text:
    No. 2250.
    Second Circuit Appeal.
    MRS. NEAL JOHNSON AND JESSIE JOHNSON v. MISSOURI PACIFIC RAILWAY CO.
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 42.
    The burden of proof is on the carrier to prove the absence of negligence and not on the passenger to prove negligence where it is shown that a contract of carriage has not been fulfilled. (Civil Code, Arts. 2315 and 2232.)
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 25, 34.
    Where a sudden jarring of the caboose on a freight train threw the passengers to the floor, it is evidently more violent and severe than the jolting and bumping incident to the careful handling of a freight train. The railroad, having contracted to carry passengers and provide seats for them in a caboose is negligent if it so handles the train that the passengers are thrown out ■ of the seats.
    Appeal from Ninth Judicial District Court of Louisiana, Parish of Madison. Hon. F. X. Ransdell, Judge.
    This is a damage suit for personal injuries.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    E. K. Boney, of Monroe, attorney for plaintiff, appellee.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

Neal Johnson and Jessie Johnson are wife and husband, respectively.

They brought suit against the defendant company to recover- damages for personal injuries alleged to have been sustained by the wife, Neal Johnson, while she was a passenger for hire on one of defendant’s freight trains.

They ask judgment in favor of the wife for $5,000.00 and in favor of the husband for $137.50.

As a cause of action they allege that on November 16, 1923, while plaintiff, -Neal Johnson, was a passenger on one of defendant’s trains she was:

“* * * violently thrown from her seat and her right arm fractured, sprained, strained and bruised and otherwise bruised and wounded in her person.”

and that at the time she was pregnant and as a result of the fall she suffered a miscarriage, causing her to suffer and be sick and confined to her bed, unable to attend to her household duties, and that her health has been permanently injured.

She asked judgment in her own behalf in the sum of $5,000.00 for her pain- and suffering and for the miscarriage.

Her husband, Jessie Johnson, alleges that he spent for medical and surgical attention and medecine for his wife and for cooking and washing during the time of his wife’s illness the sum of $37.50, and that by reason of the loss of the services of his wife and her companionship and. society he has been injured ,and damaged in the sum of one hundred dollars and he asks judgment in his favor for $137.50.

Answering, the defendant denied any liability whatever and set up that the train on which plaintiff was a passenger was a freight train, engaged principally in the carrying of freight “and sometimes carries passengers in the caboose attached to said train” and that if the plaintiff was at the time of the injury riding on defendant’s train she was traveling in said caboose and that she well knew that it was not provided with such accommodations as are provided for the comfort of passengers on regular passenger train; that she knew that such trains cannot be handled easily and controlled so as to be free from jarring and shaking; and that she assumed the reasonable and ordinary risks incident to such modS of travel; and in the alternative, in case it should be found that plaintiff did receive the ' injuries alleged, then that such injuries were due solely to the negligence of the plaintiff in not keeping her seat and in not using such ordinary means as should be used by passengers for their own safety; and if the court should find that the defendant’s employees were negligent in operating the train, then that through her own carelessness and negligence she contributed to the accident. And it pleads both assumed risk and contributory negligence.

There was judgment in the lower court for Neal Johnson, the wife, in the sum of $250.00 for her pain and suffering, and for Jessie Johnson in the sum of $153.75.

Defendant has appealed.

Plaintiff answered the appeal, asking that the judgment be amended so as to allow Neal Johnson, the wife, $350.00.

OPINION.

The defendant company owns a line of railroad running from north to south through the Parish of Madison on which it operates a mixed train for the carrying of both freight and passengers. At times it carries the passengers in a regular passenger coach attached to its freight train and at other times they are carried in a caboose.

On the occasion of the alleged accident and injury the passengers were being carried in 'a caboose attached to the rear of a train composed of an engine and coal car, 44 freight cars, 39 of which were loaded, and a caboose. The trainload was very heavy, as a number of the cars were loaded with logs.

There were in charge of the train on this occasion a conductor named King and an engineer named Drennigan, and one or two other employees holding minor positions. Only one of these, King, was called as a witness. He testified that he had been connected with the operation of trains for 23 years, two years as an engineer and 21 years as a conductor. He says that he had known the engineer, Drenhigan, for a number of years and that he is' a very competent, careful handler of trains.

The caboose in which the passengers were riding on this occasion had two long seats, one on each side against the wall running lengthwise.

There were three colored passengers— the two plaintiffs and a four-year-old child, and two white passengers, Mr. I. B. Beard, who was called as a witness, and another man who we believe is a non-resident and was not called.

The colored people were seated on the. seat on the east side and the white passengers on the west side of the caboose.

The plaintiffs live in Tallulah and on the morning of November 16, 1923, they went on defendant’s train to Quimby, a station south of Tallulah, and spent the day.

In the afternoon of that day they took passage at Quimby on defendant’s mixed train to return to Tallulah, and the accident complained of took place somewhere between Quimby and Tallulah.

Plaintiffs claim they purchased round-trip tickets at Tallaluh in the morning, but that is disputed by Mr. Gilbert, the agent. But it is immaterial whether they had round-trip tickets or. one-way tickets; it is undisputed that at the time the alleged accident took pla'ce they were passengers for hire, they having purchased tickets for their passage in the usual course.

At some place between Quimby and Tallulah, not definitely located, a sudden jarring of the caboose threw both the woman, Neal Johnson, and her husband, Jessie Johnson, from their seats to the floor. Whether it was a jerking of the caboose forward or a knocking of it backward is not clear. The testimony of the plaintiff would indicate that there were both a knocking of it backward and a jerking of it forward. Mr. Beard says: the “shake up” took place when the train stopped. None of the witnesses seem to have a very definite idea as to just how it happened, but whatever the motion it was very violent.

Plaintiffs were both seated. They were thrown out into the aisle and then To the floor. Mr. Beard braced himself with his left foot and was not hurt. The other white passenger had his arm thrust through a window and was hurt, though to what extent is not stated, probably but little. But it must have been an unusually severe and violent jolting and jerking of the caboose and it was evidently out of the ordinary. It was evidently more violent and severe than the jolting and bumping which are usual and incidental to the operation of freight trains while being carefully handled. We are convinced of this for more than one reason. These people were literally thrown out of their seats; they were not merely thrown over, they were hurled out of their seats into the aisle or toward the center of the caboose.

The very fact that the railroad company contracts to carry passengers in a caboose and provides seats for them shows that it is contemplated that the caboose will be so handled, that its passengers can sit in the seats; and the fact that passengers do ride in cabooses shows that ■they are so handled that the seats can be safely occupied. Otherwise, no one would take passage on them.

If the caboose, in this instance, was handled as carefully as it could be, then it is impossible for passengers to occupy them with any degree of safety, and if they cannot be carried safely ' the carriers would not contract to safely carry and deliver them; and people would not be willing to hazard limb and life by accepting passage on mixed trains.

Travel on mixed trains is more hazardous than on passenger trains, and persons who take passage on them assume the extra risk, but the fact that railroad companies contract to transport passengers safely, and this they do when they accept them, shows that they expect to handle their trains in such a way as not to endanger those whom they Contract to carry.

As stated, if the trains are to be handled so that passengers cannot stay in the seats provided for them, it is manifestly Impossible to make them safe.

Furthermore, we think the testimony of Mr. Beard shows that this was an unusual “shock”, although he does not say so. He is a passenger on this train once or twice a week and he had never seen any one thrown from the seats before. We think that the very fact that these passengers were seated and were thrown out of their seats and that one passenger had his arm thrust through a window and hurt and that one passenger who habitually rides these mixed trains had to brace himself in order to keep from being hurt make out at least a prima facie case of neg- ' ligence on the part of the carrier sufficient at least to throw the burden on the defendant to prove the absence of negligence.

While it is true, that travel on mixed trains is not as safe as that on- passenger trains, it cannot be said that with the careful and prudent handling of freight trains passengers cannot sit on the seats provided for them.

In the case of Haynes vs. La. Ry. & Nav. Co., 140 La. 1019, 74 South. 538, the court said:

“The burden of proof is on the carrier to prove the absence of negligence, and not on the passenger to prove negligence, where it is shown that a contract of carriage has not been fulfilled.”

Citing a long list of authorities.

See also: Hopkins vs. N. O. Ry. & L. Co., 150 La. 61, 90 South. 512.

In that case it was held that a carrier is bound to exercise the strictest diligence in receiving a passenger, conveying him to his destination, and setting him down safely that the means of conveyance employed and circumstances of the case will permit.

In the case at bar, plaintiffs were passengers for hire on defendant’s train. The contract did not make the defendant an insurer of their safety but it did bind defendant to make ' them as safe as passengers could be made on a mixed train prudently and carefully handled, and the plaintiffs have shown that they made proper use of the appliances and accommodations furnished them and that they were not transported safely but were injured.

The burden was' on defendant to show that its train on that occasion was handled as prudently and carefully as trains of that kind can be handled and that they were made as safe as passengers can be made on ' mixed trains operated under similar circumstances. The defendant has failed to discharge that burden.

The conductor, King, was called as a witness by defendant and was asked to explain just what the operation is in stopping a freight train, and he said: “In stopping a freight train there is always more or less some jarring on the rear end on account of the slack in the train. The air takes on the head cars first and the slack runs out and the train runs down until it gradually stops.”

And he was asked:

“Q. Is it possible to stop a freight train with the use of air brakes on level country without more or less concussion or shock to the rear end?”

And he said:

“A. No, sir; not that I know of, that long.”

And he was further asked:

“Is it usual for passengers to be thrown off .their seats in the caboose?”

And he said:

“Yes, sir, lots of times.”

But he does not say that they would be thrown off their seats if the train were prudently and properly handled.

If it be true, and we doubt it, that people are frequently thrown from their seats on this road, it by no means follows that such accidents would occur under proper management of the train.

Defendant pleads contributory negligence and says in brief:

“A passenger riding on a freight train who neglects to exercise ordinary and reasonable care to guard against jerks and jolts is guilty of contributory negligence, which bars his recovery.”

And cites a long list of authorities and quotes from Elliott on Railroads, section 2476, page 204:

“The nature of the train may also have an important bearing upon the question of contributory negligence. As the passenger upon. a freight train assumes the risks incident to that means of conveyance and must take notice thereof, he must exercise ordinary and reasonable care to guard against injury from such risks and must not voluntarily take a position where he is likely to be injured by a sudden jerk of the car resulting from the taking up of slack in the ordinary way or the like.”.

But the plaintiff in this case did not “voluntarily take a position where she is likely to be injured by a sudden jerk of the car resulting from the ordinary taking up of slack in the ordinary way or the like”.

She went into the caboose, took a seat and remained there until thrown out by a sudden, violent jerking or jarring of the caboose.

Counsel points out that plaintiff could read and failed to take note of the warning posted on the walls. That is true, but if she had read them and heeded them she would have done no more than she actually did without reading them.The testimony shows that the placard only warned passengers to remain in their seats. King the conductor says he warned passengers against standing in the caboose.

It has been held that where a passenger was sitting on the arm of a seat and thrown off, and where one was standing in a caboose and thrown down and injured by a sudden jerk of the train, he could not recover. But in this case the passenger did not assume any unusual or hazardous position in the caboose but did what the regulations and warnings provided that passengers should do — she sat down and was sitting down when the accident happened.

The record shows that Neal Johnson was holdng her four-year-old child between her knees, which counsel says was negligence. We do not think so. But assuming that it was, it does not appear that she would have been in any better plight if the child had been on her lap or on the seat by her side. She probably could not have remained on the seat. Her husband, Jessie Johnson, was on the same seat and was thrown out and knocked down and it does not appear that he was hampered in any way.

On the question of assumed risk, we .find the law to be well settled that a passenger on a mixed train assumes the risk of injury from ordinary jars and jolts incident to the operation of such trains operated with due care and prudence in the usual manner.

Counsel on both sides have submitted most able and exhaustive briefs which have aided us much, but the following from 10 Corpus Juris, page 865, is a concise statement of the law applicable.

“In the operation of freight or mixed trains, somewhat greater peril is involved to passengers riding thereon than is involved in the operation of passenger trains, and hence a passenger on such a train assumes the inconveniences and additional risks that are usually and reasonably incident to transportation on such trains. This, however, does not relieve the carrier from exercising the same high degree of care that it owes to passengers on ordinary passenger trains, and this generally means the highest practical degree of care ' consistent with the operation of such train, taking into consideration the fact that, in the absense of statute, a carrier is not required to equip its cabooses like passenger cars, and that inconvenience and danger necessarily attend such mode of conveyance; and in some jurisdictions this rule of liability is expressly enforced by statute. Such passenger does not assume any risks from the lack of proper care on the part of the carrier; and if such care is not exercised by the carrier, and a passenger is injured thereby, the carrier is negligent and liable.”

What we hold is, that the passenger in this case was not negligent, that she assumed no risk except that resulting from ordinary jars and jolts incident to the operation of the train with due care and prudence, that the very nature of the accident and the manner in which plaintiff was thrown .from her seat and thrown down makes out a prima facie case of negligence sufficient to cast the burden on the carrier to show want of negligence; and the carrier having failed to show that the train was operated with due prudence and usual care, is held to have been negligent and therefore liable.

On the question of damages, we cannot say that the judgment appealed from is incorrect insofar as the amount allowed Neal Johnson is concerned.

Our learned and painstaking brother of the district court wrote an opinion both ,on the law and the facts. He was not satisfied that the accident brought about the miscarriage. Neither are we. The woman received injuries, suffered considerably and was confined to her bed for some time and not able to attend to her household duties for two months. Doctor Berry said she had a wounded arm whi.ch was calculated to give her pain and that he kept it bandaged-for two weeks. She says that she was hurt on the side and arm and that her arm was bruised and sprained. She carried it in a sling for some time. The wound to the arm was considered of such seriousness that she was taken to Vicksburg and an X-ray picture made of it.

Our conclusion is that for her pain and suffering and inconvenience on account of this fall she is entitled to recover the amount which was awarded her by the district judge.

Counsel for defendant suggests that unless the court finds that the miscarriage, was brought on by the fall, no award can be made for pain and suffering. It is not the pain and suffering resulting from the .miscarriage that we are considering but that resulting from the bruise to the side and the bruise and sprain to the arm for which we think damages should be awarded.

As to the judgment in favor of Jessie Johnson, we think the amount should be reduced. He alleged that he had incurred expenses for medical and surgical attention and medicine for his wife and other expenses- incident to the accident .amounting to $37.50. He introduced proof without objection that he had expended $53.75, which amount was allowed him by the lower court. But there is no way by which we can tell what part of the drugs was used or what proportion of Doctor Berry’s services were rendered in connection with the miscarriage. And for that reason we cannot . allow for those items. We find, however, that he paid $19.50 for cooking and washing during his wife’s disability, paid' $8.50 for an X-ray picture of her elbow, and $8.50 to Dr. Street in Vicksburg, making a total of $36.50. The .judgment will, therefore, be amended by reducing the amount allowed Jessie Johnson from $153.75 to $136.50, and as thus amended it is affirmed. The. costs of the lower court to be paid by defendant and the costs of this appeal to be paid by plaintiff.


source: Caselaw Access Project

author: ODOM. CARVER, J.

license: Public Domain

text:
    No. 2289.
    Second Circuit Appeal.
    CHARLES S. WILKINSON, v. DUBACH MILL CO., INC.
    (May 9. 1925, Opinion and Decree.)
    (June 23, 1925, Rehearing refused.)
    (October 6, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Editor.)

    .1. Louisiana Digest — Appeal—Par. 499.
    Under Art. 890 of the Code of Practice, as amended by Act No. 103 of 1908, an answer to an appeal filed before argument on the first day of the regular session of the Court is timely.
    2. Louisiana Digest — Master and Servant— Par. 159, 15? (a).
    Where injured employee has stiff knee, stiff ankle, his foot drawn in, the bones are twisted and displaced, and there is partial paralysis of his entire left side, he is entitled- to recover under Section 8, Subsection 1 (b) of Act 20 of 1914, the Employers’ Liability Act, for permanent total disability:
    3. Louisiana Digest — Master and Servant —Par. 160 (a).
    If the condition of injured employee is due to hysteria which was dormant before the accident, it is evident that the fall and shock of the accident augmented and caused that condition to manifest itself, so that injured employee’s condition, aftér all, was brought on by the accident.

      4. Louisiana Digest — Master and Servant— Par. 160 (k).
    Where in a suit for compensation under Employers’ Liability Act No. 20 of 1914 plaintiff requested that the judgment be in part to his attorney for his fees, the court will give judgment as re- • quested, if fees are reasonable.
    ON APPLICATION FOR REHEARING
    5. Louisiana Digest — Master and Servant— Par. 154.
    The jurisprudence of the state is to give a liberal construction in favor of the em ployee. Therefore, the total .loss of the use of a leg is not considered equivalent to the amputation thereof under Section 8, Subsection 1 (d), but where the leg remains a painful nuisance and obstruction to activities necessary to work, the injured employee can recover for permanent total disability to do work of any reasonable character under Employers’ Liability Act No. 20 of 1914, Section 8, Subsection 1 (b).
    Appeal from Judicial District Court of Louisiana, Parish of Lincoln, Hon. S. L. Digby, Judge.
    This is a suit under Employers’ Liability Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    T. S. Price, of Ruston, attorney for plaintiff, appellee.
    Dhu Thompson, of Ruston, attorney for defendant, appellant.
   ODOM.

This is a suit under the Workmen’s Compensation Act. The defendant company owns and operates a mill at Dubach, Louisiana. Plaintiff alleges that he was employed by defendant company as a trucker at a weekly wage of $11.70. That his duty was to truck lumber, cross-ties etc., from the saw along a platform, and that another employee, engaged in similar work, allowed a cross-tie to fall from his truck against plaintiff, knocking him off the platform to the ground about twenty feet below, that his left hip was dislocated, his left side was bruised, his left foot was broken, and his left ankle dislocated. He alleges that he is totally, permanently disabled to do work óf a reasonable character, and that his left leg is paralysed from the knee down and that his sight was affected by his injuries.

Defendant answered admitting that plaintiff was employed as alleged and that while so employed sustained what it terms a slight injury to the 'right leg. All other allegations of fact are denied, except that it is admitted that defendant paid plaintiff $147.42. It is especially alleged that plaintiff has entirely recovered from the said injuries.

There was judgment for plaintiff, ordering the defendant to pay him 60% of his wages, or $7.02 per week dur,ing a period of disability, not to exceed 300 weeks, with credit for twenty-one weekly payments already made, the judgment ,being based upon the finding of fact that plaintiff sustained injuries which caused total temporary disability. From this judgment defendant appealed.

Plaintiff answered the appeal asking that the judgment be amended so as to allow plaintiff 60% ’of his wages for 400 weeks upon the theory that his injuries caused permanent, total disability to do work- of a reasonable character. Defendant objected to the filing of this answer because too late.

OPINION.

ON OBJECTION TO AMENDMENT.

Court convened at Monroe, where this case was returnable for argument, ip. regular session on Monday, April 13th, 1925. This case was placed on the calendar to be argued that day. Before argument counsel for plaintiff, appellee, offered to file á,n answer to the appeal, asking that the judgment appealed from be amended by allow'ing plaintiff 60% of his wages for 400 weeks instead of for 300 weeks and by fixing the fees of plaintiff’s attorney at one-third of the amount recovered. Appellant objected to the filing on the ground that it came too late.

Under article 890 of the Code of Practice, as it stood originally, the appellee, in order to have the judgment reversed in any part was required to file his answer to the appeal at least three days before the day fixed for argument; but under that article of the Code as amended by Act 103 of 1908, page 161,

“such answer to appeal shall be allowed •filed before argument within the first three days of the actual sittings of any regular session of said courts of appeal.”

Appellee presented his answer before argument on the first day of the regular session of the court, which was timely under the amendment to the Code noted above.

ON THE MERITS.

Defendant is a corporation engaged in the manufacture of lumber. Plaintiff is a white man between 30 and 40 years old. He had farmed all his life until the summer of 1923 when he was employed by defendant company as a trucker. It seems that lumber is taken from the cut-off saw on trucks along a platform about twenty-feet above the ground. It was plaintiff’s business to truck the lumber from the cut-off saw to the end of the platform. They were sawing hardwood and were putting out a great many cross-ties. On the morning of August 2, 1923, about 9 o’clock, while plaintiff was so engaged, he was returning from the end of the “deck”, as he calls it, going back towards the saw, when he met a colored man who had three cross-ties on a truck, two of them lying flat on the truck and the other one lying on top of the two. In some way the cross-tie which was on top fell against plaintiff’s right side, knocking him off the platform to the ground,. a distance of about twenty feet. Just what part of the body hit the ground first does not appear, but the fall rendered him helpless and unconscious, and, according to his testimony, he did not regain consciousness until the following day about 11 or 12 o’clock — more than twenty four hours.

He was picked up from the ground where he fell by two other employees of the mill and carried first to the office of Doctor Smith, the company’s physician, who made a casual examination of him and found no bones broken, dislocations or wounds, except what he termed “a slight injury to the right leg or foot.” This injury to the right leg and foot is what plaintiff sustained when the cross-tie fell against him and knocked him off the platform”.

Plaintiff was then carried to his home where he remained for about five weeks. He says he was in bed for about four weeks of that time and that no physician attended him during the time and on that point he is corroborated by one or two witnesses but is contradicted by Doctor Joe Smith, the company’s physician, who says that he paid a number of visits to him during that time.

Plaintiff evidently suffered a great deal during the time. He says he did and some of the witnesses say he gave evidences of intense pain. He complained of his left hip and leg. He finally got able to leave his house and was seen on the streets of Dubach, the town where-the mill is located. Doctor Joe Smith says he saw him a number of times but does not recall that he ever saw him without crutches. About six or seven weeks after the accident he went fishing on two occasions but he says he had to stay where they put him and that is not disputed.

He finally made a trip to Ruston and consulted attorneys who sent him to Doctor "White ■ for an examination. Doctor White does not state the result of his examination but sent the patient to Shreveport where he went under the treatment of Doctor Caldwell in September or October, 1923. Doctor Caldwell examined him in consultation With doctors Crain and Joe Smith and says that he found plaintiff’s condition to be as follows:

“At that time I saw him in consultation with Dr. Crane and Dr. Smith, first complaining of the paralysis and drawn condition of the foot. A professional diagnosis of pressure on the sciatic nerve was made at that time and then was followed by a manipulation under anesthetic at the North Louisiana Sanitarium and the foot was put in plaster of paris in the correct position. Following this the plaster was removed and daily treatments begun at the office, consisting of heat in the form of high frequency electric baking and massage over the entire leg and lumbar region on the left side. This was continued for a period of several weeks. At first the progress was very satisfactory in that the patient began to say that he had more sensation in the leg, some sensation of tingling and burning, and then he had an acute attack of tonsilitis, after which improvement seemed to cease, although the treatment was continued for several weeks longer. About this time I called into consultation Dr. J. D. Yound of Shreveport, who concurred in the diagnosis on there being possible pressure on the sciatic nerve but entertained at that time a strong possibility of hysteria.”

He says that Doctor Moise, a specialist, removed plaintiff’s tonsils, and finally, in February, 1924, some six months after the accident they put plaintiff’s foot in plaster paris again. He was finally sent home, and he says he cut the plaster off . with his knife.

Doctor Caldwell did not see the patient' again until the Saturday before the case was tried on September 3, 1921. On that date he found the patient’s knee bent “about twenty-five degrees,” and of the foot, he said: “The technical phrase would be equino varus, which simply means the club-footed position.” He said that both the foot and the knee were rigid, arid he was asked if he could straighten the foot and knee by pressure of his hands, and he said: “Yes, you can with an electric current reacting on the muscles. The muscles all respond and all of those deformities are overcome immediately, even without an anesthetic. With my hands I can’t; it hurts him.”

Doctor S. L. White, of Ruston, who originally sent plaintiff to Doctor Caldwell, in Shreveport, during the fall of 1923, examined him on Monday before the trial on September 3, 1924, and of his condition at that time he said: “He seemed to nave a paralysis involving his left leg and foot.” “His knee was stiff. He resisted any movement to straighten the leg.” That his foot was “bent in and he was attempting to walk on the outer side of his foot.” That his “left knee and left ankle were stiff.” That the left leg is partially paralysed. That he made tests with pins and got no response, and made other tests which convinced him that the patient is partially paralysed on the left side. He says he is not able to do manual labor, and that his. condition seems to be permanent.

Doctor W. S. Harrell, also of Ruston, “made a superficial examination of the patient before the time of the trial and says: “He appeared to have paralysis of the left side complete and spastic in the lower limb, incomplete in the arm. Contractions of the muscles and tendons caused some deformity of the ankle which was drawn in and rigid.” And he further states that the paralysis seemed more or less complete in the entire lower limb.

Doctor Harper, of Ruston, testified that there was a deformity of the foot as shown by the ex-ray picture.

More than once during the progress of the trial the plaintiff was caused to bare his foot and leg so that the judge and others might see that his leg and ankle were bent and rigid.

As has been stated above, the crosstie which knocked plaintiff off the platform struck him on the right side and caused slight injury to the right hip and foot. There seems to have been no permanent injury to that side. The injury of which plaintiff now complains is to his left side, including his hip, his knee and his foot. It was evidently the fall which caused this injury.

At the time of the trial and during practically all the time after plaintiff left his bed he could walk only on crutches. Of his condition at the time of the trial, he said he still suffered; that he could not move his left leg except with the assistance of his hands; that it was with difficulty that he was able to raise his left arm to his head, and that he was not able to work and had not worked since the day of the accident. And his testimony on these points is not disputed. The physicians who examined him and who saw him during the trial say that he was on that date unable to do manual labor of any kind.

We think the testimony clearly shows that plaintiff is totally disabled to ■ do any work of a reasonable character.

On the question of his recovery, Doctor White says his condition appears to be permanent. Doctor Joe' Smith says his leg could be braced and then be as good as a wooden leg. Doctor Young says the man is in no condition to work now and that some cases of this kind recover and some' do not. Doctor Featherstone says it is possible that the conditions may never be removed and that as long as his mind remains in its present condition he will grow worse, and he says: “It is probable that it will get 'all right.” Doctor Harper says that if nothing is done for the man his condition is permanent. Doctor Caldwell said, in speaking of his condition: “Doubtless in the hands of neurologists it could be treated with some chance of recovery. I don’t know the exact possibility in that connection.”

Our conclusion is that plaintiff is permanently disabled. He has a stiff knee, a stiff ankle, his foot is drawn in, the bones in his foot are twisted and displaced, and there is partial paralysis of his entire left side. Some of the physicians say that with proper treatment he may recover. The record shows that he has been treated by an eminent neurologist, Doctor Young of Shreveport, and that he was treated for about five months in Shreveport. by Doctor Caldwell, a specialist of orthopedic surgery with training in Columbia College of Physicians and Surgeons; in New York City Hospital; training Presbyterian Hospital, New York City; Fracture Hospital in France, two years; did orthopedic work in Atlanta, Ga.; was associated with Doctors Hoke and Hodgson, and one year in the charge of the Shriner’s Hospital in Shreveport, and yet the patient’s condition has grown worse instead of better. He has had the benefit of the best talent and training in this section. Then what hope is there for him? True, it is possible that if he could be placed with Mayo Brothers or in the Johns-Hopkins Hospital in Baltimore and remain long enough he might recover; and let it be said that he would. But treatment at those places is entirely out of his reach. Who is to pay the bills? We must consider him in his natural environment. It is not what could be done for him under the most favorable circumstances but what will probably be done for him in his present financial condition.

We find that plaintiff is now totally disabled to do work of any. reasonable character and that there is a possibility that with the best treatment and care he would improve and possibly recover, but that there is no probability that he will be able to get such treatment. Therefore there is no probability that he will ever recover. Under such conditions we hold that plaintiff is permanently disabled.

See Brooks vs. Peerless Oil Co., 146 La. 383, 83 South. 663.

The defense to the action is that plaintiff is a malinger who makes no effort to procure or perform work' of any kind.

Plaintiff is an uneducated man who can neither read nor write. He earns, or did earn a living by manual labor. He farmed until he was employed by the defendant company to , truck lumber at $1.95 per day. We don’t know, of course, whether he wants to work or not, but we can think of no work that he- could do even if he were anxious to work. Some of the witnesses testify that a man with one wooden leg can do manual labor, even work about sawmills; but plaintiff is not a one-legged man. He has two legs, one of which is bent and stiff and in his way. He is unable to get about except on crutches, and as long as this leg is attached to his body he will have to continue to use crutches. Some of the physicians say that plaintiff’s condition is due to hysteria and one or two say that it may he due to that. Doctor Caldwell, for instance, says that the drawn and rigid condition of the leg and foot is a “hysterical contraction.” That theory does not appeal to us in this case. Doctor White says that plaintiff’s condition may be hysterical. He does not say that it is, but he says that such conditions are not found often in men of plaintiff’s type. He was asked:

“You find those conditions in what type of people?”

And he answered:

“The hysterical in the higher walks of life.”

But suppose it be granted that plaintiff’s condition is purely hysterical, or the doctors say it is, that is no defense under the facts of this case for the reason that,, according to thoáe doctors, the hysteria was probably brought on by the accident. Doctor Caldwell and others say that hysteria is a condition of the mind which may be entirely dormant and that the fall, the shock resulting therefrom, may have “set it off,” brought it on.

Doctor Caldwell says: “The accident itself would not produce the hysteria by itself. I presume, on the other hand, that had he not had the accident he would not have any hysteria manifestations in that leg. It might have been elsewhere in connection with something else entirely.”

Doctor Featherstone says hysteria is a heritable condition and that shock might develop it.

Doctor White says the accident might be an exciting cause of the hysterical condition and that a mental shock might bring it on, and he was asked:

“What are the other causes that would bring on a hysterical condition?”

And he said:

“A fall, trauma, mental shock.”

If the plaintiff is in fact of a hysterical type, which we doubt, that condition was dormant, and if it he conceded that his condition now is due to his hysteria it is very evident that the fall and the shock, mental and physical, resulting therefrom, augmented and caused that condition to manifest itself; so that his disabilities, after all, were brought on by the accident, and the defendant is liable.

See Behan vs. John B. Honor Co., 143 La. 348, 78 South. 589.

We are asked to hold that plaintiff is only entitled to recover the amount allowed in case. of the amputation of a member, on the theory that the loss of the use of a member is equivalent to the amputation of the member, as provided in Act 43 of 1922.

That theory has no place here for the reason that plaintiff has lost more than his leg. His hip is still rigid and his whole side, including his arm, is partially paralyzed.

We are asked to amend the judgment so as to fix the fees of the attorney of the plaintiff at one-third of the net amount recovered. Plaintiff testified that he agreed to pay his attorney one-third .of the net amount which he might recover and he has asked that the judgment be amended so as to allow that, and we can see • no reason why it should not be done.

We find that the plaintiff in this case is totally and permanently disabled to do work of any reasonable character.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows:

It is therefore ordered, adjudged and decreed that the Dubach Mill Company, Incorporated, pay to the plaintiff, Charlie S. Wilkinson, compensation at the rate of seven and two-hundredths ($7.02) dollars per week during the period of his disability, not, however, beyond four hundred weeks, commencing on August 2, 1923, with five per cent per annum interest on each installment from the date due, the first installment having become due August 9, 1923, and each subsequent installment becoming due at intervals of one week from that date. Subject, however, to a credit for twenty-one weekly installments already paid by defendant to plaintiff. It is further ordered, adjudged and decreed that the fees of the attorney representing the plaintiff in this case be fixed at one-third of the net amount recovered under this judgment. All costs to be paid by defendant.

ON APPLICATION FOR REHEARING

CARVER, J.

In his brief for rehearing, defendant’s able counsel insists that the burden was on plaintiff to prove his case; that the testimony does not show total or permanent disability but temporary and partial disability; and, further, that the applicable clause of the Compensation Act (Section 8 of Act No. 20 of 1914, as amended by Act No. 43 of 1922) is not any of the three disability clauses but that part of Subsection (d) of Section 8, providing that the total permanent loss of the use of a member shall be equivalent to the amputation of the member, and that therefore the award should be for only 175 weeks as for the loss of a leg.

He cites:

Piske vs. Brooklyn Cooperage Co., 143 La. 455, 78 South. 734.

Haddad vs. Commercial M. Truck Co., 150 La. 327, 90 South. 666.

The cited cases have little application in our opinion. They merely decide that the burden is on plaintiff to show that the injury was received in an accident arising out of and in the course of his employment.

The proof in this case unquestionably shows that plaintiff’s injuries did so arise.

In the Piske case the accident occurred at a place where plaintiff’s employment did not require him to be.

In, the Haddad case the court found as a fact that the injury was .produced by cancer of the liver.

As to. the totality of the injury in this case, the evidence fully satisfied us that the plaintiff at the time of the trial was totally disabled. This question was fully discussed in our original opinion and we see no reason to add anything to what was said therein. .

If the plaintiff is totally disabled,. then it is clear that either Subsection (a) or Subsection (b) of Section 8 of the act may be held to apply, according as the disability is temporary or permanent.

If by reason of the fact that there is a total loss of the use of the leg, the case might also fall under the above quoted provision from Subsection (d). If qo, the situation would be that two clauses of the act cover the case at bar. If then we should apply the clause giving the smaller compensation, this would be adopting a liberal construction in favor of the employer. But the jurisprudence is that a construction liberal to the employe should be adopted.

Jones vs. Powell Lumber Co., 156 La. 767, 101 South. 135.

Besides, the proof shows not merely a loss of the use of the leg; it shows also that the leg remains as a painful nuisance and obstruction to activities necessary for work of a reasonable character.

If our opinion that the disability is permanent- shall be disproved by the event, defendant can obtain relief after one year from the time the judgment becomes operative by exercising the right to demand review accorded it by Section 20 of the Compensation Act.

The judgment is not for 400 weeks but only for so much a week during disability, not to exceed 400 weeks.

Should we determine at this time, on the basis of the opinion of some of the doctors, that plaintiff was only temporarily disabled, then should the event prove that we were mistaken, the result would be that we would have denied him 100 weeks’ compensation, to which the final result would show he was entitled. .

Rehearing refused.


author: REYNOLDS, J.

text:
    No. 2318
    Second Circuit Appeal.
    J. ELISHA NAPPER, JR., v. TOM WELCH
    (May 9, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Things—Par. 4, 9.
    Under Articles 2489, 2490 and 465 of the Civil Code we hold that the standing crop of corn was a part of the land and that the sale by the sheriff in partition transferred the title to the corn to the purchaser at that sale.
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Union, Hon. B. D. Pearce, Judge.
    This, is a suit to sequester corn as property of plaintiff.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. E. Dawkins; H. M. Fields, of Farmer-ville, attorneys for plaintiff, appellee.
    Elder & Everett, of Farmerville, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a sequestration suit in which 100 bushels of corn, more or less, were sequestrated as the property of plaintiff. The corn was raised by defendant, Tom Welch, during the year 1924, on land belonging to a succession. 'Welch claims possession of the land under a lease contract with two of the three heirs of the deceased owner, but the lease was not recorded and was therefore without effect as against third persons.

On August 19, 1924, the land on which the corn was growing was sold by F. W. Murphy, the sheriff of Union parish, in partition under an order of court. The land was bought in at the sale by M. A. Talbor and Y. S. Fuller and both sold the land to J. Elisha Napper, Jr., the plaintiff, On August 27, 1924.

The question presented for decision is, whether or not the sale above mentioned transferred to the purchasers the crop of corn grown by the defendant Tom Welch.

Under articles 2489 and 465 of the Civil Code we hold that the standing crop of corn was a part of the land and that the sale by the sheriff in partition transferred the title to the corn to the purchaser at that sale.

The defendant raised the corn and by proper proceedings in court he might have established a claim of ownership thereto; but under no provision of the law did he have a privilege, for one cannot have a privilege on, and at the same time be-the owner of, a thing.

By proper legal proceedings in the partition suit he might have had his right to the corn determined, but when he failed to take any legal steps' to prevent the sale of the corn and allowed it to be sold as a part of the land, his right to the corn whatever it may have been, was lost.

Williamson vs. Richardson, 31 La. Ann. 685.

For these reasons, the judgment appealed from is affirmed.


author: CARVER, J.

text:
    No. 2324
    Second Circuit Appeal
    SHUSHAN BROS. & CO., INC., v. W. B. INABNET, JR.
    (May 9, 1925, Opinion and Decree.)
    (June 27, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 45.
    He who is notified that a contract has been made for him and subject to his ratification, by a person who pretended to have authority for that purpose, is presumed to ratify it, unless immediately on being informed thereof he repudiates it.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sande'l, Judge.
    This is a suit for the value of goods shipped by plaintiff to defendant. The defense is a general denial.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    McHenry, Montgomery, Lamkin & Lámkin, of Monroe, attorneys for plaintiff, appellant.
    Newton, G-arett & Newton, of Monroe, attorneys for defendant, appellee.
   CARVER, J.

Plaintiff sues defendant for $288.59 for goods alleged to have been shipped him on his order, and from an adverse judgment prosecutes this appeal.

The defense is a general denial.

The proof shows that Victor Marks a traveling salesman for plaintiff, went to defendant’s store at Fairbanks, Louisiana, on December 10, 1923, while defendant was absent on account of sickness in his family, and obtained from defendant’s brother, Ernest Inabnet, who was apparently in charge, what he considered- an order for goods; that he mailed to defendant the day afterwards a copy of the order showing Fairbanks as the shipping address; that no countermand was given; that part of the goods were shipped by rail to defendant at Fairbanks and the rest by parcel post to the same address; and that those shipped by parcel-post were afterwards returned to plaintiff who, though, refused to receive them. Those shipped to Fairbanks were put out on the platform there but defendant never took them away and the proof does not show that they were ■ever removed therefrom.

Defendant claims that his brother was without authority to order goods, except locally or from houses where he had an account already (plaintiff not being one of these) and his brother testified that:

“Fairbanks, La.,
“Mar. 4, 1924.
“Shushan Bros. Co. Inc.,
“New Orleans, La.,
“Dear Sirs:
“I am returning herewith some invoices. I do not intend taking this merchandise. I ordered these goods to be shipped to Monroe, La. and not to Fairbanks, La. These goods were thrown off at Fairbanks probably two weeks before , I knew anything about them. No doubt they are damaged now. That is what you probably call a business way. I gave your Mr. Marks .specific instructions not to ship same to Fairbanks. I was talking to Mr. Marks yesterday and he said his instructions were to ship to Monroe and all by Freight. This order was stuffed and I don’t consider this justice.
“Very truly,
“W: B. Inabnet, Jr.
“E. V. I.

These letters were written, the first two by Claude Mullin a clerk in defendant’s store, and the last one by his brother, Ernest.

Plaintiff having placed its claim in the hands of McHenry, Montgomery, Lamkin & Lamkin they wrote to defendant demanding payment whereupon he replied as follows :

“Fairbanks, La.
“Aug. 30, 1924.
“McHenry, Montgomery, Lamkin & Lamkin, “Monroe, La.
“Gentlemen:
“I do not owe Shushan Bros. & Co., of New Orleans, La. anything. Because I have not bought anything of them. Neither have I received anything from them.
“Very Truly Yours,
“W. B. Inabnet.”

Defendant admits writing this letter (page 3). He practically admits authorizing the letters written by Mullins and his brother. Asked about one of the letters, evidently one of those dated February 27th, he states (page 16) that he doesn’t remember whether he authorized it or not, but he may have, and that it was his attitude at that time.

And later:

“Q. And you state you did not authorize him to write that letter?
“A. I don’t know. I rather think I did, because he would not—
“Q. You did authorize him?
“A. I don’t remember doing it. Pretty well tied up at that time with sickness and I don’t remember.”

As to another letter, probably the one of March 4th, he says: .

“Q. State who wrote that letter?
“A. My brother.
“Q. Did you authorize him to write that letter ?
“A. I told him to write to them. I didn’t see the letter after it was written.”

In this court • defendant’s counsel argue that plaintiff is without right of recovery because:

1. The goods were shipped to the wrong place.

2. Because they were shipped too soon.

3. Because the order was given subject to defendant’s ratification and was never ratified.

I.

It is not claimed that defendant suffered any injury by the goods being shipped to Fairbanks. Defendant or his brother learned of their being there promptly. Marks says Ernest Inabnet told him they were at the depot, after which he saw them there between February 7th and February 10th. There is no pretence that the contents had been tampered with. The order,’ a copy of which was sent to defendant or to his brother on December 11th showed Fairbanks as the shipping address and this was where defendant’s store was located.

II.

It is not claimed, either, that shipping the goods too soon caused defendant any injury. The invoice was dated February. 10th, payable sixty day’s thereafter.'

III.

The main defense is that Ernest Inabnet was without authority to give the order and that in fact he did give it expressly subject to ratification by his brother and that his brother not having ratified it there was in reality no order.

We may accept the testimony of Ernest Inabnet that the order was so given, but w'e think the conduct of the defendant amounted to a tacit ratification. He learned soon after the order was given that it had been given, his brother having told him of the duplicate order sent by Marks, but he did not countermand it, although this duplicate order showed that Marks considered it an unconditional order it not containing any notation to the effect that it was subject to confirmation. He learned that the goods were at the depot but did not return them or order them returned. Though away a good deal of the time, on account of his wife’s sickness, he was in and out, of the store almost every day. Though knowing from the fact that plaintiff had shipped the goods that it regarded the order as valid, he did not indicate his disapproval even by .writing to plaintiff until February 27th — twenty three days after the goods shipped by freight were put off and after the parcel-post goods came, and then instead of writing himself permitted his clerk and his brother to write the letters copied above, which letters contained no disavowal of his brother’s authority but placed the rejection on the ground, as to the freight shipment that the goods should have been shipped to Monroe, and as to the parcel post shipment, that they should not have been shipped in February but in March.

As early as the year 1837 Chief Justice Martin, in the case of Pitts vs. Shubert, 11 La. 286, stated:

“No principle is better settled than that he who is notified that a contract has been made for him and subject to his ratification, by a person who pretended to have authority for that purpose, is presumed to ratify it, unless immediately on being informed thereof, he repudiates, it.”

In Raymond vs. Palmer, 41 La. Ann. 425, the syllabus reads as follows:

“The silence of a principal after knowledge of an unauthorized or illegal act of his agent, is equivalent in law to an acquiescence- in, and ratification of, the act or conduct of the agent.’

In Ball vs. Bender, 22 La. Ann. 496, the court, on rehearing page 496, uses the following language:

“It was the duty of Bender to have notified the plaintiff, Ball, that he repudiated the act of Ainsley, as unauthorized, so soon as he was informed of the fact even if Ainsley had not been authorized to sell, this he failed to do.”

We think under these authorities defendant must be held to have ratified the order.

His counsel seek to escape the application of this principle by the argument that the order was not really an order because given only subject to confirmation and as confirmation was never given it therefore never became an order. But in our opinion this argument is not sound because as shown by the authorities quoted above a ratification may be tacit as well as express.

In the Pitts case, supra, the testimony showed that Foster, who as agent of the plaintiff had sold the defendant some hogs, informed defendant that they belonged to plaintiff and that the validity of the sale was to depend on his ratification. In this respect the case is on all fours with the present case. The court, though, held that plaintiff had ratified the sale because when informed by defendant that he had purchased the hogs from Foster the plaintiff did not then disavow Foster’s act.

Defendant’s counsel cite Noble vs. Plons, 154 La. 429, 97 South. 599. We do not think this case in point. The express ground of the decision is that the party there pleading ratification by the principal of the unauthorized act of the agent failed to allege that the principal had knowledge of the material facts of the transaction. But here the proof satisfies us that defendant did have knowledge of the material facts of this transaction, which were that his brother had given the order and that plaintiff had filled it.

Defendant and his brother both testify that when informed of the order defendant said he did not want the goods; but this decision was not communicated to plaintiff which was allowed to remain under the belief that the order was a valid one, in reliance whereon it shipped the goods to the address given in the order a copy of which had' been sent to defendant.

In the case of Ball vs. Bender, supra, the principal had expressed to his agent dissatisfaction with the contract in question, but the court held the principal bound because he failed to notify, Ball, the party with whom the contract was made.

The judgment of the lower court is therefore reversed and it is decreed that Shushan Bros. & Co., Inc., do have judgment against W. B. Inabnet, Jr., for the sum of two hundred and eighty-eight and 57-100 dollars with 5% per annum interest thereon from April 5, 1924, 'until paid, and the costs of both courts.


text:
    No. 2246
    Second Circuit Appeal
    COLUMBUS M. JONES v. LOUISIANA CENTRAL LUMBER COMPANY
    (May 9, 1925, Opinion and Decree.)
    (June 27, 1925, Rehearing Refused.)
    (October 6, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 158.
    Where it is shown that the injured employee had his foot severely crushed while he was crossing a train of log and box cars, standing in close proximity to the mill where he worked while he was on his way to work, held that the accident occurred while the injured employee was performing services arising out of and incidental to his employment, under Section 1, Subsection 2, of the Workmen’s Compensation Act No. 20 of 1914.
    2.. Louisiana Digest — Master and Servant Par. 159 (a).
    Where the evidence shows that the injury to the employee makes it impossible for him to walk on the bottom of his foot, he is entitled to compensation for temporary total disability during the period of his disability, not exceeding 300 weeks, under Section 8, Subsection 1 (a), of the Workmen’s Compensation Act No. 20 of 1914.
    (The recent. amendment to Section 8 of Act No. 20 of 1914 is Act No. 216 of 1924. Editor’s note.)
    3. Louisiana Digest — Master and Servant Par. 160 (k).
    Under Section 22 of the Workmen’s Compensation Act No. 20 of 1914 the court will limit the attorney’s fees to not over one-third of the amount recovered, as anything above this amount would be unreasonably large.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Caldwell. Hon. • P. E. Jones, Judge.
    This is a suit brought by an injured employee under the Workmen’s Compensation Act No. 20 of 1914 to recover compensation for an injury to his foot. There was judgment for the plaintiff and both plaintiff and defendant appealed.
    Judgment amended and affirmed.
    A. L. Allen, of Shreveport; J. T. Long, of Shreveport, attorneys for plaintiff, appellant.
    Thornton, Gist & Ritchie, of Alexandria, attorneys for defendant, appellee.
   REYNOLDS, J.

In this suit Columbus M. Jones seeks to recover from the Louisiana Central Lumber Company judgment for nine dollars per week for three hundred weeks and for $250.00, amount he has paid and expended for medicine or in lieu of hospital and medical services, for an injury in which his foot was severely crushed while he was crossing a train of log cars and box cars standing on a railroad track adjacent to and in close proximity to the sawmill of the Louisiana Central Lumber Company, at which mill plaintiff was employed in the distributing and stacking lumber.

Defendant denied liability on the ground that at the time of the accident plaintiff had not reached the premises of defendant and hence had not begun the day’s emplojjment for defendant.

On these issues the case was tried and judgment was rendered for plaintiff for the sum of $9.00 per week during his disability, not exceeding 125 weeks, beginning February 2, 1924.

Prom this judgment both plaintiff and defendant appealed.

OPINION

The first question presented is whether or not at the time of the accident plaintiff was an employee of defendant, performing services arising out of and incidental to his employment, in the course of his' employer’s trade, business or occupation.

Defendant required plaintiff to be at the place of his work at 6:50 a. m. The accident occurred at 6:47 or 6:48 a. m. from 30 to 40 feet from the stairway leading from defendant’s mill shed to the ground of defendant.

Evidence, page 20:

“Q. How far from the mill platform •was it where he got hurt?
“A. Thirty or forty feet.
“Q. Did you have to cross the railroad track in order to get to your work?
“A. Yes, sir.

Evidence page 8:

“Q. When do the men have to be on the job?
“A. When the work whistle blows at 10 minutes to 7:00 o’clock.
“Q. At the time you got your foot injured had the work whistle blowed?
“A. No, sir.
“Q. What whistles had blowed?
“A. The fifteen-minute and five-minute whistles had blowed.”

Evidence, page 9:

“Q. How long after the five-minute whistle blowed before you got injured?
“A. About three minutes.”
“Q. You were on the property of the Louisiana Central Lumber Company?
“A. Yes, sir.

Evidence, page 10:

“Q. Other people cross them there?
“A. Yes, sir.

Evidence, page 12:

“Q. How far were you from the platform of the mill?
“A. About thirty (30) feet.
“Q. How long would it have been before you actually got to your work if you had not been hurt?
“A. About two minutes.”

The railroad and the sawmill, as parts of .one enterprise, were built by the defendant company. In 1910 the railroad was sold to the stockholders of the defendant lumber company for $2,000,000.00 of the stock of the lumber company, and the two companies operated separately thereafter, insofar as the books were concerned, but as a matter of fact the lumber company remained dependent on the railroad company for logging its mill and hauling ' its lumber market, and the railroad company remainéd dependent on the lumber company for 85% of its traffic.

The railroad on which the accident occurred was not only immediately adjacent to the plant of the defendant lumber company but, by means of switch tracks, was connected with it, and in principle the plaintiff was as though upon the actual premises of the defendant, and it was only two or three minutes before plaintiff would have actually gone to work.

The house that plaintiff lived in was on the property of the defendant, and all the ground, from plaintiff’s residence to defendant’s plant, belonged to defendant, except possibly the right of way of the railroad company, and plaintiff was on his way to his work by the route usually traveled by him and his co-workmen at the mill.

He left his home in time to meet the requirements of the rules of the company requiring him to be at the place of his work 10 minutes before seven o’clock a. m. His way was obstructed by the log cars which were being used to log defendant’s mill and which were standing on the track adjacent to defendant’s mill.

Plaintiff swears that he looked and that there was no engine attached to the train when he went on same. His testimony on this point has not been disputed.

Under all the evidence in the case, we think plaintiff, at the time of the accident was performing services arising out of and incidental to his employment.

In Prevost vs. Gheens, 151 La. 508, 92 South, 38, our Supreme Court said:

“When an employee is going from his work to his lodging house, on the premises where he works, he is within the meaning of paragraph 2 of Section 1 of the Employer’s liability Act, ‘performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation.”

Gregory vs. Standard Oil Co., 151 La. 228, 91 South. 717.

In Cudahy Packing Co. vs. Parramore, 263 U. S. 418, the court says:

“On the morning of August 9, 1921, he rode to the plant in the automobile of another employee, for the purpose - of going to work. The automobile crossed over two of the railroad tracks and when upon that of the Rio Grande was struck by an engine and Parramore was instantly killed. This happened about seven minutes before the time when his service as an engineer was to begin.”
“The railroad over which the way extended 'was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer.
“We attach no importance to the fact that the accident happened a few minutes before the time Parramore was to begin work, and was therefore, to that extent, outside the specified hours of employment.
The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.’ 0

As to the injury received, the plaintiff testified, pages 4 and 5:

“Q. Is there anything gone from your foot?
“A. Yes, sir, two toes and the hone at the side of the foot is gone.
“Q. .What toes are gone from your foot?
“A. The two little toes.
“Q. What hone is gone?
“A. A hone that the little toes were on.”
“Q. Is that foot as large around as the other foot?
“A. It might he — it is as thick because it is swelled now, but it is not as wide.
“Q. You say a bone was removed from that foot?
”A. Yes, sir the one that the little toe was on.
“Q. How far back was that bone removed?
“A. I don’t know whether it was all taken out or not — they took the toes off..
“Q. Can you bear any weight on that foot?
“A. On the heel and big toe I can.
“Q. Can you walk on it?
“A. Very little — I can’t walk on the bottom of my foot.
“Q. Have you used a crutch ever since you were hurt?
“A. Yes, sir.”

Dr. S. G. Hines testified, page 66:

“Q. How long have you been practicing medicine and surgery?
“A. About fifteen years.
“Q. You are connected with Dr. Gardner in the mill practice there?
“A. Yes, sir.
“Q. Did you and Dr. Gardner have occasion to treat Mr. Jones, the plaintiff in this suit, when he was injured February this year?
“A. Yes, sir.
“Q. Please state his injury and the extent of it?
“A. He had a foot that was pretty ■badly mashed up and the loss of the two small toes and the corresponding bones of the foot. The whole bottom part of his foot was mashed and the fourth and fifth toes and the metatarsal bones of the foot were destroyed.
“Q. Were the metatarsal bones extending from the large toe and the two toes next to the large toe destroyed?
‘‘A. The large toe and the other one was not but the third toe was broken — the large toe and the next one to it I don’t think were injured. The third toe was broken and the small toe and the next one to it were removed.
“Q. What have you to .say with reference to the extent of whether or not this plaintiff has entirely lost his foot or whether or not he will have the use of his foot in the future ?
“A. We feel that he will have some use of it.
“Q. You feel that it would not be advisable to amputate the foot?
“A. Yes, sir; it is better than no foot at all.
' “Q. You feel that in time he will again be able to use that foot?
“A. In a reasonable length of time he will. There will possibly be some impairment though. He will limp and it will possibly not be as strong, but it heats a stump. Of course there is a lot of scarry tissue and it will be slow in getting tough. At this time no one can tell just how much impairment will exist.
“Q. You think it will gradually improve for some time?
“A.. Yes, sir.”

We think, under this evidence, that at the time of the trial of the case plaintiff’s injury was producing temporary total disability to do work of any reasonable character and that he was entitled to judgment for the amount named in the judgment of the lower court during the period of his disability, not exceeding 300 weeks.

The next question to be discussed is as to plaintiff’s demand for $250.00 claimed in the prayer of his petition for the amount spent and expenses incurred for or in lieu of medical services and medicine.

The evidence does not show that the plaintiff spent any amount on account of this alleged item. Hence this portion of plaintiff’s demand must be denied.

This brings us to the attorney’s fees. Plaintiff asks in his petition that his attorneys be allowed for their services in this case 50% of the amount of any judgment recovered.

Section 22 of Act 20 of 1914 provides:

“That claims or payments due under this act shall not be assignable and shall be exempt from all claims of creditors and from levy or execution or attachment or garnishment except under a judgment of court for alimony in favor of a wife or ascendant or descendant. Fees of attorneys and physicians for services under this act shall be reasonable and measured according to the workmen’s station and shall be approved by the court.”

Under this act we feel it is our duty to limit the attorney’s fees in this case to not over one-third of the amount allowed in the judgment.

For these reasons., it is ordered, adjudged and decreed that the judgment appealed from be amended and it is now ordered adjudged and decreed that plaintiff, Columbus M. Jones, do have a recover judgment against Louisiana Central Lumber Company for the sum of nine dollars per week during his disability, not exceeding, three hundred weeks, beginning February 2, 1924, with 5% per annum interest on each weekly payment from its maturity until paid.

It is further ordered, adjudged and decreed that the fee of Dr. Brown, as an expert witness be fixed at $10 and taxed as costs in this case.

It is further ordered, adjudged and decreed that the fees of plaintiff’s attorneys in this case be approved for one-third of the amount of the judgment herein.

Defendant to pay all costs in both courts.


author: BELL, J.

text:
    No. 8850.
    Orleans Appeal.
    W. ALEXANDER BAHNS v. ERNEST A. CARRERE CO., Appellant.
    (May 11, 1925 Opinion and Decree.)
    (Rehearing Refused. June 8, 1925)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 155, 277.
    A purchaser of real estate is not justified in suing for the restitution of purchase price and in refusing to accept title which is shown to be valid and translative of property, where the refusal is predicated upon- allegations by the purchaser that a minor’s mortgage has been illegally erased by final judgment of Court, shown to be over ten year’s duration, especially where the mortgage inscription upon the property is in the name of the tutor, whose author in title .has been dispossessed by valid tax sale for over twenty years, from the institution of suit by the present purchaser.
    Appeal from Civil District Court for the Parish of Orleans, Div. “D”, Hon. Porter Parker, Judge.
    This is a suit for specific performance to compel defendant, as plaintiff's vendor, to convey to plaintiff a good and valid title to certain real estate, or, in the alternative, that defendant be condemned to restitute to plaintiff the full purchase price and certain over-payments.
    Judgment for plaintiff. Defendant appealed. Judgment affirmed.
    W. Alexander Bahns, H. L. Garland, H. L. Rhodes, Attorneys for Plaintiff and Appellant.
    J. C. Henriques, Attorney for Defendant and Appellee.
   BELL, J.

This is a suit for specific performance to compel defendant, as plaintiff’s vendor, to convey to plaintiff a good and valid title to certain real estate, or, in the alternative, that defendant be condemned ' to restitute to plaintiff the full purchase price and certain over-payments. The contract sued upon is a certain lease or bond for deed. This is the third time that this case has been appealed by plaintiff to this Court. The first appeal was from a judgment maintaining an exception of no cause of action, which judgment was reversed on appeal and the case remanded for further trial. (No. 6620 Orl. App. — March 27, 1916). The second appeal was from a judgment condemning defendant to. transfer to plaintiff by deed the property described in plaintiff’s petition. Upon the trial on the merits, had prior to this second appeal, plaintiff offered to file in evidence certain mortgage and conveyance certificates in the name of alleged previous -owners of the property in question, which documents showed mortgages recorded against the said owners. To this offer, defendant interposed certain objections, which were maintained by the trial judge. This Court upon trial of the second appeal aforementioned, being of the opinion that the evidence was erroneously excluded -by the trial judge, reversed and annulled the judgment appealed from and again remanded the case for further and second trial on the merits. (No. 7790 Orl. App. — April 19, 1920).

The case is now before this Court on appeal taken by plaintiff from a judgment by which, for the second time, defendant is ordered to convey to plaintiff by deed the property referred to in the petition, which property is more particularly described as:

“Two certain lots of ground, in the Third District of this City, designated as lots nine and ten of square 1583, which is bounded by Industry, Annette, Allen and Duels Streets, on a plan made by C. Uncas Lewis, deputy city surveyor, dated January 14th, 1909, a blue . print of which plan is annexed and made part of an act of sale from Ernest A. Carrere Company, Limited, to Joseph Capital, as per act passed before Pierre D. Olivier, Notary Public, dated August 13th, 1914, and which lots measure as follows:
“Lot No. nine (9) measures Thirty-Two (32) Feet front on Industry St., by a depth of One Hundred and Fourteen (114) Feet, Eleven (11) Inches and three lines; Lot No. Ten (10) adjoins Lot No. Nine, and measures Thirty-Two (32) Feet front on Industry St., by a depth and front of One Hundred and Fourteen (114) Feet, Eleven (11) Inches and three lines on Annette St., and forms-the corner of Industry and Annette Sts.

The title of defendant herein to the property above described is set up by deeds found in the record before us and duly offered by defendant at the last hearing of this case in the District Court. From this evidence the following chain of title is established:

Charles H. Gans purchased the entire square of ground on which the lot in dispute is one of the lots by an Auditor’s deed, dated January 21, 1903, which Auditor’s deed is registered in C. O. B. 191, Folio 184, on February 27, 1903.

Charles H. Gans sold the whole square to Samuel Hyman by act before John Watt, notary public, May 10, 1906, registered in C. O. B. 204, Fol. 668.

Samuel Hyman sold the square of ground to Ernest A. Carrere by act before Joseph Sinai, notary public, October 29, 1907, registered in C. O. B. 216, Fol. 306. *

Ernest A. Carrere sold the square of ground to Ernest A. Carrere Company, Ltd., by act before J. C. Henriques, notary public, January 7, 1909, registered in C. O. B. 223, Fol. 502.

The Carrere Company, the defendant herein, appears to have been in posssesion and to have owned the property ever since.

It is averred in the first and second supplemental petitions filed in these proceedings that defendant acquired the property involved herein from Washington J. Tracey, by act under private signature, dated April 24, 1911, and • duly acknowledged before A. H. Frerichs, notary public, of Curyohoga County, Ohio’, and registered in the Conveyance Office for the Parish of Orleans, Book 345, Polio 269; that Washington J. Tracey acquired from William P. Tracey and Thomas Boylan Tracey, by act before J. B. Rosser, Jr., notary public, dated June 20, 1910, and registered in the Conveyance Office for the Parish of Orleans, Book 237, Polio 551; that at the time Washington J. Tracey sold to defendant there was a general mortgage recorded against Washington J. Tracey on all of the property within the Parish of Orleans, this mortgage having resulted from Tracey’s qualification as tutor of the minors Elitia Tracey et al., in the proceeding No. 74,437 of the Civil District Court for the Parish of Orleans, this general mortgage being recorded in Book 785, Polio 55, of the Mortgage Office of said Parish.

It is further averred that not only this minor’s mortgage but other mortgages and judgments recorded against Washington J. Tracey and William P. Tracey, curator of the interdict, James D. Tracey, are outstanding and bearing against the property as described, and that same constitute encumbrances which render the title invalid and non-acceptable to plaintiff.

It is further alleged that on April 26, 1912, almost a year after the purchase of the property by defendant, that a rule was taken by defendant in the Civil District Court for the Parish of Orleans, in the aforesaid matter of the minors Elitia Tracey et al., No. 74,437, C. D. C., to cancel and erase the various inscriptions recited by plaintiff, and that a judgment was accordingly rendered by the Court, on May 3, 1912, directing such cancellations, but that said judgment was irregular, null and void and without effect, and that, therefore, the title to said property is still encumbered with all of said mortgages.

Defendant answers the original and supplemental petition by admitting the contract of lease or bond for deed sued upon, but sets up its claim of title as hereinabove noted, and avers that it is willing and ready to take the property referred to in said title and has already offered to sign an act of sale conveying same, but that plaintiff has refused.

It further answers by denying all other allegations of plaintiff’s supplemental petitions, and particularly does it deny that it ever purchased the property from Washington J. Tracey, or that the said Tracey or James D. Tracey or William P. Thacey ever owned said property or any part thereof.

It is further averred that the defendant and defendant’s vendors have had continual possession of this property since its sale by the State of Louisiana to one Gans, on January 21, 1903; that the property in question was vacant, unimproved property when sold to Gans and still is such, and that defendant has been in actual physical possession for over ten years.

It is further averred that any alleged transfers which Washington J. Tracey, James D. Tracey or William P. Tracey may have made of such property, were not conveyances but quit claims, the money consideration for which was paid to Washing-, ton J. Tracey and others in compromise of a certain suit by said party or parties against defendant.

It is finally alleged that no general mortgages were of record against Washington J. Tracey at the time that he and one Carrere and the defendant entered into compromise with and received quit claim from Tracey, but that even if such were the facts, that said mortgage could not affect the present property because Washington J. Tracey had no interest therein.

It is finally denied that the judgment cancelling all mortgages referred to by plaintiff was null and void, but that, on the contrary, same was valid and cannot be attacked collaterally.

While the judgment appealed from is in favor of plaintiff, who is appellant, it is evident from the supplemental- pleadings in this case that appellant is seeking by appeal to avoid acceptance of the property, which defendant has been directed by the judgment to transfer to him, and now desires a judgment declaring the title tendered to be an invalid title and directing a restitution of the purchase price to plaintiff. We find that while the allegations in plaintiff’s supplemental petitions to the effect that defendant acquired from Washington J. Tracey the property in question by deed under private signature, dated April 24, 1911, is a fact substantiated by a certified copy of said deed offered in evidence, it is nevertheless true, as averred by the defendant, that this deed can be considered only as a quit claim deed given by Tracey to defendant in compromise and settlement of a certain petitory action brought by Washington J. Tracey et al. against Ernest A. Carrere Company (defendant herein), No. 95,593 of the docket of the Civil District Court for the Parish of Orleans, and that the consideration mentioned in the aforesaid deed was not one given in payment of any property, but as a means of affecting the compromise by which said petitory action was dismissed on motion of plaintiffs.

It appears that after the Carrere Company had purchased the property now involved in this suit, Washington J. Tracey and others filed suit to be declared the owners of this property, said suit being the petitory action just noted.

It also appears that William P. Tracey and Thomas B. Tracey likewise executed a deed purporting to transfer the property to the defendants herein by act before J. B. Rosser, Jr., notary public, dated June 20, 1910, and rgistered in the Conveyance Office for the Parish of Orleans, Book 237. Eolio 551. This deed, as well as tne one of April 24, 1911, was given by tne parties mentioned as a quit claim deed, in consummation of a compromise or settlement of the suit No. 95.593, C. D. C., aforementioned. The fact that this suit was compromised and Washington J. Tracey and others really executed a quit claim, is shown by a certified copy of an act passed before J. B. Rosser, Jr., notary public, bearing date August 2, 1922, and registered in the Conveyance Office of the Parish of Orleans, Book 224, Polio 464. This deed was offered by plaintiff and shows that so far as the suit of the interdict, James D. Tracey, was concerned, who was one of the plaintiffs in the aforementioned petitory action, that a family meeting was held authorizing the curator to compromise said suit and to accept the consideration mentioned in said Act, to-wit: $125.00.

It is contended by the plaintiff that at the time of these two transfers by Washington J. Tracey and others to the defendant, a minor’s mortgage was outstanding against the property in favor of Elitia Tracey and other minors, whose tutor was Washington J. Tracey, and that . said minor’s mortgage was recorded against the property on October 5, 1904, in the Mortgage Office of the Parish of Orleans, Book 785, Polio 55, with the result that the defendant acquired said property burdened with this minor’s mortgage, as well as other incumbrances recorded against the said property, not necessary to be here enumerated.

But defendant contends that all of these mortgages were duly cancelled in the matter of the minors Elitia Tracey and others, No. 74,437 of the docket of the Civil District Court for the Parish of Orleans, by virtue of a judgment rendered therein, on the 3rd day of May, 1912. Plaintiff answers this contention, as already noted in discussing the pleadings herein filed, by the argument that the judgment of cancellation was null and void for the following reasons:

1.- — That defendant had no authority in law to authorize the cancellation and erasure of said mortgages.

2.- — -That there was no service made of a rule on the defendants to cancel said mortgages.

3. — That there was no valid judgment rendered, as there were no reasons for judgment, oral or written.

4. — That there was no evidence offered authorizing the cancellation of said mortgages; and

5. — That Washington J. Tracey, who sold the property to the defendant, burdened with such mortgages, could not have can-celled same without rendering an account of his tutorship to the minors and of his curatorship to the interdict, James D. Tracey, and without giving a special mortgage in lieu of the general mortgage authorized by the family meeting and homologated by court, none of which was done, and that William P. Tracey, later a curator of James D. Tracey, the interdict, could not have likewise cancelled said mortgages without due compliance with law.

These objections are met by contention of defendant that however irregular the proceedings may have been, that they cannot be collaterally attacked by petitioner, and that they relate to mortgages and encumbrances which could never have in fact borne on the property, for the reason that their author in title and heir, Michel (X Tracey, was dispossed of such property in 1885, when same was sold for taxes due the State of Louisiana, and that defendant’s author in title, Charles H. Gans, acquired said property by auditor’s deed under which the tax. sale originally arose, said Gans having been vested with said property by auditor’s deed January 21, 1903.

We find from the record before us that the property was sold at tax sale, as contended by defendant, and that same, as a matter of law, is quieted by Article 233 of the Constitution of 1898. It follows from these facts and our appreciation of the law that Washington J. Tracey and other heirs of Michael O. Tracey, were dispossessed of all right, title and interest in said property by virtue of the tax sale by which said property was adjudicated to the State of Louisiana on March 7, 1885. It likewise follows that whatever mortgages or encumbrances may have been recorded against said 'property in the name of any of the heirs of Michael O. Tracey subsequent to the acquisition of Charles H. Gans, under auditor’s deed January 21, 1903, they are of no effect, and cannot justify defendant in rejecting the title because of such encumbrances. It likewise follows that any of the proceedings, however irregular, in relation to the judgment of cancellation entered in the matter of the minors, Elitia Tracey and others, may be disregarded, and can in no manner throw a cloud upon the title now under consideration.

The property is vacant property and the title now offered by defendant goes back to the deed in 1903, over twenty-two years ago.

Article 2443 of the Civil Code reads as follows:

“He who is already the owner of a thing cannot validly purchase it. If he buys it through error, thinking it the property of another, the act is null, and the price must be restored to him.”

In the light of the foregoing Article, even if the defendant may be said to have purchased the property under the ’ quit claim deeds aforementioned and, therefore, to have taken same with the mortgages aforementioned, the fact is plainly established by the evidence that 'at the time of said deed, the defendant was the owner ■ of the property now in dispute, and, therefore, he could not. have purchased it from Washington J. Tracey or the other Tracey while burdened with encumbrances whi,ch might have arisen from the minor’s mortgage or other obligations outstanding against Washington J. Tracey and William P. Tracey, tutor and curator, respectively.

In conclusion, we find that the irregularities pleaded in respect to the judgment of May 3, 1912, recording the cancellation of the mortgages in question, are not well founded, for the reason that a certified copy of the judgment offered in these proceedings shows that in the rule to cancel, Washington J. Tracey and William P. Tracey, individually and as tutor and curator, respectively, were made parties to the rule and were present in court at the rendition of the judgment, as was the Recorder of Mortgages for the Parish of Orleans and other parties to the rule. Furthermore, defendant has offered and filed in the record a certified copy of a certificate from the Recorder of Mortgages for the Parish of Orleans, in which it is shown that by recordation of said judgment all of the aforesaid mortgages have been era'sed on the books of said Mortgage Office as of date December 19, 1921.

For the reasons hereinabove noted, we can find no error in the judgment which directs that the defendant shall convey to plaintiff, by valid deed and title, the property here involved. It appears, however, that the judgment provides for payment by defendant to plaintiff the sum of $6.00. This amount should be increased from $6.00 to $26.90, admitted by the defendant in its answer to the supplemental petition herein filed to be ■ due as over-payments on the purchase price or said property.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to increase the money awara therein stipulated from the sum of $6.00 to $26.90, with legal interest on said amount from December 18, 1909, until paid, and, as thus amended, that the judgment appealed from be affirmed, costs of this appeal to be borne by the appellant.