462, R C. C., is as follows:

“A promise to sell when there exists a reciprocal consent of both parties as to the thing, the price and terms and which, if it related to immovables, is in writing so far amounts to a sale as to give either party the right to enforce specific performance of same.”

It is evident that this receipt cannot be regarded as complying with the requisites of the Code as a promise to sell immovable property. There is no reciprocal consent whatever may be said of the other essentials. Burney alone is bound and it is, therefore, a nudum, pactum. Campbell vs. Lombert & Co., 36 La. Ann. 35.

There is considerable discussion in counsel’s brief and there was much said in oral argument about defendant’s right to file a supplemental answer excluded by the trial court. The supplemental answer appears to us as having been properly excluded.

In the excluded pleading defendant insists that he had no dealings with plaintiff and dealt only with Ross; that he agreed to sell' Ross the property and Ross took possession of it at once, and continues to possess same. But if it is held that plaintiff was the party he dealt with and not Ross, then there should be judgment ordering the return of the property with a reasonable rental, which defendant puts at $10.00 per month, and revenues. It is obvious that whatever Ross has done to the prejudice of defendant cannot be considered in an action to which he is not a party.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the plaintiff, Earl Douglass, and against the defendant, W. H. Burney, in the sum of $200.00, with interest from official demand, and costs of both courts.


author: REYNOLDS, J.

text:
    No. 2461
    Second Circuit
    MATTHEW BURTON v. KAUCHER, HODGES & COMPANY
    (November 4, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Laws—Par. 84, 85; Master and Servant—Par. 160 (k).
    Construing Section 21, subsection 2 of the Workmen’s Compensation Law, Act No. 20 of 1914, together with Act 124 of 1906, an attorney in a Workmen’s Compensation Law case can reasonably charge one-third of the amount that may be recovered as his fee and this contract gives the attorney a privilege on any judgment he may recover for his client to secure the payment of his fee.
    2. Louisiana Digest—Master and Servant . —Par. 154, 159, 159 (a).
    An injured employee suing under the Workmen’s Compensation Law, Act No. 20 of 1914, Section 8, subsection 1 (a) as amended by Act 216' of 1924, may recover compensation for and during temporary total disability and after such disability shall have ceased may recover compensation under Section 8, subsection 1 (e) of the same act.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.

      This is a suit under the Workmen's Compensation Law, Act No. 20 of 1914, brought by an injured employee for compensation.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendants, appellants.
    STATEMENT OF THE CASE.
    This is a suit under the Workmen’s Compensation Law of Louisiana.
    Plaintiff’s petition alleges:
    In paragraph 1: That defendants are indebted to him for compensation at the rate of $13.65 per week for 109 weeks, beginning December 10, 1924, with legal interest on each installment until paid.
    In paragraph 2: That on or about December 10, 1924, while working for defendants on a steam pile driver in Caddo parish, Louisiana,
    “and while he was actually holding an end of a rope and pulling same which was attached to what is known as the nigger head of said driver his right hand and fingers thereon were caught in the said rope and the movement of the nigger head pulled his right hand against the nigger head and other objects, thereby seriously and permanently injuring and impairing the usefulness of his said hand, permanently and seriously crooking the little finger on the said hand, and although the said little finger is yet on his hand it is of no service whatever to him, and seriously and permanently impaired; that his hand and finger were sore and in the healing period so he was unable to do any kind of _ work for nine weeks after he was thus injured. That at the time he was thus injured he was working for and receiving a wage or daily rate of pay of twenty-one dollars per week.”
    In paragraph 3: That he received his said injuries while performing duties incidental to his employment in the course of his employers’ trade, business and occupation of moving dirt by machinery, driving piling in the ground with machinery and doing general construction work.
    In paragraph 4: That he and defendants are unable to agree upon a settlement of the amount of compensation that is owing to him for his injuries; that the defendants did not furnish him with hospital services, and that he had to supply himself with food and medicines at home and did so at a cost of over fifty dollars. That since the accident the defendants had paid him $48.75 which should be credited on¡ the amount he was compelled to spend in lieu of the hospital and medical services defendant failed to give him.
    In paragraph 5: That he made contract to give to his attorney^ Julius T. Long, for ■his professional services, one-third of whatever amount may be awarded him in the suit.
    In paragraph 6: That soon after he received his injuries defendants became aware of the nature, cause, time, place and extent thereof.
    There is a prayer for judgment for compensation at the rate of $18.65 per week for 109 weeks beginning December 10, 1924, with legal interest on each installment from its maturity until paid, and that the contract between plaintiff and his attorney be approved.
    Defendants moved that the allegations regarding the contract between plaintiff and his attorney be stricken from the petition on the ground that such contract is illegal, and in the event this motion should be overruled, they excepted that plaintiff’s attorney was a necessary party to the action and that it could not proceed without him.
    In the event this exception should be overruled, defendants denied the allegations of paragraphs 1, 2, 3 and 6 as written.
   REYNOLDS, J.

They admit that a dispute exists between them and plaintiff as alleged in paragraph 4 of the petition, aver that they have paid him more than $48.75 and deny the remaining allegations of the paragraph.

In answer to paragraph 5, they allege that the contract between plaintiff and his attorney is illegal and void.

Further answering they request that plaintiff be ordered to report to Doctor Guy A. Caldwell, for a physical examination. This request was granted, the plaintiff reported as ordered and Doctor Caldwell’s report of the examination is in the record.

The district judge rendered judgment in favor of plaintiff for $11.75 per week for sixteen weeks and for $3.00 per week thereafter for one hundred weeks, the payments to begin December 17, 1924, less $122.95 to be deducted from the first payments falling due, with legal interest on each payment not consumed by the credit from its maturity until paid.

From this judgment defendants appealed, and in ■ this court .plaintiff has answered the appeal and asks that the judgment be amended so as to allow him $11.75 per week for 100 weeks instead of $3.00 per week for 100 weeks and that otherwise the judgment be affirmed.

OPINION.

Defendants plea that the contract between plaintiff and his attorney whereby the latter is to receive one-third of whatever amount may be recovered in this-suit as compensation for his services is illegal is not supported by the citation of any authority.

Act 124 of 1906 specially authorizes the making of such a contract by an attorney and his client, and in the case of Smith vs. Vicksburg, Shreveport & Pacific Ry. Co., 112 La. 985, such a contract was duly recognized by the Supreme Court.

Paragraph 2 of Section 21 of the compensation act provides:

“Fees of attorneys and physicians for services under this act shall be reasonable and shall be measured according to the workman’s station and shall be approved by the court.”

Under the two above mentioned acts this court has frequently approved contracts between attorneys and their clients where the court found such contracts reasonable, and we consider one-third of the amount that may be recovered in this case a reasonable fee.

Defendants’ contention that the contract between the plaintiff and his attorney makes the latter a joint owner with him of the cause of action and that the suit should not proceed unless Mr. Julius T. Long be made a party to it cannot be sustained in law, for Act No. 124 of 1906, above mentioned, gives the attorney a privilege on any judgment he may recover for his client to secure the payment of his fees, and hence it follows that the attorney is not a joint owner with his client but only has a privilege.

Defendants insists that under the authority of Craft vs. Gulf Lumber Co., 151 La. 281, 91 South. 736, plaintiff having received full compensation for temporary total disability „ during sixteen weeks cannot now recover for the permanent impairment of the usefulness of a member or any physical function for 100 weeks under Section 8, subsection 1, clause (e) of the compensation act.

This clause reads as follows:

“In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a member or any physical function is seriously permanently impaired, the court may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in cases of specific disability above named, not to exceed sixty-five per centum of wages during one hundred weeks.”

Under this plain and unequivocal language we find no reason to refuse compensation under this clause of the act on the ground that plaintiff had already received compensation for a period of sixteen weeks for temporary total disability under another provision of the act.

In our opinion it is clear that an injured employee may recover compensation for and during temporary total disability and after such disability shall have ceased may recover compensation under clause (e) of subsection 1 of section 8.

We do not think that Craft vs. Gulf Lumber Company, 151 La. 281, 91 South. 736, supra, holds to the contrary, for in that case the court said:

“Besides this claim is only made in the alternative in plaintiff’s petition.”

The claim referred to by the court was one for 100 weeks additional compensation under clause (e) of subsection 1 of section 8, in the alternative, and in the same judgment the court awarded the claimant compensation for 300 weeks under a different provision of the act under his first claim.

In our opinion, under the authority of:

Quave vs. Batson & Co., 151 La. 1052, 92 South. 678.
Kinney vs. Edenborn, 151 La. 216, 91 South. 712.
Mack vs. Legeai, 144 La. 1017, 81 South. 694.
Harwood vs. Standard Oil Co., 1 La. App. 310, the/ judgment appealed from in this case is correct.

Defendants further insist that the amount allowed plaintiff is excessive; but the allowance was only $3.00 per week, the minimum permitted by the compensation act.

Plaintiff insists that the judgment should be increased from $11.70 per week during total disability to $13.65 per week on the ground that he was receiving $3.00 per day and that 65% of $21.00 is $13.65 and not $11.70; but there is no proof in the record that plaintiff worked seven days in the week and under the general custom there are only six working days in the week, and in the absence of proof to the contrary we must presume that plaintiff only worked six days in the week. We do not feel warranted in changing the finding of the trial judge as to the number of days in the week the plaintiff worked from six to seven.

For the reasons assigned the judgment of the lower court is affirmed.


author: CARVER, J.

text:
    No. 2479
    Second Circuit
    CHARLEY SCOTT v. STANDARD PIPE LINE COMPANY
    (November 4, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 159, 159 (a).
    The Workmen’s Compensation Law, Act No. 20 of 1914, does not prescribe the wages that an injured employee actually earns after the accident as a factor in measuring the compensation, and therefore, the wages earned by the injured employee after the accident are not to be taken as the sole criterion of what he is able to earn. His ability to obtain steady employment and the motives guiding those giving him employment should, with other circumstances be used as guides to form a conclusion.
    2. Louisiana Digest—Master and Servant —Par. 160 (I); Appeal—Par. 625.
    The finding of the trial judge in a Workmen’s Compensation case under Act No. 20 of 1914, Section 8, Subsection 1 (c) as to the amount which the injured is able to earn being manifestly correct is affirmed.

      3. Louisiana Digest—Master and Servant —Par. 159, 160 (e).
    The proper judgment for a court to give under Section 8, Subsection 1 (c) of the Workmen’s Compensation Act, No. 20 of 1914 as amended by Act 216 of 1924, is for a continuance of the allowance during disability, but not exceeding 300 weeks.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit for compensation brought by an injured employee under the Workmen’s Compensation Law, Act No. 20 of 1914 as amended by Act 216 of 1924.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellee.
    T. M. Milling and F. L. Hargrove, of Shreveport, attorneys for defendant, appellant.
   CARVER, J.

This is a suit under the Workmen’s Compensation Law, Act 20 of 1914 as amended by Act 216 of 1924, in which plaintiff claims compensation under section 8, 1 (c) on the basis of partial disability to do work of any reasonable character.

While walking along a sandy road plaintiff stepped in a rut, when his ankle turned and was sprained.

Defendant admits liability for such injury as was due to the accident but claims that the chief present trouble with plaintiff’s foot—displacement of the astragalus—was not caused by the accident but was congenital.

It next contends that no award can be made because the proof does not show what plaintiff was able to earn after the accident.

I.

There was no fracture of the bone but it is admitted that the astragalus, which is a wedged-shaped bone between the ankle joint and the calcanem or heel bone, and which articulates with the tibia, fibula and calcanem, is out of place and turns upwards. It is not denied that this causes the foot to rotate.

Doctor Sanderson testifies, and we do not find it disputed, that another effect of this displacement is to throw the plaintiff’s w*eight outside of the center of the foot instead of on the center.

He further says:

“The astragalus has been pulled loose from the ligaments holding it have been struck that hold the astragalus to the heel bone and in turning the foot over it has struck those ligaments and this astragalus is rotated partly up and the side of the foot and ankle leaving an opening between the heel bone and the astragalus of about three quarters of an inch. There is an opening between the two bones' that allows that bone instead of lying flat in the ankle joint, it lies kinder upwards in the ankle joint.”
“Q. And causes a swelling of the ankle, that is the left ankle, making it somewhat larger than the right?
“A. Yes, sir.
“Q. Now you discovered that?
“A. Yes.
“Q. Is that all?
“A. Well, yes, of course that is due to the fact that the injury disturbed these parts, also destroyed several of the foot ligaments, blood vessels and so forth, which of course carries the fluid into these parts and it cannot return freely, and there is some vein destruction there, and has been until today and of course there is a damming back, of the fluid that should return back from the foot.
“Q. Now this misplaced wedge-shaped bone, would that render the use of the foot painful?
“A. Yes, sir, that would render that painful.”

He further says that such displacement is not usually caused by an ordinary sprain which generally merely stretches the ligaments but often follows a severe or violent sprain and that it might be congenital but that the other evidence would tend to show it was not.

Doctor Barrow on being asked if the fact that there was no fracture would tend to indicate that the condition was congenital replied:

“Well the fact that there is no fracture would not have entered into my mind, but it is possible, there is a slight abnormal position of that joint with relation to the others.”
“Q. Have you formed an opinion as to the cause of that?
“A. Well, that is the cause. Yes, an opinion.
“Q. Well, what is that?
“A. Well the natural conclusion that I would reach is—that there has been a ligamentous trauma of some kind of allowing the bone to rock on each other, and I would say that that is a ligamentous or trauma, not exactly necessary, but I would say that there is a rotation and it could not have been with the ligaments in their normal tone or normal length.”

Doctor Walke, on the contrary, expresses the opinion that the displacement was a natural deformity, giving as a reason that the pain complained of by plaintiff was in the metatarsal bones which are more than an inch away from the astragalus.

Buckhanan, a witness for defendant, who had been Working with plaintiff for some time before the accident, “a week or such a matter”, says that although the work was pretty hard he does not remember plaintiff limping and that plaintiff did not complain of his foot before the accident.

On this evidence we cannot say that the lower judge erred in finding that the-entire injury to plaintiff’s foot was caused by the accident.

II.

Plaintiff was receiving $27.00 a week before the accident and admits that he is now able to earn $5.00 a week. He does not complain of the action of the district judge in finding that he can earn $10.00 per week; his demand in this court not being for a larger weekly allowance but for continuance of the allowance during disability not exceeding 300 weeks instead of for a fixed period of 100 weeks.

Defendant urges that plaintiff’s claim should be rejected because of the failure of the proof to establish what amount he is able to earn. The only proof in the record is the testimony of plaintiff himself.

“Q. You can walk on the foot some?
“A. Yes, sir.
“Q. You can do some kind of work?
“A. Yes, sir.
“Q. Have you been able to find any kind of work that you could do?
“A. No, sir, not so far.
“Q. I believe that you admit that you can earn as much as five dollars per week?
“A. Yes, sir.
“Q. Have you earned that since then?
“A. No, sir, I have not.”

Section 8, 1 (c), is as follows:

“For injury producing partial disability to do work of any reasonable character, sixty-five per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not, however, beyond three hundred weeks.”

A careful inspection of this language makes it apparent that the basis of the injured workman’s right of recovery is his having suffered an injury producing partial disability to do work of any reasonable character.

It is true that the measure of his right is 65% of the difference between the wages he received at the time of the injury and those which he is able to earn thereafter; but while this difference is prescribed as the' measure of his right, his right is not made to depend on whether he does or does not actually earn anything after the accident.

It is apparent, too, that the act does not prescribe the wages he actually earns after the accident as a factor in measuring the compensation and, in our opinion, such wages, even where some are earned, are not to be taken as the sole criterion of what he is able to earn. This would in many cases be an unsafe guide.

Sometimes a workman can get the same wages per week as before but cannot secure employment so readily or so steadily.

Sometimes he is given a steady job by friends for sympathy and paid former wages.

Sometimes the former employer will give him an easy job at the same wages for philanthropic motives, and, in some cases, it is contended, for the less worthy motive of minimizing the compensation for which he is liable.

Sometimes other causes affecting the earning capacity intervene; as industrial expansion, to increase demand for labor with consequent increase of wages; or industrial depression, to reduce these; or sickness or another accident unrelated to that for which the employer owes compensation.

Sometimes the workman might have means which would enable him to take a long rest without working to increase his chance of recovery.

In some cases it is charged that he deliberately earns less than he could for the fraudulent purposes of increasing his claim for compensation.

In some cases the trial might be held too soon after the accident to afford opportunity to test earning capacity by actual experience.

In some of such cases, the test of wages actually earned could not be applied at all, and in the rest it is not an absolute criterion, but merely a guide to be considered along with other factors in determining what the workman’s earning capacity is.

The wages actually earned could be a safe sole criterion only where all conditions were the same as before the accident, where neither the workman nor the employer was finessing for , position, and where the work the workman gets is obtained and paid for solely on the basis of its worth. .

We .find no warrant in the law for denying compensation for admitted or proven partial disability to do work of a reasonable character merely 'because the proof does not show what the workman can earn by the method of showing what he does earn.

What the court is required to do is to ascertain what he is able to earn. Where he does not earn anything, it is more difficult to do this than where he does; but it is not more difficult than many other problems which courts must solve as best they can by the use of discretion, their knowledge of men and affairs, and by decisions in analogous cases. In personal injury suits courts have no criterion but must fix damages as best they can. In claims for improvements the same thing must be done.

Under all the proof in this case, we think the district judge solved the question of what plaintiff was able to earn with approximate justice in finding that this was ten dollars a week.

We think, though, that he erred in fixing 100 weeks as the period during which the plaintiff should be entitled to compensation. The correct period, in our judgment, should be during disability, which may be more or less than 100 weeks but which, under the statute, cannot exceed 300 weeks.

The accident in this case happened January 31, 1925. The trial was held May 15, 1925. To determine when the condition of partial disability will cease, is too much a matter of conjecture to warrant the court in fixing on any. certain time. This is what we held in the cases of

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

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

Price vs. Gilliland Oil Co., 3 La. App. 175.

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

For these reasons it is decreed that the judgment of the lower court he so amended that the compensation of 311.05 per week awarded plaintiff for partial disability instead of being paid him for 100 weeks be paid during such disability but not exceeding 294 weeks being 300 weeks less the six weeks allowed for total disability.

It is further decreed that in all other respects the judgment of the lower court be affirmed and that defendant pay costs of both courts.


text:
    No. 2494
    Second Circuit
    THOMAS M. STEVENS v. OHIO OIL COMPANY
    (November 4, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest—Master and Servant —Par. 160 (j).
    The plaintiff, an injured employee suing under the Workmen’s Compensation Law, Act No. 20 of 1914, must establish his case by the preponderance of evidence that ' he was ■ disabled by the accident in question, the judgment must go to the defendant.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    This is a suit under the Workmen’s Compensation Law, Act No. 20 of 1914, Section 8, Subsbection 1 (b), as amended by Act 216 of 1924, brought by an injured employee for total disability to do work of a reasonable character.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellant.
    R. L. Benoit, of Shreveport, attorney for defendant, appellee.
   CARVER, J.

Plaintiff sues for compensation under the Workmen’s Compensation Law (Act 20 of 1914 and amendments), for 400 weeks on the basis of total disability to do work of a reasonable character produced by injuries received in an accident occurring while performing duties incidental to his employment by defendant.

The alleged injuries are: Pain in and weakness of the right knee caused by twisting and knocking the knee out of joint on three different occasions, namely: February 10, February 17 and February 21, 1924.

The defendant denies the first two accidents and admits the third, but claims that the injury was not serious, that plaintiff fully recovered from it on March 20, 1924, and that he has not suffered any disability by reason of it.

The district judge rejected plaintiff’s demand, and he appeals.

The crucial question in the case is not whether the alleged accidents occurred but whether as a result of these accidents the plaintiff has been disabled from- doing work of a reasonable character or is suffering other material injury.

On this question the only affirmative evidence is plaintiff’s own testimony.

Against this is a mass of contrary evidence.

I.

Plaintiff did not cease work because of either one of the first two accidents.

After the third, he ceased work for twenty odd days but then resumed and worked steadily at full wages in different capacities, some of them hard jobs, for over ten months.

II.

Dr. Barrow, who took an X-ray picture on February 10, 1925; Dr. Petty, who treated plaintiff ' from February 27, 1924, until March 17, 1924, and who had the advantage of an X-ray picture made by Dr.. Woolby on March 4, 1924, and Dr. Crain, who examined plaintiff for both sides on February 9, 1925, all say, in substance, that they can find nothing the matter with his knee, which seems normal and functions normally.

III.

On October 7, 1924, he was examined by Dr. Petty, who propounded written questions, which were answered by plaintiff over his own signature as follows:

“What serious sickness have you had? None.
“What injuries have you had? None.
“What operations have you had? None.
“Have you any physical weakness which you think might make , it inadvisable for you to accept employment as offered? (If so, give details.) None.”

IY.

Weaver, under whom plaintiff worked three or four days in the latter half of January, 1925; Ploss, who worked with plaintiff nine days in the last half of January, 1925, and Click, who saw and talked with plaintiff nearly every day for four or five months just prior to January 31, 1925, when plaintiff quit defendant’s employment, testify, substantially, that they did not see plaintiff limp, that he made no complaint of his knee and that he did not hold back from his work or refuse to' do it on account of his knee but did his work as well as the other workmen.

V.

When plaintiff quit, on January 31, 1925, he did not say it was on account of his knee, but told Charlton that he intended to go to Wichita Falls to obtain employment, and told Click that he did not like or did not get along with the “gang pusher”. From Click and Charlton he obtained letters of recommendation reading as follows :

“Haynesville, La., February 2, 1925. “To Whom It May Concern:
“The bearer, Mr. T. M. Stevens, has been employed by the Ohio Oil Company under my supervision for the past three years and I have found him to be a sober and steady workman and, has done all of his work to my satisfaction; he is now leaving •on his own accord.
(Signed) “E. B. CHARLTON,
“District Foreman, Pipe Line Division.”
“Haynesville, La., February 2, 1925. “To Whom It May Concern:
“This is to certify that Mr. T. M. Stevens has been in the employ of the Ohio Oi7 Company for the past three years as connection man, stock gauger, gauger and loading rack man, and his work has been satisfactory at all times.
(Signed) “S. A. CLICK.”

Plaintiff’s counsel invoke the principle decided in Jones vs. Powell Lumber Co., 156 La. 767, 101 South. 135, that the employers’ liability act should be liberally construed in favor of employees and dependents, and the principle decided in Dick vs. Gravel Logging Co., 152 La. 999, 95 South. 99, that the scope of the act should be enlarged rather than restricted and its provisions liberally construed so as to include all services that can be reasonably said to come within them.

We are in accord with these expressions and the decisions of this court, we believe, are uniformly in harmony with them. But these principles relate only to the construction of the act. They do not apply to' the question here, which is exclusively one of fact.

In view of the evidence recited above, we cannot say that the district judge erred in holding that the plaintiff had failed to make out his case by the preponderance of evidence required of all plaintiffs, those suing under the compensation law as well as others. The judgment of the lower court is affirmed.


author: ODOM, J.

text:
    No. 2503
    Second Circuit
    WILLIAM F. AND ELIZABETH DICKSON v. UNITED STATES SHEET & WINDOW GLASS COMPANY
    (November 4, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 154, 156, 159 (a).
    A scar on the face which mars and detracts from the natural expression of the face, which attracts attention, is a facial disfigurement contemplated by the Workmen’s Compensation Act No. 20 of 1914, Section 8, Subsection 1 (e) as amended by Act 216 of 1924.
    2. Louisiana Digest—Master and Servant —Par. 154, 159, 159 (a).
    In granting compensation under the Workmen’s Law, Act No. 20 of 1914 as amended by Act 216 of 1924, Section 8, Subsection 1 (e) reference should be made to Section 8, Subsection 1 (d) in order to fix the compensation in proportion to the schedule provided in Section 8, Subsection 1 (d) of the act.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. E,. P. Mills, Judge.
    This is a suit for compensation under the Workmen’s Compensation Law, Act No. 20 of 1914, brought by the parents of the injured employee for their son. There was judgment for plaintiff and defendant appealed. Plaintiff answered the appeal.
    Judgment amended and affirmed.
    Long and Crow, of Shreveport, attorneys for plaintiffs, appellees.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiffs bring this suit under the Workmen’s Compensation Act to recover compensation for their son, George L. Dickson, on account of what is alleged to be “a serious and permanent disfigurement of his face and head” resulting from an injury which he sustained while employed by the defendant company.

It is alleged that their son was cut and lacerated at a point near the right eye, leaving an oblong L shaped scar, one-half inch in one direction and two and one-half inches in another, approximately one-eighth of an inch wide.

Defendant admitted, in answer, that plaintiffs’ son was injured in the course of his employment, but denied that his injuries were as severe as alleged in plaintiffs’ petition and especially denied that their son is seriously and permanently disfigured.

There was judgment in the lower court in favor of plaintiffs for $5.00 per w'eek for 100 weeks under subsection (e) of section 8 of the statute; from which judgment defendant appealed.

Plaintiffs answered the appeal and asked that the judgment be amended so as to allow $13.83 per week, the amount sued for.

OPINION.

Plaintiffs’ minor son, who is 17 years of age, was employed by the defendant at a weekly wage of $21.28 and in the month of April 1925, while at work, was cut on the right side of the face, which cut left a scar.

There were only two witnesses called, plaintiff’s son, who was injured, and Doctor J. D. Gordon, who attended young Dickson shortly after the accident.

The witness Dickson did not attempt to describe the scar but described the wound which he received, as a cut starting at a point near the right eye close to. the end of the eye-brow and going down for about an inch and a half and turning to the left toward the right eye.

Plaintiffs offered in evidence a photograph of young Dickson showing that the scar is on a line between the outside corner of the right eye and the corner of the mouth, the distance from the main part of the scar to the corner of the eye being about one-half that from the scar to the corner of the mouth.

Doctor Gordon described the scar as follows:

“The scar is a lineal scar, extending from the upper 'border of the right eyebrow around the exterior arching of the eye closing down to about one-quarter of an inch above the middle of the cheek, that is, just above the malar bone.”

He says the scar will always remain there.

Counsel for defendant assign the following as errors in the judgment of the lower court:

“I. That under the terms of the ' act (paragraph (e) of section 8) plaintiff is not entitled to recover any compensation whatever for the reason that he is not ‘seriously, permanently disfigured about the face or head’.
“II. That the compensation granted by the lower court is excessive and unauthorized by law for the reason that the facial disfigurement is very slight and the compensation granted is out of proportion to the schedule set forth in the preceding paragraph (d).”

We are unable to ageee with counsel as to the first point. We think the court made no error in holding that the scar on. young Dickson’s face is a disfigurement which entitles him to compensation. According to Doctor Gordon it extends from the upper border of the right eye-brow around the arching of the eye down to one-quarter of an inch above the middle of the cheek. The scar is in a very prominent portion of the face and on looking at the photograph we observe that it is very noticeable.

A disfigurement, according to Webster, is “a change of external form to the worse”.

The scar mars and detracts from the natural expression of the face. It is such a disfigurement as to attract attention, as is disclosed by the photograph before us.

The district judge saw the young man and of course observed the scar and held that it is of such a nature as to make the case come under the statute. His opinion on that point has great weight with us.

However, on the second point, that is, as to the amount allowed, we cannot concur with him.

Subsection (e) of section 8 of the statute provides that in cases of this kind the court may allow

“such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in cases of specific disability above named”.

By reference to the statute it will noticed that under the schedule laid down, if this young man, who was receiving $21.28 per week, had lost his thumb he -Would have been entitled to 65% of his wages for 50 weeks or a total sum of $690.00; for the loss of an index finger, $414.36; for the loss of any other finger, $276.24; for the loss of a hand, $2071.80; and for the loss of an eye, $1381.20.

We think an allowance of $5.00 per week for 100 weeks or a total sum of $500 is out of proportion to the above specific schedule. It could hardly be said that a man should be allowed practically five-sevenths as much for a scar on his cheek as he would be allowed for the loss of an eye, and practically one-fourth as much as for the loss of a hand.

We think an allowance of $3.00 per week during 100 weeks would be proper in this case.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to allow plaintiffs compensation of three dollars per week during one hundred weeks and that as thus amended it be affirmed; plaintiffs to pay the costs of the appeal; all other costs to be borne by defendant.


text:
    No. 2511
    Second Circuit
    MARSHALL JONES v. LOUISIANA OIL REFINING CORPORATION R. J. Miller, Warrantor
    (November 7, 1925, Opinion and Decree)

      (Syllabus by the Editor1
    1. Louisiana Digest—Master and Servant —Par. 156.
    One who contracted to do a certain piece of work according to his own methods, engaged his teams and his drivers to do whatever hauling had to be done, but never knew what was to be hauled and where it was to be carried, the employer directing and controlling him and his employees, must be considered an employee and not an independent contractor under Section 6, Subsections 1 and 2, of the Workmen’s Compensation Law, Act No. 20 of 1914, as amended by Act 38 of 1918.
    2. Louisiana Digest—Master and Servant —Par. 156.
    An oil company, in order to produce oil must haul materials used in connection with that business. Therefore, an employee of one engaged to haul material for the oil company is doing work connected with and part' of the business of producing oil and within the Workmen’s Compensation Law, Act No. 20 of 1914.
    3. Louisiana Digest—Master and Servant —Par. 154, 156.
    Under Section 6, Subsections 1 and 2, of the Workmen’s Compensation Act, No. 20 of 1914, as amended by Act 38 of 1918, one who accepted employment under the act which creates an obligation on his part to indemnify defendant in case defendant should be condemned to pay compensation to one of his employees is a personal warrantor of the defendant under Article 379 of the Code of Practice.
    4. Louisiana Digest—Pleading—Par. 66; Master and Servant—Par. 160 (i).
    Under Article 384 of the Code of Practice, a warrantor of the defendant who resides out of the jurisdiction of the court is bound to appear and cannot successfully plead an exception to the jurisdiction.
    5. Louisiana Digest—Master and Servant —Par. 160 (i).
    Under Article 385 of the Code of Practice, where a court renders judgment against defendant, it must also render a judgment in favor of the defendant and against the defendant’s warrantor regardless of whether the warrantor resides within the jurisdiction of the court or not. This applies to. the Workmen’s Compensation Act No. 20 of 1914, Section 6.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    This is a suit brought by an injured employee under the Workmen’s Compensation Act, No. 20 of 1914, Section 8, Subsection 1 (c), as amended by Act 43 of 1922, and Section 6, Subsection 2.
    The defendant called in R. J. Miller, the warrantor, filing an exception to the jurisdiction of the court rationae personae, which was sustained.
    There was judgment for plaintiff and defendant appealed.

      Judgment amended and affirmed against the defendant and further judgment for the defendant against R. J. Miller, warrantor, and dismissing the exception of the jurisdiction filed by the warrantor.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellee.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

The defendant is engaged in the business of drilling, maintaining and operating oil wells in this state. It maintains a general warehouse at Haynesville where it keeps all' ’ kind of oil well machinery and supplies which are distributed as they are needed throughout the territory in which it operates. It does not maintain wagons or teams or truck for the purpose of distributing these materials, but it employed R. J. Miller, who owned wagons and teams, to do this hauling for it. Miller was to furnish all the teams the defendant needed and to distribute machinery and supplies as directed by the manager of the defendant company. Mr. P. T. Mize, defendant’s production superintendent, testified that the hauling was done under his supervision. Mr. Burkett was in charge of the warehouse, and according to the testimony of Mr. Mize “was to load out teams and fill all orders we gave him for supplies out of his warehouse”.

Mr. Burkett directed the driver of the team where to carry the supplies.

Miller .was paid $12.00 a day for a team and driver and he paid the driver. His teams were not engaged by the week or month but at such times as the defendant company had hauling to do. They were not engaged to haul any specific kind or quantity of supplies but such as might be directed to be moved by the defendant. If the defendant had work for a whole day Miller was paid $12.00, and if for only half a day he was paid $6.00.

Plaintiff, Marshall Jones, was employed by R. J. Miller to drive one of his teams at a weekly wage of $21.00.

While attempting to load a large flywheel it fell on his leg and broke it just above the ankle. He is still partially disabled, but admits that he is now able to earn $4.00 per week.

He brings this suit against the defendant company for sixty per cent of the difference between his wages at the time he was hurt and what he is now able to earn, uhder Clause (c) of Subsection 1 of Section 8 of Act 20 of 1914, as amended by Act 43 of 1922, and seeks to hold defendant, Louisiana Oil Refining Corporation, for his compensation under Subsection 2 of Section 6 of the said act.

There is no dispute as to plaintiff’s disability, nor as to the amount which he is entitled to recover; but defendant, Louisiana Oil Refining Corporation, denies liability on the ground that plaintiff was not employed by it and that it had no control, supervision or authority over him nor over the manner or method in which he did his work, and that plaintiff was employed by R. J. Miller; ' that said Miller was an independent contractor under the laws of this state, and that defendant is in no way responsible to the employees of Miller.

In an amended and supplemental answer defendant adopted all the allegations of its original answer and the prayer and alleged that the accident did not arise out of or in the course of the business in which defendant was engaged; and in the alternative alleged that if the court should hold it responsible to plaintiff for compensation, it should be allowed to call R. J. Miller, who employed plaintiff, as a defendant in the case in order that it might have judgment against Miller under Subsection 2 of Section 6 of the Compensation Act as amended by Act 38 of 1918.

There is no merit in the contention that Miller was an independent contractor.

In the case of Dick vs. Gravel Co., 152 La. 993, 95 South. 99, the court quoted approvingly the following from 25 Cyc. 1546:

“An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Generally the circumstances which go to show one to be an independent contractor, while separately, they may not be conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the employment of assistants by the employee who are under his control, the furnishing by him of the necessary materials and his right to control the work while it is in progress except as to the results.”

In the case at bar, Miller did not contract to do a certain piece of work according to his own methods. He engaged his teams and his drivers to defendant to do whatever hauling it, had to be done. Miller never knew what was to be hauled nor where it was to be carried. Not only that. The defendant company directed and controlled Miller and his employees in what they did. It specified not only what was to be hauled but where to deliver it.

It is clear, therefore, that Miller was not an independent contractor.

Defendant next urges that the accident did not arise out of or in the course of the business in which it was engaged.

In its answer it admitted “that it is engaged in the business of producing and refining oil”.

The testimony shows that defendant company was operating in the Haynesville, Homer and Cotton Valley fields; that it kept its warehouse at Haynesville where its supplies were stored, and that the materials hauled were “gas engines, flywheels, pumps and things connected with the oil fields”.

In order to produce oil it had to reconstruct and repair oil wells. The materials hauled by Miller were used in connection with that business.

Such work comes within the provisions of the statute.

See Durrett vs. Woods, 155 La. 533, 99 South. 430.

Plaintiff seeks to hold defendant liable under Section 6 of Act 20 of 1914, as amended by Act 38 of 1918, Subsection 1 of which reads as follows:

“That where any person (in the section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation, or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or his dependent any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him; and where the compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.”

It is not seriously contended that defendant is not liable to plaintiff under this section of the statute, but defendant urges its right to call Miller in as a defendant so that it may have judgment against him for whatever amount it may be adjudged to owe plaintiff under Subsection 2 of Section 6 of the act which reads as follows:

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

R. J. Miller resides in Webster parish. He tendered an exception of the jurisdiction of the court rationae personae, which exception was referred to the merits of the lower court.

Miller then filed answer, reserving his rights under his exception to the jurisdiction of the court. In his answer he set up that defendant had no right to call him into the case but:

“In the event that all the foregoing exceptions should be overruled, he answers the allegations as follows: ‘He shows that the allegations of fact as set forth in the petition of Marshall Jones are true and correct and he adopts and affirms the same as his answer herein.’ ”

He prays that the exceptions filed by him be sustained and, in the event they are not sustained, that:

“On trial hereof there be judgment against the Louisiana Oil and Refining Corporation, and that all demands as against him, the said R. J. Miller, be rejected.”

The case went to trial on its merits under these pleadings.

Miller took the stand as a witness in his own behalf and gave testimony substantially in accord with that given by the plaintiff concerning the work and the accident.

The court granted judgment in favor of plaintiff and against defendant, Louisiana Oil Refining Corporation, as prayed for, but sustained the- exception to the jurisdiction of .the court as to Miller.

ON THE CONSTITUTIONALITY OF SECTION 6

Defendant filed a motion for a new trial in the District Court on the grounds that the judgment was contrary to the law and the evidence and that:

“Section 6 of Act No. 20 of 1914, as amended by Act 38 of 1918, is unconstitutional, null and void, for the reason that the act embraces more than one object, in that in said Section 6 it attempts to make a person liable for compensation for injuries to one'not employed by him. * * *”

The question of the unconstitutionality of the act was not raised in the pleadings nor was it urged on the trial of the case. Defendant has raised the question in a motion for a new trial.

The unconstitutionality of a law is a special plea and must be made an issue in the case. See Code of Practice, Article 327.

See State of Louisiana vs. Widow St. Pomes, 26 La. Ann. 753 (on rehearing).

The motion for a new trial on that ground was properly overruled by the trial court.

The Louisiana Oil Refining Corporation ’ has appealed. • '

OPINION

Subsection 2 of Section 6 of the Compensation Act provides that when a principal is liable to pay compensation under the act, he shall be entitled to indemnity from any person who would have been liable to pay compensation to an employee independently under this section and shall have a cause of action against him therefor.

Miller accepted employment under the provisions of the act and thereby became a warrantor to defendant.

There are two kinds of warranty under the Code of Practice, real and personal. Personal warranty is that which takes place in personal actions. It arises from the obligation which one has contracted to pay the whole or a part of the debt due by another to a third person. Code of Practice, Article 379.

As stated, Miller accepted employment under the act, which creates an obligation on his part to indemnify defendant in case defendant should be condemned to pay compensation to one of his employees. He is therefore a personal warrantor of defendant under Article 379 of the Code of Practice.

Article 384 of the Code of Practice provides ;

“Court in which main action brought has jurisdiction over warrantor, exceptions and defenses of. The warrantor thus cited is bound to appear before the court in which the principal demand has been instituted, even when he resides out of its jurisdiction, in order to defend the suit for the defendant; he may plead every exception in defending the cause which the defendant himself might have pleaded, even such as are personal to such defendant.”

Under this article of the Code the fact that Miller resides out of the jurisdiction of the court does not relieve him of the duty to appear. He is bound to appear, even though he resides out of the court’s jurisdiction. Therefore, the lower court in sustaining the exception to the jurisdiction erred.

The ease went to trial with Miller before the court under his answer. His answer is virtually an admission of his liability to plaintiff for any injury which he may have sustained.

Miller was engaged in a hazardous occupation and employed plaintiff as a teamster.

Durrett vs. Woods, supra, 155 La. 533, 99 South. 430.

Miller was before the court and made, or had the opportunity to make, whatever defense to plaintiff’s action he saw fit. There is, therefore, no necessity for remanding the case for further trial or judgment. This court has before it the whole case on its merits as to the liability of all parties concerned, and there' is no reason why it should not render such judgment as the lower court should have rendered.

As already stated, there is no dispute as to plaintiff’s injuries, his disability at the time of the trial, or the amount which he should recover.

Article 385 of the Code of Practice provides :

“If the defendant is cast in the action, the judge, when he gives judgment against such defendant, must render at the same time a judgment in favor of the defendant against his warrantor, for whatever indemnity may be due to such defendant.

Under this article it was the court’s duty to render judgment in favor of defendant, Louisiana Oil Refining Corporation, against R. J. Miller for whatever amount the court allowed in favor of the plaintiff.

The court rendered judgment in favor of the plaintiff and against the defendant for compensation of $12.60 per week during disability, not to exceed 300 weeks. In fixing the compensation at $12.50 per week the court evidently overlooked the fact that plaintiff alleged in his petition that he was able to earn $4.00 per week. When injured, he was earning $21.00 per week. He is entitled, under Act 43 of 1922 (the act under which this suit is brought), to sixty per cent of the difference between that due on May 18, 1925, with legal interest on was able to earn thereafter, or the sum of $10.00 per week.

Counsel for defendant, Louisiana Oil Refining Corporation, says that his client is entitled to credit for the amount which Miller has contributed or paid to plaintiff and we think this is correct.

Testimony admitted without objection ‘shows that Miller has advanced to plaintiff some amounts and has furnished him a house to live in worth $2.50 per week. It is not very definite, however, just how much he has advanced him. The plainitff testified that Miller had advanced him about $35.00 per month and a house to live in worth $2.50 a week. He further states that what has been advanced to him would amount to about $7.50 per week in board. We do not understand that he meant to say that Miller had advanced him $35.00 per month in addition to board. If he advanced him $35.00 per month and the house, which was worth $2.50 per week, the total is about $45.00 per month.

We have found that plaintiff is entitled to $10.20 per week, which is equivalent to $44.20 per month, counting four and a third weeks to the month. Therefore, up to the date of the trial, the plaintiff had been paid by Miller approximately the full amount of his compensation. We think, therefore, it is proper to allow the defendant, Louisiana Oil Refining Corporation, credit on the judgment for compensation paid the plaintiff up to the date of the trial, which seems to have been on May 11, 1925.

The court found, and we think correctly, that the first payment was due on January 24, 1924. From January 24, 1924, to May 11, 1925, is 67 weeks. Defendant should, therefore, pay plaintiff compensation during disability not beyond 300 weeks, less 67 weeks already paid by Miller, the first payment to be paid by defendant being decreed due on May 18, 1925, or one week .after the trial. Whether Miller has made payments and allowance to plaintiff since the trial, we, of course, have no means of knowing; but if he has, defendant is entitled to credit for that also, and its right to make proof on that point is reserved.

For the reasons assigned it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Marshall Jones, and against the defendant, Louisiana Oil Refining Corporation, for compensation at the rate of $10.20 per week during plaintiff’s disability not beyond 300 weeks, dating from January 24, 1924, subject, however, to credit for compensation paid up to May 11, 1925, or a period of 67 weeks, the first payment to be made under this judgment being decreed due on May 18, 1925, with legal interest on all payments from the date due until paid.

It is further ordered, adjudged and decreed that the judgment of the lower court sustaining the exception to the jurisdiction of the court rationae personae filed by R. J. Miller be reversed and that said exception be overruled.

And it is further ordered, adjudged and decreed that the defendant, Louisiana Oil Refining Corporation, have judgment against and recover from R. J. Miller the sum of $10.20 per week during the disability of the plaintiff, Marshall Jones, not beyond 300 weeks, dating from January 24, 1924, subject, however, to credit for compensation paid up to May 11, 1925, or a period of 67 weeks, the first payment to be made under this judgment being decreed due on May 18, 1925, wih legal interest on-all payments from the date due until paid, and all costs of this suit, except costs of appeal, which are to be paid by plaintiff.


text:
    No. 1781
    Second Circuit
    W. B. SMITH v. H. C. TURNER
    (October 21, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Payment—Par. 1Ó!
    The plea of payment admits the existence of the debt and throws upon the defendant the burden of proving payment.
    2. Louisiana Digest—Payment—Par. 20.
    If the defendant who pleads payment as a defense to a debt proves payment of a part only he will be given credit for the amount proven paid.
    Appeal from Second Judicial . District Court of Louisiana, Parish of Webster, Hon. J. E. Reynolds, Judge.
    This is a suit to recover an amount due on an open account. The defense was payment.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Drew and Drew, of Minden, attorneys for plaintiff, appellee.
    Lee and Lindsey, of Minden, attorneys for defendant, appellant.
   ODOM, J.

This is a suit to recover the sum of $196.34 alleged to be due on open account for goods, wares and merchandise purchased by defendant from Richie Mercantile Co., Inc., between January, 1920, and January, 1921.

It seems that after the account was made the Richie Mercantile Co., Inc., was adjudged a bankrupt and that its assets were sold at Receiver’s sale, at which sale plaintiff herein purchased this account.

Defendant, in answer, denied any indebtedness to plaintiff but admits that between January, 1920, and January, 1921, he purchased certain goods from the Richie Mercantile Co., Inc., as alleged, and he further farm produce delivered by defendant to especially alleged, in answer, that

“That part of said goods, wares and merchandise delivered to him by Richie Mercantile Company, Incorporated, were in payment of work and labor performed by his minor son, Alvin Turner, for the said Richie Mercantile Company, Incorporated, between January, 1920, and January, 1921; he further shows that any and all balance due for said goods, wares and merchandise was paid in cash to said corporation or in said corporation for its use.”

There was judgment in favor of the plaintiff for the full amount sued for, less a credit of $75.00.

Delendant appealed, but has made no appearance in this court either to file a brief or to argue the case orally.

The plaintiff answered the appeal, asking that the judgment be amended so as to allow the full amount sued for.

OPINION.

The account sued on was made with the Richie Mercantile Co., Inc., which concern was adjudged a bankrupt and its assets sold.

This account was purchased by the plaintiff herein.

The defendant, in answer, admitted that he had purchased goods, wares and merchandise from the Richie Mercantile Company, Inc., but plead payment of this account.

The plea of payment admits the existence of the debt and throws upon the defendant the burden of proving payment.

Doreino Landry vs. Delas, Lorio & Co., 25 La. Ann. 181; Diggs, Hobson & Co. vs. Parish, 18 La. 6; Jones vs. Bishop; 12 La. 398.

The defendant testified in his own behalf. He said that he had purchased goods from the Richie Mercantile Co., Inc., and had opaid cash for them in a great many instances but he 'did not say that he had paid cash for items on this account. He testified that between January, 192Q, and January, 1921, the period over which the account run, he had delivered to said company produce, such as butter, eggs and vegetables, for which he got no credit. He was unable to state how much of each he had delivered or the price but estimates that the value thereof was about $75.00.

He and his son testified that the son worked for the Mercantile Company as a clerk on Saturdays and legal holidays over a period of about five months, and' they thought that all the time he had put in would amount to about two months.

There was no agreement as to how much the son was to be paid but they value his services at about $75.00 a month. This, we think, is excessive, in view of the fact that the youth was only 18 years old and had had no previous experience as a clerk.

The defendant has failed to make the proof of these payments as definite as should be, but there is no ctuestion but that he is entitled to credit for some amount on the account.

The district judge before whom the case was tried and who saw and heard all the witnesses, reached the conclusion that the defendant should have credit for $75.00. We cannot say that he manifestly erred.

The judgment appealed from is affirmed.


text:
    No. 1916
    Second Circuit
    BANK OF COUSHATTA v. SAM F. WIMBERLY AND MRS. T. R. WIMBERLY
    (October 21, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    I. Louisiana Digest—Evidence—Par. 208; Bills and Notes—Par.' 217.
    Under the Code of Practice, Article 325, and Civil Code, Article 2245, if the defendant denies the signature to a note the plaintiff must prove the genuineness of the signature either by witnesses who have seen the defendant sign or declare that they know it to be his signature, or prove by experts or by comparison of the writing.
    Appeal from First Judicial District Court of Louisiana, Parish of Red River. Hon. J. W. Jones, Jr., Judge.
    This is a suit on a promissory note against two defendants alleged to have signed it. One defendant, Mrs. T. R. Wimberly, denied that she signed the note.
    There was judgment for defendant, Mrs. Wimberly, against the plaintiff.
    Plaintiff appealed.
    Judgment affirmed.
    Nettles & Bethard^ of Coushatta, attorneys for plaintiff, appellant.
    S. R. Thomas, of Coushatta, attorney for defendants, appellees.
   REYNOLDS, J.

This is a suit on a promissory note purporting to have been signed by the defendants.

The defendant, Sam. F. Wimberly, made no defense and judgment was rendered against him by' default.

The defendant, Mrs. T. R. Wimberly, answered, denying that the signature on the note was hers.

There was judgment rejecting plaintiff’s demand as to her and plaintiff appealed.

The only witnesses that testified as to the genuineness of the signature were W. W. Holley and Mrs. T. R. Wimberly herself.

Holley testified, page 4 of the evidence:

“Q. Did you see Mrs. Wimberly sign this note?
“A. No.

Page 5:

“Q. Would you say that was her signature or was not?

Page 6:

“A. I would not swear that is Mrs. Wimberly’s signature.
“Q. You would not swear to it?
“A. No, sir.
“Q. Do you know that she signed the original note?
“A. No, I do not; Mr. Benton handled the transaction.

Page 13:

“Q. You say, Walter, that you won’t swear that is Mrs. Wimberly’s signature?
“A. I didn’t see her sign it.
“Q. You were'not familiar enough with signatures—and are not—to sWear whether it is her signature?
“A. No.
“Q. You will not swear that?
“A. No.
“Q. You cannot positively swear that is Mrs. Wimberly’s signature?
“A. I wouldn’t swear that that is her signature, no, sir.”

Mrs. Wimberly testified, pages 14 and 15:

“Q. Mrs. Wimberly, you are the party in this suit being sued by the Bank of Coushatta on an alleged note—a note alleged to have been signed by you?
“A. Yes, sir.
“Q. I hand you note attached to the petition, filed in evidence marked ‘Plaintiff 1’, and I will ask you if you signed this note?
“A. No, sir, I did not sign it.
“Q. You are positive?
“A. I know I did not; I never seen the note; this is the first time.
“Q. Did you ever authorize anyone to sign for you?
“A." No, sir.
“Q. Are you positive about that?
“A. Yes, sir.
“Q. That is not your signature?
“A. No, sir.
“Q. And you did not authorize anyone to sign for you?
“A. No, sir.
“Q. Did you sign the original note that was given and taken up?
“A. No, sir.”

The law of this case is fully covered by the provisions of the Code of Practice, Article 325, which reads:

“If the defendant deny his signature in his answer, or contend that the same has. been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the- defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write, and sign his name. But the proof by witnesses shall not exclude the proof by experts or by a comparison of the writing, as established by the Civil Code.”

Ánd Article 2245 of the Civil Code, which reads:

“If the party disavow the signature, or the heirs or other representatives declare that they do not know it, it must be proved by witnesses or comparison, as in other cases.”

And the decision of the Supreme Court in the case of Huddleston vs. Coyle, 21 La. Ann. 148, the syllabus of which reads:

“Where the signature of a party to a promissory note is specially denied under oath, the burden of proof falls upon the holder, who will be bound to produce such evidence as the law requires to enable him to recover on the instrument. C. P., Art. 325.”

Under the above quoted evidence it is clear that Mrs. Wimberly did not sign the note sued on, and in suits on promissory notes the courts are governed by fixed rules of law, plainly laid down in the Code of Practice and Civil Code, and cannot deviate therefrom.

The judgment of the District Court is correct and accordingly is affirmed.


author: O'DOM, J. REYNOLDS, J.

text:
    No. 2477
    Second Circuit
    GILBERT C. WELLS v. STANDARD PIPE LINE COMPANY, INC.
    (November 4, 1925, Opinion and Decree.)
    (December 17, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625; Master and Servant—Par. 160 (l).
    The finding of the trial court, in a suit for compensation under Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 216 of 1924 as to the character of disability of injured employee not being manifestly erroneous is affirmed. .
    ON APPLICATION FOR A REHEARING
    2. Louisiana Digest—Master and Servant _L-Par. 160 (I).
    The appellate court is guided solely by what is contained in the record in a workmen’s compensation ease under Act 20 of 1914 and will not remand the ease for a new trial to obtain district judge’s opinion in writing.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit brought by an injured employee for compensation under Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 216 of 1924.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellant.
    T. M. Milling, F. L. Hargrove, of Shreveport, attorneys for defendant, appellee.
   O'DOM, J.

This is a suit under the Workmen’s Compensation Act. The plaintiff was employed by the defendant to work on a pipe line and on December 29, 1924, he attempted to move what is called a “horse” which was used for the purpose of lifting and lowering the iron pipe, when he strained or sprained his back in the lumbar region.

He alleges that the ligaments and muscles were strained, torn and lacerated, and that the bony structure of the back was deranged and left without proper support and apposition, and that his nervous system has been deranged and, impaired, and that as a result of said injury he is suffering total disability to do work of any reasonable character; and he claims compensation at 65% of his wages for 400 weeks under clause (b) of Subsection 1 of Section 8 of Act 216 of 1924.

Defendant, in answer, admitted the employment and admitted that plaintiff was injured, but defends this suit on the ground that plaintiff has fully recovered and that he has been paid all the compensation to which he is entitled.

There was judgment in the lower court rejecting plaintiff’s demand, from which judgment plaintiff has appealed.

OPINION.

The testimony shows that while plaintiff was at work for the defendant assisting in lowering or repairing a pipe line he attempted to lift a heavy weight and that in the course of his worh he complained that he had strained his bach. He reported that fact to the foreman of the gang who suggested that he go to the camp and report to a physician.. Plaintiff walhed some distance to the camp and after remaining there for a short time went to his home in an automobile. He subsequently called a physician who strapped his bach with adhesive tape. It seems that this tape remained on his bach for a weeh or such a matter when it was removed and that plaintiff still complained that his bach hurt to some extent. Shortly thereafter he made a trip to Texas in an automobile driven by another party. He says that after reaching Texas he made arrangements to worh for an oil refining company there in its machine shop and that he was to begin worh at a certain time but received a telegram from the defendant company requesting him to return.

Upon his return he was requested to submit to an examination by a physician of Shreveport. It seems that he was examined by a physician here and was then ashed to report to the office of the attorney of the defendant company, but instead of doing this he filed the present suit.

With reference to his condition, he testified that on the occasion above mentioned he strained his bach or pulled a muscle and that he is now unable to worh because his bach hurts. He says that sometime after the accident he attempted to paint some chairs for his mother and that his bach “pulled loose again” and that subsequently while washing his automobile it gave way for the third time.

According to his testimony he felt able to go to worh in Texas in a machine shop, although he testifies he was not told what hind of worh he was to do; and he says also that he offered to go bach to worh for the defendant company to prove that his bach was all right, but that the defendant company refused to give him worh.

Plaintiff lives at Lecompte, Louisiana, and after he returned from Texas and, as we understand, after his suit was filed, he returned to Lecompte where he has remained ever since.

Some four or five witnesses were called by defendant who testified that they had frequently seen the plaintiff play pool at Lecompte and that they noticed ño disability whatever in his ability to lean over the pool table and pich up pool balls from the floor and that according to appearances his bach is normal.

Doctor C. H. Cassity examined the plaintiff on March 23, 1925, and says that he got a complete history of the case from plaintiff. He says that his examination showed that the plaintiff bent forward with a great deal of difficulty; that the lumbar muscles jumped and jerhed; and that the plaintiff suffers pain when he bends his bach, and that his conclusion was, from the history of the case as gotten from the •plaintiff, that he had a severe sprain of the lumbar muscles and ligaments.

On being ashed as to the probability of ' recovery, he said:

“Well it is lihe all of those cases, pretty much—It is problematical, they depend upon the severity of the sprain and secondary upon the bach as to whether it was properly treated in the beginning and whether he was hurt there several other times.”

He says, further, that recovery will depend largely on the treatment plaintiff receives and that if the man’s bach had been properly treated he should have recovered within four months- after the accident.

Doctor E. L. Sanderson examined the plaintiff on the day of the trial and says:

“About the only thing that I could find in an objective way is that in bending over there is a quivering of the muscles in the back which indicates that they are sprained or sore or in some way the nerves are interfered with.”

He says that if plaintiff’s story is true, together with what he found

“I presume that there was probably some straining of the erector muscles of the back.”

And he further says that there is a probability that some of the nerve fibres'were injured. He says that in cases like this there is a possibility of injury through life. On being asked for his opinion as to plaintiff’s condition, he stated that it is very difficult to give an opinion in a case like this and that if the plaintiff's statement is to be taken as true he has a back which will be easily strained in the future; and he was asked:

“Would such an injury to the back suggest that he should not attempt to do hard manual labor?”

And he answered:

“I would not be positive about that; 1 would just say that in attempting to do hard manual labor, if his back became strained again then he should certainly not attempt to do any more. It would be a matter of testing it to try it out and see,”

On further examination he testified that if a man’s back is actually sprained he cannot bend over. He says that he caused the plaintiff to stoop and to bend his back and that aside from what the plaintiff told him he would not believe that plaintiff had an injury to amount to anything.

“From my examination without the history, I would not judge that there was a great deal the matter with him.”

And he further testified that, leaving out what the man says, from his examination of him he would say that he is now able to work.

Doctor Sanderson made it perfectly plain that there is practically nothing to indicate that the plaintiff’s back was injured or that he is now unable to do manual labor, except what the man himself states.

Doctor S. 0. Barrow made an x-ray photograph of plaintiff’s back and testified that his spine is normal.

Doctor H. C. Jones, who treated plaintiff after the injury and who had recently made another examination of him, testified that there is nothing the matter with plaintiff.

Doctor Jones, along with others, testified that he had seen the plaintiff playing pool and that he bent his back and moved his body in a perfectly normal manner.

According to the testimony of the physicians the condition of plaintiff’s back even as testified to by him is not such as to produce disability to labor. It is their opinion that at most his back will be more easily strained in the future.

The judge of the lower court saw the plaintiff and heard him testify and heard all the other witnesses, and his conclusion on the question of fact has great weight with us. We cannot say that he manifestly erred in his judgment.

Therefore, for the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed at plaintiff’s cost.

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

Plaintiff bases an application for rehearing largely on the ground that this court in its opinion gave great weight to the findings of fact of the district judge as to plaintiff’s condition and contends that the district judge in rendering his oral decision stated:

“In this case I think the plaintiff’s condition is about as reported by Dr. Sander-son, that is, he has a back that is in such shape that it will pull loose or is easy to re-strain and hurt over. I think such a case is not covered by the compensation statute.”

The district judge’s reasons not being in writing, they cannot be considered by us, for we must be guided solely by the record as contained in the transcript.

Plaintiff insists that the case should be remanded for a new trial and contends that under Section 1 of Article VII of the Constitution of 1921, he will request and secure a written opinion from the district judge.

Plaintiff has had “his day in court” and having failed to obtain a written opinion from the district judge we do not feel warranted in remanding that case for a new trial.

Authority: Daniels vs. Shreveport P. & R. Corporation, 151 La. 800, 92 South. 341.

A rehearing is therefore refused.