author: REYNOLDS, J. CARVER, J.

text:
    No. 1978.
    Second Circuit Appeal.
    MRS. M. J. NEAL v. WYATT LUMBER COMPANY, LIMITED.
    (April 11, 1925, Opinion and Decree)
    (June 27, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Railroads—Par. 59.
    Act No. 167 of 1910 requires that railroads shall so construct and maintain their crossings, including approaches, over public roads so as not to hinder, impede or obstruct^ safe and convenient use of the highways. Hence, corporation failing to do so is responsible in damages to travelers injured by reason of the bad crossings.
    (Civil Code, Art. 2315. Editor’s note.)
    2. Louisiana- Digest — Appeal — Par. 552, 554.
    The general rule of law is that a judgment does not become final until application for rehearing is finally passed on by the court to which the case has been appealed.
    3. Louisiana Digest — Appeal—Par. 706.
    The error complained of by plaintiff is a patent error apparent on face of the papers and is such an error as the court can and should correct without granting a rehearing.
    ON A REHE.ARING
    4. Louisiana Digest — Appeal—Par. 706.
    An error making plaintiff, to whom judg ment was given, pay cost is patent on the face of the record and should be corrected without a rehearing.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Sabine. Hon. J. H. Boone, Judge.
    This is a suit for damages for personal injuries sustained from being thrown from a wagon while it was crossing a railroad track of the defendant.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    R. A. Fraser, of Many, attorney, for plaintiff, appellant.
    S. D. Ponder, of Many, attorney for defendant, appellee.
   STATEMENT OF THE CASE.

This is a suit by Mrs, M. J. Neal against Wyatt Lumber Company, Limited, asking for $10,000.00 damages for personal injuries sustained by her through being thrown from a wagon on which she was riding as it was crossing the railroad or train track of defendant, Wyatt Lumber Company, Limited, where the said track crosses the Negreet-Sabine Town public road.

The defendant denies liability on the ground that if any injury was suffered by plaintiff it was caused by the roughness of the crossing caused by heavy rains, overflow and washout; and further pleads, in the alternative, that plaintiff was guilty of contributory negligence, recklessness and carelessness, in that she was .riding sitting in a straight chair just behind the spring-seat in a two-horse wagon.

On these issues there was a trial in the lower court and judgment was rendered in favor of the defendant. Plaintiff has appealed. Judgment reversed and rendered.

OPINION.

The first question presented is whether or not the condition of the crossing was due to recent heavy rains, overflow or washout.

In the evidence it is not stated by- any witness that there had recently been any heavy rain, and all of the witnesses agree that the crossing was entirely above overflow. There is no evidence of any washout at this point.

The evidence as a whole shows that the crossing had not been repaired in over two years.

Hoyt Neal testified, page 46:

"Q. Have you known it to be in any different condition from what it was on the day that the accident happened and the day that we took the pictures?
“A. Well, when they first put the track across there they kind of half way fixed it, — not much, — but it didn’t stay that way but a short time and it got tore up going across with log wagons and one thing and another and they never repaired it any more.”

Prom all the evidence, we have concluded that the defence of the defendant on this point has failed.

The next question to be considered iS' whether plaintiff, by riding sitting in a straight chair in a wagon just behind the spring seat, to which she was holding at the time of the accident, was guilty of negligence and contributed, by her own carelessness, to the accident.

The only witness introduced on this point was Mr. J. D. Stroud, who testified, page 64:

“Q. You have seen that all your life?
“A. Yes, sir.
“Q. And you have seen many times women sitting in ordinary straight rawhide or cane bottom chairs and riding. You have seen that all your life?
“A. Seen it often.
“Q. It is a common sight in the country?
“A. Yes, sir.”

Prom this testimony of defendant’s witness we conclude that plaintiff cannot be held to have contributed to the accident by carelessness, or to have been guilty of contributory negligence by riding sitting in a straight chair in the back of a wagon conveniently located so that she might hold on to the back of the spring-seat.

This brings us to the question as to the condition of the crossing.

Hoyt Neal, page 45, testified:

“Q. Now, I will ask you whether or not there were any planks or anything between the railings?
“A. No, sir.
“Q. There were not at that time?
“A. No, sir.”

And, on pages 47 and 48:

“Q. I will ask you whether or not the condition of that crossing was such that it was convenient and safe to drive a wagon across?
“A. No, it was not safe, anybody who seen it would know that.
“Q. I will ask you whether or not it was on one of the public road crossings leading from your residence to the place where you wanted to go that day?
“A. Yes, sir, -one way.”

E. R. Stroud, testified (page 57):

“Q. I will ask you whether or not that crossing was in a good, well kept condition, or whether or not it was very rough and hard to get across with a wagon, team, vehicle, at the time that we looked at it?
“A. Well, it was in pretty hard shape.”

And, on page 62:

“Q. How did you go — go down on this road?
“A. Yes, sir.
“Q. Mr. Ponder has asked some questions about the road that detoured around through the camp. Why didn’t you use that road?
“A. Well, I did coming back.
“Q. Why did you use it coming back?
“A. I was afraid I might fall off of some of them railings.”

Dan E. Miller testified, page 66:

“Q. I will ask you whether or not your wagon jolted and shook the people in the wagon about at the time that you crossed that tram road?
“A. Yes, sir.
“Q. Was that caused by reason of the roughness of the track?
“A. Yes, sir.”

And on page 67 the same witness testified:

“Q. I will ask you whether or not there was sufficient hill there to make you put on your brake or whether you put it on because of the roughness of the crossing?
“A. Of course it was rough and I didn’t want the wagon to run down and run over the team or nothing like that.”

T. S. Mathews, wod foreman for the defendant company called on behalf of the defendant as a witness testified (page 71):

“Q. It was very rough, was it not?
“A. Yes, sir.”

From all the evidence of both plaintiff and defendant we have reached the conclusion that the crossing over defendant’s railway or tram track at the public road crossing was in a dangerous and unsafe condition.

Mrs. M. J. Neal, the plaintiff, testified:

(Page 2):
“Q. Did you have an injury or severe fall in the latter part of the spring of 1922?
“A. Yes, sir.”
* * * *
“Q. Was that on the public road in Sabine parish?
“A. Yes, sir, public road.”
(Page 3):
"Q. Where did you get the fall, — at the railroad track or somewhere else on the roaa?
“A. At the railroad track.
“Q. What caused you to fall out of the wagon.”
“A. Well, it was the wagon jumping off that track — the chair turned and I fell.”
(Page 4):
“Q. Did you fall out at the side of the wagon?
“A. Right side of the wagon.”
* * * *
“Q. Were the horses running or cutting up in any way?
“A. No, sir; not a thing in the world. He throwed on the brake as he started down and that is the last thing I know.”
(Page 15):
“Q. You tell this court that you fell on the crossing?
“A. As the wagon jumped off of the crosstie I fell off.
“Q. As it jumped off the crosstie?
“A. Yes, sir.”
(Page 81):
“Q. Mrs. Neal, I want to ask you what threw you out of the wagon on the day that you had the accident?
“A. The jolt — the jumping off of that place.
“Q. I will ask you whether or not reaching for the jug of water tilted or threw your chair over to that you fell out?
“A. No, sir, it was the jolt that throwed me out.
“Q. What caused the jolt, Mrs. Neal?
“A. It was jumping off the bluff — whatever it was.”

Act No. 167 of 1910 requires that railroads shall so contruct and maintain thier ■crossings, including approaches, over public roads so as not to hinder, impede or obstruct safe and convenient use of the highways. Hence, corporation failing to do so are responsible in damages to travellers injured by reason of the bad crossings.

Darby vs. New Orleans, T. & M. R. Co., 139 La. 213, 71 South. 490.

Jones vs. Tremont Lumber Co., 139 La. 616, 71 South. 862.

Under the law and the evidence above quoted we are of the opinion that plaintiff is entitled to judgment for the injury she received by being thrown from the wagon as she was crossing the railroad track on the public highway.

This brings us to the question of damages.

The evidence shows that plaintiff paid, for doctors’ bills, $22.50 and for medicine, $25.00. Her arm was broken in the elbow and she received a permanent injury to said arm and hand. She can move her fingers slightly, but the movement in same is considerably impaired; and she cannot raise her arm to her head without using the left arm to lift the arm injured.

After going carefully over all of the evidence as to the damage caused plaintiff, we are convinced that for the pain and suffering endured by her and for the partial loss of the use of her arm she is entitled to $1,000.00 damages.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed, and it is now ordered, adjudged and decreed that plaintiff, Mrs. M. J. Neal, do recover of defendant, Wyatt Lumber Company, Limited, judgment for the full sum of one thousand and forty-seven and 50-100 dollars with five per cent per annum interest thereon from final judgment herein; plaintiff to pay the costs in both courts.

ON APPLICATION OF PLAINTIFF, APPELLANT, FOR A REHEARING

REYNOLDS, J.

In this case both plaintiff, appellant, and defendant, appellee, filed motions for rehearing. The defendant’s motion has heretofore been overruled. Plaintiff’s motion has not heretofore been passed on.

Plaintiff, in her motion, calls the court’s attention to the fact that the decree rendered by this court gave the plaintiff judgment for $1,000.00 and cast the plaintiff for the costs. This was error, for under the law the costs should follow the judgment, and it was error, therefore, to place the costs on the plaintiff, in whose favor judgment was rendered; The general rule of law is that a judgment does not become final until application for rehearing is' finally passed on by the court to which the case has been appealed.

Harrison vs. Ottman, 111 La. 730, 35 South. 844.

The error complained of by plaintiff is a patent error apparent on the face of the papers and is such an error as the court can and should correct without granting a rehearing.

American National Bank vs. Reclamation Oil Producing Association, 156 La. 660, 101 South. 10; and authorities there cited.

It is therefore ordered, adjudged and decreed that the judgment heretofore rendered in this case be recast so as to read as follows:

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed, and it is now ordered, adjudged and decreed that plaintiff, Mrs, M. J. Neal, do recover from defendant, Wyatt Lumber Company, Limited, judgment for the full sum of one thousand and forty-seven and 50-100 dollars with five per cent per annum interest thereon from final judgment herein; all costs to be paid by the defendant, Wyatt Lumber Company, Limited.

And, having corrected the error complained of, rehearing is refused.

ON APPLICATION FOR REHEARING.

CARVER, J.

In our original opinion we held that defendant was guilty of negligence in failing to comply with its statutory duty to keep the crossing over its railroad track in safe condition; and that the plaintiff was not guilty of contributory negligence in riding on a chair in the wagon, which was a common custom • in the country.

In his application for rehearing, learned counsel of defendant makes no particular complaint against these holdings but urges very earnestly that the plaintiff’s act in reaching for the water jug was negligence and contributed to the accident, wherefore, he claims, she is without right of recovery.

Of course the law is well settled that an. injured party cannot recover, even though his adversary was guilty of negligence, if his own negligence contributed as a proximate cause to the accident causing the injury.

But we do not think that the plaintiff’s act in reaching for the jug was negligence on her part. She testifies positively, and it is not disputed, that while reaching for the jug with her ■ left hand sh'e held on to the spring seat with her right hand. She admits she leaned over, but says, (page 24), that, she did not get up; (page 30), that her reaching did not cause her to fall; (page 30), that the jug was a little to her left and that she fell on the right side of the wagon; (page 101), that “the jolt — the jumping off that place” (meaning the railroad track) was what caused her fall.

She was asked, (page 101) :

“I will ask you whether, or not reaching for the jug of water tilted or threw your chair over so that you fell out?”

And she answered:

“No sh-, it was the jolt that throwed me out.”

Counsel lays great stress on the testimony of plaintiff’s son-in-law, Dan E. Miller,, as to an admission made by plaintiff as follows:

“Q. Didn’t you hear her say that after * * * Didn’t Mrs. Neal tell you that * * (counsel reading from document) ‘In crossing railroad track that jug of water, which was in the wagon floor near the chair which she was sitting in, fell over and in reaching for jug of water to set it up again her chair tilted and she got over-balanced and fell out? ’
“A. She did.”

In the first place, testimony as to admissions of a party is notoriously weak. Besides, the undisputed testimony is that though in reaching for the jug she leaned over a little to her left, yet when she fell out'it was to the right of the wagon. This circumstance alone it seems to us, is sufficient to show that her leaning over was not what caused her to fall out, even if she did tilt the chair in leaning; the undisputed testimony also being to the effect that while leaning over and reaching for the jug with her left hand she was holding to the spring seat with her right. We do not think her act in reaching for the jug was one of negligence on her part. This holding with one hand was sufficient, in our opinion, reasonably to secure her safety in the wagon, and would, we think, have done so, but for the sudden jolt caused by the condition of the track as the wagon dropped off of it.

Rehearing refused.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 1986
    Second Circuit Appeal
    BRICE W. WHITE v. VICKSBURG, SHREVEPORT & PACIFIC RAILWAY COMPANY
    (April 11, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Railroads—Par. 84, 88.
    Under Act No. 70 of 1886, in suits against railroad companies where stock is killed, the burden of proof is on the railroad to prove that it was not negligent.
    (Civil Code, Art. 2315. Editor’s note.)
    2. Louisiana Digest — Appeal—,Par. 625.
    The finding of the trial judge on matters of fact being clearly correct is affirmed.
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville, Hon J. E. Reynolds, Judge.
    This is a suit to collect the value of two mules killed by a train.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      P. E. Brown, of Arcadia, attorney for plaintiff, appellee.
    Goff & Barnette, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit to recover $300.00, the value of two mules run over and killed by a passenger train operated by the defendant company.

He alleges carelessness and negligence on the part of the defendant company and its employees.

Defendant answered admitting that the mules were killed by one of its trains, but denied liability on the ground that the killing of the mules was unavoidable; and it sets up that those operating the train did all in their power to avoid the accident.

The mules were killed three and a half miles west of Arcadia by an east bound passenger train. It seems that at the place where they were killed there is a public road which runs north and south, crossing the railroad which runs east and west. About thirty feet from this public road crossing, on the east, is a cattle gap. One of the mules was found dead near the end of the cross-ties on the north side of the railroad about fifty-three steps from the cattle guard. None of the witnesses who saw this. mule after it was dead saw any injuries on it. The other mule was found dead at some distance south of the track, about seventy nine or eighty steps from the cattle guard. This one had its head cut off and was otherwise injured.

There was no blood on the track and nothing to indicate that the mules were dragged along the track before being finally knocked off.

Act No. 70 of 1886 provides that in suits against railroad companies for the loss of stock killed by them all that is necessary, in order for plaintiff to recover, is for the owner to prove the killing, unless it be shown by the defendant that the wiling was not the result of fault or negligence on its part. In other words, the plaintiff is relieved of the burden of proving negligence on the part of defendant when it has established that the stock was killed by the defendant.

The killing of the stock and its value having been admitted by the defendant, the plaintiff rested his case after having introduced testimony as to the destance it was from where the mules were found to the public road crossing and the cattle-guard.

The defendant called as a witness S. B. DeLee, the engineer, and James Washington, the fireman, who were in charge of the locomotive at the time the mules were killed.

Mr. DeLee says that when the train was about one hundred yards from the crossing he saw the mules cross the railroad track on the public road going from south to north; that they were far enough across the track, north, to get out of his sight; and that when the engine was within about thirty feet of the road crossing both of the mules, running south, jumped into the cattle-guard which is .about thirty feet east of the road crossing.

He says, at another time, that the mules jumped into the cattle-guard when the engine was about thirty feet from them.

He claims that he applied the brakes, but, of course, could not stop the train in that short distance; the train going at the rate of about twenty-five miles an hour.

He makes it plain his testimony that the mules did not get on the track at the crossing and fun east, the direction the train was going, to the cattle-guard, but says they jumped into the cattle-guard from the north and that they were both hit while in the cattle-guard.

James Washington, the fireman, did not see the mules until after they were hit, but says he felt the brakes take effect.

Both Mr. DeLee and James Washington say that the bell was ringing and that the whistle was blowing for the crossing.

We are constrained to believe that Mr. DeLee’s version of the manner in which these two mules came to their death is erroneous. Conceding that he is sincere, we must conclude that his vision or mem ory or possibly both are faulty. In the first place it does not seem reasonable that the mules after having run across the railroad track from the south to north on the public road, would have stayed on the north side until the engine was almost at the crossing and then would have so suddenly changed their minds and determined to get back on that side of the track from whence they had just come. Mr. DeLee says that when they jumped into the cattle-gap he was only thirty feet from them. It seems most strange that they would jump in front of the train just in' time to be killed. Dumb animals, even human beings have been known to do such things but that was due to fear or excitement; but there was nothing to excite these mules or to scare them. They had just crossed the track in safety, according to Mr. DeLee’s statement, when the train was one hundred yards away. They were on an open roadway, with nothing to frighten them and cause them to want to get back. And again it seems remarkable to us 'that both of these animals should jump into this cattle-gap at exactly or practically the same time and both get caught.

The mules were not running down the track when they jumped into the cattle-guard. Mr. DeLee was asked:

“Q. In what direction were the mules going when they jumped into the cattle-gap?”

And he answered:

“A. From the north side of the track; left side from me.”

This cattle-gap is about thirty feet from the crossing. DeLee says he was about thirty feet from the cattle-gap when the mules jumped into it, so that he must have been at the crossing when the mules got to the cattle-gap. The mules were, therefore, attempting to cross the railroad not at the regular crossing but east of it. DeLee says that the' mules were both caught in the cattle-gap and that he knocked them out. The mule on the south side of the track, was found seventy-nine or eighty steps from the catle-guard with his head cut off. Supposing that the witness who stepped the distance from the mule to where DeLee says he hit them had a stride of two and a half feet, this mule was lying about two hundred feet from where it was struck; that is, two thirds of a city block. It is asking too much of the court to ask it to believe that a train could hit a mule caught in a cattle-gap and knock it two hundred feet. A mule might be struck and caught under the train in some way and be dragged quite a distance along the track and then thrown off. Such could happen. .But in this case there was no blood on the track nor was there any evidence that these mules were dragged along the track at all. The witnesses say they saw mule tracks along the railroad track east of the cattle-gap the direction the mules were going and that they were fresh tracks. This strengthens our conviction that the mules were not struck at the eatle-gap but at some point east of there and that Mr. DeLee is altogether mistaken in his version of the accident.

There is some testimony about the track being fenced, but the proof shows that the fence was in such bad repair that it might be considered no fence’ at all.

The burden was on defendant to show that it was without fault. It has failed to make that showing.

We see no error in the judgment appealed from and it is therefore affirmed, with costs.


author: CARVER, J.

text:
    No. 1987
    Second Circuit Appeal
    D. R. SHEHEE v. HENRY JOHNSON ET AL.
    (April 11, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court where clear correct is affirmed.
    2. Louisiana Digest—
    The burden of proof is on the plaintiff. Therefore, where in a rent claim he fails to prove that cotton seized was grown on his land, he cannot enforce a lessor’s privilege on it.
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville, Hon. J. E. Reynolds, Judge.
    This is a suit against the owher and' seizing creditors to have privileges recognized on cotton and cottonseed which were seized by creditors above mentioned.
    There was judgment for plaintiff and defendant creditors appealed.
    Judgment amended and affirmed.
    J. Rush Wimberly, of Arcadia, attorney for defendants, appellants.
    Goff & Barnett, of Arcadia, attorneys for plaintiff, appellee.
   CARVER, J.

C. C. Allums and W. B. Allums, in one suit, and E. R. Burkhalter, in another suit, having seized two bales of cotton and cotton seed under execution against Henry Johnson in the Justice’s court of ward 4, Bienville parish, Louisiana,

D. R. Shehee brings this suit in the District Court in and for Bienville parish claiming privileges against the cotton and seed, as follows:

1. Ninety dollars for necessary supplies advanced Johnson to make the crop by O. C. Thomas Company for which Shehee was security and which he paid.

2. Eighty-five dollars on a note given Shehee for money advanced by him to Johnson to buy necessary supplies for that purpose.

3. Five dollars cash advanced for the same purposé.

4. Twenty dollars for rent of land belonging to Shehee on which it was claimed part of the cotton was raised.

5. Fifty dollars rent of land belonging to Giddens Petroleum Company, for which debt Shehee was responsible and after-wards paid and on which land some of the cotton was raised.

Plaintiff sued not only Henry Johnson but also Burkhalter, the Allumses, and the constable and asked the District Court to rank the privileges.

Defendants make no objection to the plaintiff’s course in asking the District Court to rank the privileges instead of referring the matter to the court having jurisdiction of the property seized for the purpose of such ranking.

The answer of Burkhalter and the Allumses is a general denial.

Johnson makes no defense.

The District Judge gave judgment as prayed for, less $2.10 on the Thomas Company supply account which the proof showed was $87.90 instead of $90.00.

The defendants Burkhalter and C. C. Allums and W. B. Allums appeal, but Johnson does not.

There is little or no dispute that the Thomas Company advanced $87.90 for necessary supplies to make the crop or that Shehee himself advanced $90.00 for that purpose, or that Johnson owed the rent claims of Shehee and the Giddens Petroleum Company.

The argument in this court is, that, for various reasons Shehee is not entitled to the privileges claimed.

As to the Thomas Company account, defendants urge that Shehee cannot recover Because the account was made out against “D. D. R. Shee, for Pinkie Johnson” and so kept on the company’s hooks, and because the transfer of the account to Shehee was made by the attorney of the company without proof of his authority to do so.

We think it immaterial how the company kept the account or made it out. Pinkie was the wife of Henry Johnson, between whom and herself the law presumed the existence of a marital community. The testimony shows that Pinkie and Henry did not have separate crops but cultivated the land together. As head and master of the community Henry was responsible for the debt and the supplies having been used to make the crop, the debt is entitled to privilege. Civil Code, 3217.

The testimony further shows that Shehee arranged with the Thomas Company to furnish the supplies and made himself responsible to it therefor. If the company’s attorney had no authority to transfer the account, he is presumed to have’ had authority to collect it. The act of transfer introduced in evidence recites that Shehee paid it and tbe account itself shows, under date of November 24, 1922 (the day before the sale): “By cash, Dr. Shehee, $87.90”. This payment, had there been no transfer at all, would carry a legal subrogation under Civil Code, 2161, which provides as follows:

“Subrogation takes place of right________________ 3. For the benefit of him who being bound with others or for others for the payment of the debt had an interest in discharging it.”

As to the Giddens Petroleum Company rent claim, the testimony of Shehee is that Johnson rented a tract of land from the Giddens Petroleum Company for the year 1922 for $50.00 and that he told Giddens he would be responsible for it. Goff says Shehee paid this rent before the suit was filed, and thé transfer from the Giddens Petroleum Company is dated November 16, 1922 — eight days before the suit was filed. Burkhalter testifies that the biggest part of the cotton was raised on the Giddens place. He further says that Giddens told him that part of this claim was for rent of 1921. But we are inclined to think he is mistaken about this, as we gather from an offering of record evidence (sheriff’s deed from Henry Johnson to Giddens Petroleum Company) which, though, was left out of the transcript, that the Giddens Petroleum Company did not own the land in question during the year 1921 but that it belonged that year to Johnson himself.

We think, under this proof, that the Giddens rent claim carried a privilege on the cotton seized.

In our opinion, though, the Judge erred in allowing a privilege for the $20.00 rent due Shehee for his own place. The only testimony on his claim is as follows: (page 8):

“Q. Now I believe you state here that he owes you $20.00 for rent. Just tell us about that?
“A. That was a piece of land that belonged to myself that I rented to Henry Johnson.
“Q. Do you know whether the cotton that was raised on any part of it was raised on this land?
“A. Yes, sir; a part of it was raised on that land; I don’t know how much of it, but part of it.

We do not think this sufficient to show how much, if any, of the cotton seized was raised on this property.

For the foregoing reasons, the judgment of the lower court is amended by disallowing the privilege claimed by plaintiff for the rent of his own land, namely, $20.00, and the interest thereon, and that, as thus amended, it is affirmed.


author: CARVER, J. ODOM, J., REYNOLDS, J.

text:
    No. 2067
    Second Circuit Appeal
    PATRICK H. CONNELL v. UNITED STATES SHEET & WINDOW GLASS CO.
    (April 11, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant — ■ Par. 159.
    Under Employers’ Liability Act No. 20 of 1914, wbere injured employee had a’ severe case of Bright’s disease whei the accident occurred, he can recover compensation even though the accident accelerated the disease and both together created the disability. The effect of the accident and those of the disease cannot be separated.
    2. Louisiana Digest — Master and Servant— Par. 154.
    Under Sections 11 and 15 of Act No. 20 of 1914, the Employers’ Liability Act, the fact that the gate watchman of the employer and another employee were notified of the accident at the time of the accident or death is sufficient notice, to the employer to enable the injured employee to bring suit.
    3. Louisiana Digest — Master and Servant— Par. 154.
    Under Section 12 of Employers’ Liability Act No. 20 of 1914, where it is not showh that the- notice required therein was posted by the defendant nor that any prejudice has been suffered to defendant by want of notice of the accident, the notification to the night watchman and another employer at the time of the accident is sufficient.
    4. Louisiana Digest — Master and Servant — ■ Par. 160 (k).
    Section 22 of the Employers’ Liability Act No. 20 of 1914 contemplates that services of attorneys and physicians may be secured out of the amount collected as compensation, and therefore such fees are excepted from the prohibition against assignment. The requirement that the fees shall be reasonable and approved by the court protects the injured employee.
    5. Louisiana Digest — Master and Servant— Par. 160 (k).
    An attorney’s fee of one-third the compen- • sation recovered is reasonable.
    6. Louisiana Digest — Master and Servant— Par. 154.
    Under Subsection 4 of Section 8, as amended by Act 43 of 1922, where disability continues six weeks or longer, then after six weeks have elapsed compensation for the first week shall be allowed.
    7. Louisiana Digest — Master and Servant— Par. 160 (i).
    Where the heirs of an injured employee have made themselves parties but the widow has not, although she has a right so to do, under Subsection 4 of Section 18 of Employers’ Liability Act No. 20 of 1914, the court reserves the rights of the widow to make herself a party to the suit if she so desires.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    This is a suit for compensation under Employers’ Liability Act No. 20 of 1914.
    There was judgment for plaintiff and plaintiff appealed.
    Judgment increased and affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   CARVER, J.

Plaintiff sues for compensation under the Workmen’s Compensation Law for injuries received when he accidentally fell down a flight of steps at defendant’s glass factory while performing his duties as nightwatchman. He claims $250.00 for medical attention and nursing, $18.00" a week for 100 weeks for loss of his teeth, and $18.00 a week for 400 weeks for total disability to do work of any reasonable character.

Defendant answered that for a long time prior to the accident plaintiff had suffered from high blood pressure, uraemic poison and other troubles and diseases that his present condition is not and was not caused by any injury arising out of or in the course of his employment or sustained while employed by defendant.

There is no dispute as to plaintiff’s falling down the stairs nor as to his condition at the time of the trial being one of disability, though defendant denies that it was total.

It is established that, prior to the fall, plaintiff had high blood pressure, pyorrhea and kidney trouble and had at times dragged his leg. The main dispute is as to whether his disability was produced by the fall or by his previous ill health.

Plaintiff’s counsel claim that if the disability is due to his prior condition of ill health that condition was at least aggravated by the fall and that this is sufficient ground for a recovery.

Plaintiff was 52 years old and had been working for defendant about a year and a half before the accident, which occurred at midnight on February 9, 1923. Before entering defendant’s employment he was seemingly in good health. Dr. Tucker, says, page 32, he saw him practically every week the year before that; that he worked on public road work that year, which was very hard work; that for about four years before that plaintiff was super intendent on a farm; that he practiced in his family but never had occasion to give plaintiff, himself, any medicine, and (page 38) that he had the appearance of a strong, healthy man, but that he had made no examination of him at that time

Planitiff had chills . and dengue, fever while working for defendant, the time not being very definitely fixed. This kept him in bed two weeks or longer (page 6). He admits he consulted Doctor Woolworth of Keithville and Doctor Cannon of Shreveport about his kidneys, and that they sometimes hurt him, but never for more than a little while at a time. The consultation with Doctor Woolworth was perhaps before he went to work for defendant.

Besides the dengue fever and kidney trouble he had on two or more occasions something the matter with his right leg which caused him to drag it. He says it was due once to his having to throw most of his weight on that leg while drilling holes in the wall for fitting pipes (page 16) but that the trouble lasted then only two or three days. He says (page 29) that on another occasion he had boils ' on both legs and could not walk straight while he had them. He denies that he was ever laid off for sickness by defendant but admits that he stayed away two days when his foot bothered him, and says this was six or seven months before the accident (page 17). The boil trouble, he says, was in 1921 and lasted three or four days.

His son, B. M. Connell, says he did not see him often the three or four years before he began working for defendant but saw Kim once or twice a week snce, and that he knew of no sickness he had during that time except the “flu”, probably meaning the attack of dengue.

M. A. Wilson, who, for ten months or so before the accident, had regularly vis* ited plaintiff’s home three to five times a week, says he saw nothing the matter with him and did not know of his high blood pressure, kidney trouble or pyorrhea.

J. S. Thompson, who began working for defendant in July, 1921, and has known plaintiff since that time, in speaking of plaintiff’s condition prior to the accident, says (page 53):

“Mr. Connell had been sick and laid off or something on account of being sick and came back on tbe 20th of January when he was dragging his right leg coming up the walk to the gate where I sat.”

This was about twenty ' days before thej accident.

After considerable testimony as to other occasions on which he said the plaintiff was sick and dragged his leg, he testified, page (58):

“Q. And he came up there dragging his leg?
“A. Yes, on January 20th. “
“Q. How long did he drag his leg?
“A. He got up there and left --
“Q. You saw him drag it before that time?
“A. Yes, he got in that fix before.
“Q. When?
“A. Some time in the fall, but I couldn’t state the exact date.
“Q. It might have been in October?
“A. Yes, it might have been.
“Q. How long did he drag it then?
“A. I couldn’t say.
“Q. Are these the only two times you saw him dragging it?
“A. Yes, only two times I am positive about.
“Q. You saw him on January 20th and he was dragging it?
“A. Yes. '
“Q. And you never saw him dragging it any more?
“A. No, after he went back to work he seemed to be all right.
“Q. You never saw anything wrong after that?
“A. No, sir.”

Thompson also says (page 54) that plaintiff always talked a little bad ever since he knew him.

J. E. Hillier, under whom plaintiff had worked, testified (page 62) that the first time plaintiff got sick was in the summer of 1922 when hé stayed home a few days and said the doctor pronounced his trouble high blood pressure; that he 'came back and worked until cool weather, when he came out one morning dragging his foot and said his knee hurt him; that he worked in the cold until 10 or 11 o’clock when he had to go home and came back Tuesday of the next week; that they then had to work in a mud hole all day, when plaintiff went home and had dengue fever, and when he came back he didn’t seem like the same' man any more; that he met him on the road after that and he looked bad and his leg was stiff and dragging (page 63).

On cross-exaination he testified (page 64) that after the summer attack plaintiff came back and did hard manual labor as before; and further, (page 65):

“Q. I believe you stated in October he came back sort of dragging his foot?
“A. No, he worked a right smart little while and he went home and came back dragging his leg.”

He further says he did not think plaintiff had risings on his leg as he was intimate with plaintiff and he would likely have mentioned it.

Plaintiff worked at the pipe job until it' was finished and was then laid off for a while but not on account of sickness and was afterwards employed as nightwatchman (page 67).

Hillier also testified, further (page 68), that Connell was a hard worker, and that the job of nightwatching was a hard one, requiring a pretty strong and sound man, though a crippled man could do it tolerably well.

Hillier was not asked as to whether plaintiff’s speech was .defective before the accident or not.

Plaintiff says (page 98) that Thompson is mistaken about his dragging his leg in January; that this occurred in the fall, and that he had no trouble with his leg in January.

We are not informed whether defendant kept its records in a way that would enable it to prove how often or for what length of time plaintiff had. been laid off on account of sickness; it seems, though, that if either his speech or his leg had been affected seriously or for any considerable length of time, it easily could have been proven by plaintiff’s fellow workmen.

Our conclusion from the evidence is that while his health had been impaired to some extent by the dengue fever, and while the kidney disease had made some progress, yet it had' not made such inroads on his. constitution as to incapacitate him from performing his duties as nightwatchman. There is no pretense that he did not perform them satisfactorily, even after the 20th of . January when Thompson says he was dragging his leg, and up to 12 o’clock on the night of the accident, at which time he had punched twelve clocks six times, the clocks being something over two hundred feet apart.

Plaintiff says he stumbled, missed the banisters and somersaulted down the stair.way, landing on the bottom step but one; that he got up in about ten minutes, went downstairs and walked across the railroad into and through a box car, the floor of which was level with the ground; that he tried to jump to the level ground on the other side, missed and fell on his shoulder; that he lay there longer than after the first fall; that he then started to the box factory and ran into a pile of steel; that he got to the box factory but found no one there and then went to the office where he found the gate watchman who sent him home in an automobile. On arriving at home he lapsed into a semi-comatose condition which lasted about two weeks.

Doctor Harmon was called in and says he was in an unconscious condition and had some scratches on his face and both legs about half-way between the knee and the foot; that he did not make further ex amination that night but did next morn ing and found he had high blood pressure and pyorrhea; that he diagnosed the case as uraemic poisoning and treated him for that; he did not think the fall had much to do with plaintiff’s condition at that time (page 86); and that, but for other complications, plaintiff should have been able to resume work in twelve or fifteen days. He had plaintiff’s teeth pulled, thinking that would remove a source of infection and relieve the kidney trouble. He thought he was partially paralyzed, having less strength in his right arm than in his left.

Doctor Tucker visited plaintiff the next two days after the accident but finding Doctor Harmon in charge did not go into his physical condition to any extent. He did not think there was any paralysis, though he found plaintiff unconscious.

Doctor Gorton (page 89) saw plaintiff once while he was unconscious, consulting with Doctor Harmon, with whose opinion as to Bright’s disease .and uraemic poisoning he agreed. He was not asked as to paralysis.

At some time after regaining consciousness, the time not being very definitely fixed, plaintiff resumed his job as nightwatchman, but says (page 27) he only worked ten days when he got sick and when he went back defendant laid him off, and that he was not able to do the work because his leg would not stand it. He says (page 12) that he got a job for a month or two as nightwatchman for M. & A. Company, Texas avenue, at $20.00 per week (page 13), remained with them from July 6th until October 3rd, 1923, but with intermissions on account of sickness.

The trial was had October 9, 1923, and we are informed the plaintiff died May 19, 1924.

At the time of the trial plaintiff was found to have very high blood pressure, 218 high and 140 low once, and 238 high and 163 low once, whereas it should have been 140 and 90. His urine showed much albumen and many casts, denoting kidney disease of long standing. His speech was indistinct and his right leg somewhat smaller and weaker than the left, and he was to some extent paralyzed.

Five physicians testified as to the cause of his condition then and also as to the cause of the attack he had just after the fall. Four of these, Walke (page 72), Harmon (page 80)), Gorton (page -90) and Cassity (page 95) say the fall could not have produced uraemic coma. Tucker was not specifically asked as to this.

As to his condition at the time of the trial, none of the physicians thought it due solely to the fall and all thought his kidney .trouble responsible for it, some more and some less; but most of them thought the fall aggravated or accentuated it. Tucker says (page 34):

“Q. Then, you give it as your opinion-that if this fall isn’t entirely responsible for his trouble it might, with all probability, have accentuated it?
“A. Yes, sir.
“Q. And made it in the state it is today?
“A. Yes, sir.”

Gorton says (page 91):

“Q. Has that fall that he claims to have had, has that anything to do with his present condition of health?
“A. No, I do not think so.”

Further (page 92):

“Q. Doctor, if he stumbled and fell, and was in bad condition, it would be calculated to make it worse and today you would say that his condition, if he took such a fall as that, would be worse than it would-have been if he had not fallen?
.“A. Yes, sir; a fall would have made the condition worse.”

Cassity (page 94) says:

“Well, such a fall as that would aggravate most any disability or disease that a man might have; there would naturally be a severe shock in a fall of that kind, to say the least of it.”

And further (page 97):

“Q. Supposing that this man had that kind of thing, assuming that he had such a shock, such as produced by falling down a stairway, then is it reasonably probable that that shock, this injury aggravated and increased the extent of his injuries?
“A. Undoubtedly it would.”

Doctor Harman says (page 84):

“Q. Would- you say the probabilities are it did do him harm? We will say he. was already in this condition but was able to do strenuous walking, the kind of work a crippled man couldn’t do, would you say that kind of fall down a forty-foot flight of steps rolling and tumbling, that that fall didn’t probably increase and aggravate the injuries which he already had?
“A. ' I couldn’t say it didn’t.
“Q. Don’t you think it would?
“A. It is possible it might aggravate it, yes.”

Doctor Walke (page 72):

“Q. Was there anything in the history of his case and the condition as you found it to show that the fall might have caused that present condition?
“A. No, sir.”

He was not asked the direct question whether the fall could have aggravated the kidney trouble.

Continuing, he testifies:

“Q. I will ask you from the facts you have heard stated from the plaintiff himself and from other testimony, what, in your opinion, is the cause of plaintiff’s condition today?
“A. He has had either a mild stroke of apoplexy or urinic trochar from the kidney, that is the two together. This is often the danger with arterioschlerosis, they go together. We often find the three together. The blood pressure and urinic condition of the kidneys.”

He further says (page 71) that a man with high blood pressure and kidney trouble has not got a normal sense of balance and is likely to stumble and fall, and also that dragging the leg is a symptom of high blood pressure and kidney trouble (page 78).

Doctor Harmon says (page 84) that plaintiff had a cerebral hemorrhage producing slight paralysis, but was uncertain what caused the hemorrhage, saying (85) that he might have it with normal pressure but that the fall was more likely to bring it on.

Doctor Gorton says (page 91), a fall such- as plaintiff ' had might bring on paralysis but that the fall might be caused by the kidney condition rather than the kidney condition be caused by the fall.

Doctor Cassity says (page 95), the fall would have reasonably accounted for the cerebral hemorrhage which would • result in paralysis of one or more limbs.

He says, further, (page 95:

“Q. Now, taking it • for granted that this man was a man that was able to do hard work, walk, such work that a. disabled man could not do, as proven in this case, would it be more probable that he received that cerebral hemorrhage in that fall than it was that he just toppled over?
“A. Well, in all probability, it would be hard to make an accurate statement along that line; the man had very high blood pressure at the time of his injury, or just preceding his injury; of course, he could have had cerebral hemorrhage without having any accident in the world, but I think perhaps that most of us would figure, perhaps, if the man was going along and working, and so far as we knew carrying out his duties, as he was supposed to do, then suddenly have a fall down stairs, I believe that most of us would assume that the fall caused the cerebral hemorrhage rather than it preceded the fall, but one might precede the other.”

In Hicks vs. Meridian Lumber Co., 152 La. 975, 91 South. 903, the co.urt says:

“It is quite immaterial for the purposes of this case whether the alleged strain brought on the aneurism, or merely hastened the inevitable rupture; for this court would allow compensation in either case.
“In Craft vs. Lumber Co., 151 La. 281, 285, 91 South. 736, 737, we allowed compensation although we were ‘strongly persuaded from the evidence that at the time the plaintiff received the blow in the lower part of the abdomen he had a hernia in process of development, which was quickened and greatly accelerated by the blow he received.’ ”

In Hooper vs. Standard Ins. Co., 166 Mo. App. 209, 148 S. W. 116:

“Where a man is so afflicted that he will dies from such affliction within a very short time, yet, if by some accidental means his death is caused sooner, it will be a death from ‘accident’ within the meaning of * * * an accident insurance policy.”

In Carter Packet Co. vs. Reinhardt, 13 Orleans Appeal 462, it was held that:

“Where the accident was the immediate cause of death, it is immaterial under the (Workmen’s Compensation) Act whether or not the employee be or be not peculiarly subject to have such accident befall him or to suffer therefrom more than another differently situated; the sole question being whether the accident was the immediate cause of the injury.”

And there can be no doubt that such is the law. Thus:

“In Behan vs. Honor Co., 143 La. 348 78 South. 589, L. R. A. 1918F. 862, this court held that:

“The fact that an employee, injured in performing services arising out of and incidental to his employment in the course of his employer’s occupation, was already afflicted with a dormant disease that might some day have produced physical disability is no reason why the employee should not be allowed compensation under the employers’ liability statute, for the injury which, added to the disease, superinduced physical disability.”

See, also, Fox vs. U. S. Chemical, etc, Co., 147 La. 866, 86 South. 811.

Counsel for defendant say in their brief:

“The basis of the defense in this case’ is that the injury did not arise OUT OF the employment.”
“An excellent discussion of this very question will be found in the case of Myers vs. L. R. & N. Co., 140 La. 937, 74 South. 256. On page 941 of the cited case the Supreme Court quotes approvingly the following extracts from the decisions of other courts on statutes exactly like ours.
“It is sufficient to say that an injury is received ‘in the course of the employment’ when it comes while the workman is doing the duty which he is employed to perform. It arises ‘out of’ the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a casual connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural-incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment. * * * but it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed 'apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of -the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.”
“The words, ‘out of,’ point to the origin or cause of the accident; the words, ‘in the course of,’ to the time, place and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words, ‘out of,’ -involves the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment.”

In L. R. A. 1918F, page 903, cases are referred to which are similar in point to the case at bar:

“A fall resulting from a man’s mental condition arises out of the condition, and not out of the employment.” Peterson vs. Industrial Bd. (1917), 281, 111, 326; 117 N. E. 1033.
“So if the fall of an employee was not due to the employment, but was caused by her dwn physical 'or mental condition, or was brought about by her exertions in her own affairs, or by any cause other than the employment, then there can be no recovery.” Hallet’s case (1918), 230 Mass. 326, 119 N. E. 673.
“An employee at work upon a proper scaffold who, solely because of .his predisposition to epilepsy, fell from a scaffold, receiving an injury from which death resulted, did not suffer an injury arising out of the employment, although it arose in the course of it.” Van Gorder vs. Packard Motor Car Co. (1917), 195 Mich. 588; L. R. A. 1917E, 522; 162 N. W. 107.

In the case of Brooker vs. Industrial Accident Commission, reported at page 878, L. R. A. 1918F, the court held that the death of an employee from a fall from a proper scaffold because of an epileptic seizure does not arise out of his employment within the meaning of the Workmen’s Compensation Act.

Their argument involves three propositions : •

1. That to entail liability the accident must result from a risk reasonably incident to the employment.

' We think the accident in this ease did so result. Plaintiff’s duties required him to walk nearly all the time from one clock to another, and there is no pretense that his route did not pass near the stairway down which he fell. In the Myers case are given various instances of accidents held to have arisen out of the employment, amongst which are those of a sailor who fell down a hatchway while washing his clothes, and of an insurance collector who slipped on a stair while on his rounds.

2. That plaintiff’s fall was caused bj his diseased condition.

We do not think the proof shows this. Doctor Walke testifies that his disease made him more likely to. fall than a normal man with a better sense of balance, but any man is liable to stumble and fall when walking; and in the Hicks case the court quotes the following from Carter Co. vs. Reinhardt, 13 Orleans App. 462, stating that there can be no doubt that such is the law, namely:

“Where the accident was the immediate cause of death it is immaterial under the Workmen’s Compensation Act whether or not the employee be or be not peculiarly subject to have such accidents befall him or to suffer therefrom more than another differently situated; the sole question being whether the accident was the immediate cause of the injury.” '

In the Van Gorder and Brooker cases cited by defendant’s counsel, the parties dying from the fall were not walking but sitting or standing on proper scaffolding and were accidentally seized with epileptic fits which the court found in both cases to be the sole cause of the fall.

In the Peterson case the plaintiff had a broken collar bone, but counsel for both parties agreed that the fall which he got at the factory was not sufficient to ac-. count for this injury. The court further found that it was pure conjecture whether the decedent fell from vertigo or weakness from fasting or whether he fell in the shop or at the foot of the stairs or on his way home.

In the Hallett case, a woman carrying two grips fell from the top of a short stairway, but the proof did not -show what caused the fall • or whether she was busy on her own concerns or her master’s, and the court remanded the- case to the industrial board to ascertain these facts.

3. That plaintiff’s, condition of disability was due to his kidney disease and not to the fall.

It is true that the evidence shows that plaintiff did have a severe case of Bright’s disease, but it is held in the Hicks case and others therein cited that where an accident arising out of and in the course of the employment accelerated a disease and both together created disability, compensation is allowable.

We think the evidence here shows that plaintiff’s disease was accelerated by the fall. For a considerable time before the accident and for six hours on the night of the accident he had been performing his strenuous duties without interruption and presumably in a satisfactory manner. Immediately following the fall he remained semi-comatose for about six -weeks an^ although regaining consciousness never became as well as before and. had apparently been declining ever since. Although he returned to work he was not able to continue working for long at a time, and evidently the work of nightwatchman at a factory, requiring walking, was too strenuous for him, although he could, between spells of sickness, perform ’ the duties of watchman which permitted him to sit down all or most of the time. .

It seems to us that the effects of the fall and those of the disease cannot he so separated as to enable anyone to say that here end the one and begin the other. If the medical experts spoke with confidence and were substantially agreed that this could be done, we would, of course, bow to their superior knowledge, but their testimony is not in agreement and most of them do not speak with certainty; and it seems to us more reasonable to conclude that the fall was at least in part responsible for plaintiff’s condition rather than that the disease was solely responsible therefor, to the exclusion of the fall.

We do not think, though, that total disability is proven. Counsel for defendant argue that because the claim is for total disability and there is no prayer for partial disability no. allowance can be made. We think, though, that the greater includes the less and that so technical a view as this would not accord with the liberality which the act enjoins in the matter of evidence and procedure.

Plaintiff was receiving $100.00. per month from defendant and subsequently received ■^O.OO per week from the M. & A; Company, but could not work steadily. While impossible, of course, to fix exactly the difference in earning capacity it is no more so than to fix damages in personal injury cases which, though, the court must do as best it can.

We think a difference of $50.00 per month proper in this case.

There is no proof as to the amount paid or owed by plaintiff for medical attention and nursing, but considering he was unconscious for so long, during which time, of course, he needed both medical atten tion and nursing, we think an allowance of $150 proper.

The demand for loss of plaintiff’s teeth cannot be allowed. They were pulled out hot because of the fall but because of pyorrhea.

Defendant’s counsel do not specially argue the failure to give notice but state in their brief that they wish to emphasize it. It is not shown that defendant had the notice required by Section 12 of the act posted in its plant, nor is it alleged that any prejudice has been suffered by defendant by the want of notice, nor does it claim that it' did not have knowledge of the accident.

See Section 15 of the act.

In view of these considerations, and because plaintiff, on the night of the accident, informed the gate watchman of it and ■ pfillier learned of it very soon after-wards, and Doctor Gorton, who, according to _some of the testimony, was probably defendant’s physician, visited plaintiff while he was still unconscious, we are satisfied that defendant did have knowledge of the accident.

Furthermore, in paragraph four of its answer, defendant avers that the suit is unnecessary because it is ready, able, willing and anxious to pay plaintiff any compensation due him.

For all these reasons we think the bar provided for by Section 11 should not apply.

In plaintiff’s petition he alleges that he employed the attorney in the suit on a contingent fee of one-third of the amount to be recovered, which agreement he asks the court to approve. The defendant alleges that this agreement is virtually an assignment of the claim and, as such, prohibited by Section 22 of the act, which reads as follows:

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

It seems to us that this section rather contemplates that the services of attorneys and physicians may be secured out of the amount collected as compensation, and therefore that such fees are excepted from the ' prohibition ' against assignment. The claimant is protected by the requirement that the fees shall be reasonable and approved by the court. In our opinion one-third, on a contingent basis, is reasonable.

Under Subsection 4 of Section * 8, as amended by Act 43 of 1922, where disability continues- six weeks or longer, then after six weeks have elapsed compensation for the first week shall be allowed.

The heirs of plaintiff have made themselves parties in this court, but the widow has not. We think, though, that the right to compensation is a community asset and not a separate asset of the husband’s estate. We are not advised whether the widow renounced the community or not. Under paragraph 4 of Section 18 of the act, the law provides that the judge shall not be bound by any technical or formal rules of procedure. We think this authority for making the judgment available to the widow should she claim it, though, of course, in her absence we cannot render judgment binding on her.

For convenience sake we shall recast the judgment of the lower court. That judgment is set aside, and it is now decreed that defendant United States Sheet & Window Glass Company is liable for compensation to the legal representatives of P. H. Connell in the sum of one hundred and fifty dollars with 5% per annum interest from this date and the future sum of seven dollars and fifty cents per week, the first payment being due February 16, 1923, and continuing until the time of his death, with 5% per annum interest on each payment from its maturity. It is further decreed that said payments be made, two-thirds of one-hal-f to the widow and two-thirds of one-half to Alfred H. Connell, Dool C. Connell; Mrs. Myrtle Connell Dixon, widow of B. W. Dixon, deceased; Dewey M. Connell; Mrs. Nora Connell O’Neal, wife of E. P. O’Neal; Mrs. Tollie Connell Wilson, wife of M. A. Wilson, and Charles W. Connell, the heirs of said P. H. Connell, unless said heirs procure and tender to defendant a disclaimer or other binding form of acquittance from the widow, in which event two-thirds of the whole shall be paid to them. It is further decreed that one-third of the whole be paid to Julius T. Long under his fee contract with plaintiff, which is hereby approved.

It is further decreed that defendant pay the costs of both courts.

ODOM, J.,

dissenting. I do not concur in the finding that plaintiff’s disease was accelerated by the fall.

ON APPLICATION FOR REHEARING

REYNOLDS, J.

The defendant insists that it should be granted a rehearing on the ground that plaintiff deliberately swore to a falsehood in' stating that his teeth were knocked out by his fall and that plaintiff deliberately tried to perpetrate a .fraud on the defendant and on the court by lying with reference to his teeth.

We cannot concur in defendant’s estimate of plaintiff’s testimony that his teeth were knocked out.

Plaintiff testified (page 7):

“Q. Lost your teeth, too, since you got hurt?
“A. Yes, sir.”

(Page 21):

“Q. How long after the accident was it before you had your teeth pulled?
“A. I think about three or four weeks.
“Q. Had them all pulled?
“A. Yes, sir.”
“Q. Were your- teeth broken off?
“A. No, sir, they were knocked loose, some of them.
“Q. How many?
“A. Three or four.
“Q. What was the matter with the rest?
“A. Well, I had the pyorrhea.”

(Page 22):

“Q. That was the reason the rest were pulled? Did the pyorrhea make those other ones loose?-
“A. I guess so, I don’t know.
“Q. Well, that is what pyorrhea does, doesn’t it, makes them loose?
“A. I guess so.
“Q. Just in what way did this acciden cause your teeth to have to be pulled?
“A. I fell down the stairway and struck on the side .of my face at the time.
“Q. Well, if only three or four of them were loose and none of them were broken off and if you had the pyorrhea, what did the fall have to do with pulling your teeth?
“A. He said they would have to be pulled.

(Page 25).

“Q. Your teeth were not knocked out?
“A. No, but -they were knocked loose.
“Q. You say your teeth were pulled out three or four weeks after the fall?
“A. Yes, sir.
“Q. You stated you were unconscious for about six weeks?
“A. Yes, sir.

This evidence, as a whole, does not impress us as being perjury.

In fact, the more we study evidence the more we are impressed with the view of Edgar Guest that:

“When, you get to - know a fellow, Know his joys and know his cares,
When you come to understand him, And the burden that he bears,
When you learn the fight he’s making And the trouble in his way, .
Then you find that he is different Than you thought him yesterday.”

The second, third and fourth grounds set up in defendant’s motion for rehearing are. fully covered in our original petition herein.

Defendant urges, as a fifth ground, that the court erred in allowing plaintiff judgment for $150.00 for medical attendance and nursing, and quotes paragraph 5 of Section 8 of the compensation act:

“The employer shall in every case coming under this act furnish the employee reasonable medical, surgical and hospital services and medicines not to exceed two hundred and fifty dolars in value, unless the employee refuses to' allow them to be furnished by the employer; and in every case of death the employer shall pay or cause to be paid the reasonable expense of the burial of the employee, not to exceed one hundred dollars, and the reasonable contingent expenses in connection therewith, not to exceed fifty dollars.”

Section 6 of the act provides:

“Any .voluntary payments made by the employer or his insurer to the insured employee, during the period of his disability, or to his ‘dependents, which, by the terms of this act, were not due and payable when paid, may, subject to the approval of the court, be deducted from the amount to be paid as compensation.”

Under this last provision, if the defendant company had made any voluntary payments or had in any way furnished medicine, doctors or nurses, it could have received credit for the same by furnishing proof of the service and of the value of the same.

But there is no evidence in the record showing the value of any service rendered or any claim on the part of defendant for such services.

Defendant urges, as a further ground for rehearing, that the court erred in holding that the assignment of one-third of planitiff’s cause of action and claim for compensation to his attorney was legal.

We recognize the right of plaintiff’s attorney, under his. Contract of employment, as provided for by Act 124 of 1906, giving a first privilege to attorneys for the amount of their professional fees on all judgments obtained by them and on the property recovered by such judgments; and by which it was made lawful for an attorney by written contract, signed by the client, to acquire as his fee an interest in the subject matter of the suit binding on the opposite party after notice.

This was done for the reason that the Workmen’s Compensation Act of Louisiana requires that the fees of attorneys and physicians be reasonable' and that they shall be approved by the court.

Defendant further objects to the decree herein rendered on the ground that it would not be protected in the event it paid the judgment.

Mrs. Mattie Porter Connell has voluntarily made herself a party to the judgment and decree herein rendered and we have entered an order recognizing .her as one of the parties to the suit.

In her application to become a party, Mrs. Mattie Porter Connell, widow of the plaintiff, Patrick H. Connell, asks that her rights in the suit be reserved.

The rights ' of Mrs. Mattie Porter Connell, insofar as they are- adjudicated in this decision and decree, are fully and finally settled; but insofar as any rights that she may have that are not claimed in this suit, they are fully reserved as provided by law.

For the above reasons a rehearing is refused.


text:
    No. 2306
    Second Circuit Appeal
    MRS. MATTIE PORTER CONNELL v UNITED STATES SHEET AND WINDOW GLASS COMPANY
    (June 27, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 154, 160 (g).
    In the Workmen’s Compensation Act No. 20 of 1914, there is no conflict between .Section 31 which is a statute of prescription barring rights of action created by other sections of the law and Section 8, Subsection 2 which is merely . one of the rights of action created by the act. If the injured employee dies more than a year after the accident, Section ,31 has no application because the right of action never existed.
    2. Louisiana Digest — Master and Servant— Par. 154, 160 (i), 160 (g); Pleading-Par.. 62.
    ■An exception no cause of action is properly sustained against petition in Which the widow of an employee who had been injured suing under Section 8, Subsection 2 of the Workmen’s Compensation Act No. 20 of 1914 alleges that her husband died more than one year after the accident.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit by a widow to recover compensation under the Workmen’s Compensation Act No. 20 of 1914, for the death of her husband, who had been injured. Defendant filed an exception no cause of action which was sustained. Plaintiff appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, attorneys for defendant, appellee.
   ODOM, J.

The plaintiff is the widow of Patrick H. Connell.

- She alleges that her deceased husband while employed by and working for the defendant company fell and injured himself on February 10, 1923, and that as a result of such injury he died on May 19, 1924.

She asked for compensation under Section S of Paragraph 2 of the Workmen’s Compensation Act.

An exception of no cause and no right of action was tendered by defendant, grounded on the proposition that plaintiff’s petition shows that her husband died more than one year after the accident.

This exception was sustained by the court below and plaintiff’s suit dismissed. She has appealed.

OPINION

Our learned brother of the District Court sustained the exception of no cause and no right of action and we find in the record his opinion which we adopt and quote in full as follows:

“This is a suit under the Compensation Law, brought by the widow of injured employee to recover for the death of her husband, who it is alleged w’as injured during the course of his employment. The accident causing the death happened more than a year prior to the death. Less than a year elapsed from the time of death to the bringing of this suit.
“The defendant has filed an exception of no cause of action which means, that in a case where death occurs more than a year after the accident no right of action is granted to the widow for such death.
“The case involves an interpretation of Paragraph 2 of Section 8 on the Compensation Law reading:
“ ‘That for injury causing . death within one year after the accident weekly compensation shall be paid under this Act for a period of three hundred weeks to the following persons:’
“And Section 31 reading
“ ‘That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the injury or death, the parties shall have agreed upon the payments to be made under this Act, or unless within one year after the injury proceedings have been begun as provided in Sections 17 and 18 of this Act. Where, however, such payments have been made in any case, such limitations shall not take effect until the expiration of one year from the time of making the last payment.’
“It is easily seen that the two quoted clauses have entirely different and distinct purposes in view. The last clause is purely a prescriptive period for the bringing of the suit or making the settlement. It is not the granting of a right of action under the law, but is a prescriptive period on the right of action granted in other sections. Under this section -prescription begins to run in case of injury, not from the date of accident but from the date the injury becomes manifest.
“Guderian vs. Sterling Sugar & Ry. Co., 151 La. 59, 91 South. 546.
“In the first' quoted section the law grants a right of action to the widow only in case the death results from the accident within one year. If death results within one year after the accident, then a right of action is created in favor of the widow, and under Section 31 this right of action, thus created under Paragraph 2 of Section 8 survives for a period of one year from the date of death, after which it becomes barred. If death results from the accident more than one year after the date of the accident, then no right of action is ever created under the law, and the widow has none.
“Under this section the injury is to the widow, and not to the deceased. It is the death that created the right of action in the widow, and not the accident itself, although the death must be caused by the accident. It is ■ purely a statutory right of action, and a conditional one at that, and the condition is that the death must occur within one year from the date of the accident. Unless that condition is fulfilled within the terms of the statute no right of action exists.
“We do not think there is any conflict at all between the two quoted clauses. Section 31 is a statute of prescription barring rights of action created by other sections of the law". Paragraph 2 of Section 8 is merely one of the rights of action created by the Act, and when it comes into being-it likewise becomes barred under the terms of Section 31. If death occurs within one year from the date of the accident, then this right of -action, thus created, becomes barred within one year from the date of death. If it never comes into existence by reason of death occurring more than one year from the date of the accident, then Section 31 has no application, for there is then no right of action to become barred.”

See Monvoisin vs. Plant, 147 La. 464, 85 South. 206.

The judgment appealed from is correct and is therefore affirmed.


author: CLAIBORNE, J.

text:
    No. 9612.
    Orleans Appeal.
    MRS. F. F. WORINGEN, Appellant, v. WILLIAM G. ZETZMANN.
    (April 13, 1925, Opinion and Decree.)
    (April 13, 1925, Judge Westerfield Dissents.)
    (May 11, 1925, Rehearing Refused. Judge Westerfield dissents.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Municipalities—Par. 224.
    A pedestrian traveling at night on a narrow road in the outskirts of the City with thick bushes on either side upon which numerous automobiles go and come and few pedestrians, occupies a position of danger which calls for great care to avoid injury.
    2. Louisiana Digest — Automobiles—Par. 4.
    If under these conditions he is injured by a passing automobile he cannot recover unless he shows that the driver was negligent or could have avoided the accident.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    Plaintiff’s minor daughter, Louise Woringer, was knocked down and injured by an automobile operated by the defendant. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Jas. E. Shillen and W. A. McClendon, Jr., attorneys for plaintiff and appellant.
    Gordon Boswell and R. L. A. Indest, attorneys for defendant and appellee.
   CLAIBORNE, J.

Plaintiff’s minor daughter, Louise Woringer, was knocked down and injured by an automobile operated by the defendant. Hence this suit.

The plaintiff alleges that at about half past nine of the night of June 29th, 1923, while walking on the' Downman Road in the direction of Little Woods, between Sea-brook and Citrus near the City of New Orleans, her minor daughter, Louise Woringen, was struck from the rear by a five-passenger automobile operated by the defendant, Wm. G. Zetzman, running at an excessive speed; that her daughter and the automobile were going in the same direction towards Little Woods; that the defendant could have avoided the accident by proper caution and that the accident- was-due entirely to his fault; that her child suffered contusions of both knees, her feet were- sprained, and her arms, head, face and chest were bruised, necessitating treatment by a physician; that she was confined to he? home for a week suffering excruciating pain; that her wearing apparel and personal effects, including dress, shoes, hose, and jewelry, were damaged beyond repair., which -is estimated as follows:

Rain and suffering of child______________i.$2,000.'00

Medical expense------------------------------------ 40.00

Loss of wearing apparel______________________ 150.00

$2,190.00

The defendant denied each allegation of plaintiff’s petition, and assuming the character of plaintiff in reconvention averred: that on the date, place and hour alleged by plaintiff, he was driving his car at 25 miles per hour; that his head lights were burning and that he was driving at about 100 feet behind another -car proceeding in the same direction when petitioner’s daughter and a young man stepped 'from the brushes abutting said road on defendant’s right-hand side into the road directly in the path of defendant’s auto, in a sudden and unexpected manner, about 10 or 15 feet in front of defendant’s car and made no effort to move; that defendant sounded his horn, applied his brakes and veered sharply to the left,, but despite his efforts to avoid the accident, the right front fender of his car struck the couple, and his car turned over on the left hand side- of the road, sustaining damages to the extent of $274, which he claims in reconvention against the plaintiff.

There was judgment for defendant and plaintiff has appealed.

The defendant has not appealed from the judgment against him dismissing his re-conventional demand, nor has he answered the appeal praying for an amendment of the judgment. Therefore the judgment as to him cannot be 'amended by us.

The facts of the case are as follows:

The plaintiff, a girl of 19 years of age, and her male escort, in company with a female companion and her escort, at the ■hour of half past nine in the month of June on a dark night boarded -an automobile and started from their home in the City -of New Orleans to go to Little Woods upon Lake Pontchartrain, by way of the Down-man Road between Gentilly Road and the Lake.

The road is paved with shells and is 18 or 20 feet wide, and is bounded upon either side by thick bushes, as expressed by one of the witnesses: “When .1 pass there in the summer time the bushes even slap me in the face.”

The Downman Road is a two-way road and is much frequented by automobile? going each way. Although one witness says that he has sometimes seen pedestrians walking upon the road at night, the defendant testifies that he has never seen any at that time of the day, although he has frequently traveled upon the road.

After the quartette had gone some distance upon the road, they stopped the automobile. One couple remained within it, and the other couple, plaintiff and her escort, got out of it and walked up the road some distance. They .testified that their purpose was “looking for watermelons”. Although this purpose may have been paramount, it was not exclusive, for plaintiff’s escort testified that he tried to kiss her but that he could not. While they were thus engaged the defendant entered upon -the scene.

The defendant was one of a party of ten, likewise bent upon going to Little Woods: They had divided into two automobiles, five in each. Early in the action, one of their automobiles broke down. The five occupants of that automobile then abandoned it and took seats in -the other car, four upon the front seat, seated almost side by side, and six -upon the back seat, three seated partly upon the lap of the other three. This last car was a Big Six Studebaker. It then proceeded on its way, following 40 or 60 feet in the rear of another car driven by one Bernhardt. Both were running 25 or 30 miles an hour, and both had their head lights burning.

The Bernhardt car overtook the plaintiff and her escort, who were walking on their right on the edge of the road and near the brush. The car passed them with impunity, but defendants car, coming immediately in the rear, struck the plaintiff and her escort and injured them both.

The question arises by whose fault did the accident happen? We have come to the conclusion that the fault was with' the plaintiff.

• She was traveling on a dark night upon a road over which numerous cars ran in both directions and upon which but few, if any, pedestrians walked at night. The road was narrow and hedged in upon each side by thick bushes. In order to avoid being run over, the pedestrians avoided the center of the road and kept close to the edge as near the bushes as it was possible. The shadow of the bushes increased the difficulty of seeing them. With the automobiles following each- other in close procession their position became dangerous, and demanded extraordinary vigilance. The plaintiff’s escort testified that they had been upon their walk upon the road before the accident about five minutes; that within that time a dozen automobiles passed by. He says he was aware of the danger. His companion must also have been aware of the danger.- More timid by reason of her sex she must have been more conscious of the danger than her escort. She says she .saw the light of the Bernhardt automobile as it passed by. She must have receded from the road as it went by. As she did so the headlights of defendant’s automobile came immediately in the rear, and illumir nated the scene and it was impossible for her not -to have seen them.

The law holds her to'having seen -what she could and should have seen. Kelly vs. Schmidt & Zeigler, 142 La. 91, 76 South. 250.

Walking on that road under those conditions and upon the right side of the road which she knew would be the side upon which automobiles were required to- travel, particularly upon such a narrow road, to avoid collisions with other cars coming from an opposite direction, and aware that those automobiles would overtake her from the rear, and that it was difficult to discern her presence owing to the darkness and the density of the bushes, she should have looked behind for oncoming' automobiles and should have avoided them, as she easily could have done had she made any effort in that direction.

The plaintiff quotes a number of cases, saying that a pedestrian upon a highway is not required to look back.

That may be true when the sun shines brightly and the driver of the vehicle is presumed to be able to see the pedestrian in front of him, but such were not the conditions of this case.

The plaintiff contends that under the doctrine of the last clear chance, even if she was negligent, the defendant could have avoided the accident, had he not been guilty in three particulars, viz.:

1st. That the defendant’s car was overloaded and there were so many persons seated upon the front seat that it interfered with his driving. There is no evidence in support of that allegation, and defendant testifies that the number of persons in his car did not affect his driving.

2nd, That the defendant was driving at an excessive speed. The testimony is that he was driving between-25 and-30 miles behind another car. -She relies upon Sec. 19 of Act 120 of 1921, p. 286. That Act applies only in the absence of municipal regulations upon the subject. We must take judicial cognizance of the fact that the City has adopted a traffic ordinance) and that ordinance is not in evidence to show that 30 miles upon the Downman road is excessive. The Act, besides, makes a speed in excess of 15 miles in a city only prima facie evidence of excess. It therefore all depends in what part of the city the 15 miles are driven, whether on Canal Street or on the Downman Road.

3rd. That the speed was too great owing to the dust on the road. There is no evidence that there was such dust between the defendant and the plaintiff in the sense that the dust was the cause of defendant not seeing the plaintiff.' The answer is that the -defendant did not see the plaintiff because she was concealed by the bushes and suddenly appeared to defendant, who had no time to avoid .the accident.

We have come to the conclusion that the negligence and want of care of the plaintiff brought her injuries upon herself and that it was not in the power of the defendant to have avoided the accident.

We feel much comfort in this conclusion in the case of Willis vs. Harley, 144 N. Y. Supp. 154, 159, App. Div. 94, where similar questions were discussed and a like conclusion reached. Approved by the following authorities: Elliott on Roads (3rd Ed.), Sec. 1123; Berry (4th Ed.), Sec. 327; Huddy (7th Ed.), See. 551; Babbitt (3rd Ed.), Sec. 1720. See also McClendon vs. Zetzman, No. 155,223 Civil District Court.

It is therefore ordered that the judgment herein be affirmed.


text:
    No. 9728.
    Orleans Appeal.
    CECILE THERIOT, WIDOW GEORGE F. BURCH, Appellant, v. HEIRS OF EVELINA DUGAS, WIFE OF LUCIEN THERIOT.
    (April 13, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1.Louisiana Digest — Taxation—Par. 322..
    A redemption of a tax sale by a co-proprietor is not translative of title.
    2. Louisiana Digest — Mortgages—Par. 66, 78, 116, 201.
    When a mortgagee acquires title to the property mortgaged which is subsequently set aside the mortgage revives.
    3. Louisiana Digest — Mortgages—Par. 66, 93, 116, 201.
    The purchase by the mortgage creditor releases the mortgage, but does not destroy the debt, or; affect the right of the creditor to enforce the payment of it; when the creditor allows the debt to prescribe he can no longer enforce the mortgage.
    4. Louisiana Digest — Mortgages—Par. 123
    A’ mortgage ceases to exist when the debt it was intended to secure becomes prescribed.
    5. Louisiana Digest — Prescription—Par. 56 218, 219; Pleading, Par. 63.
    Courts cannot supply the plea of prescription.
    (Civil Code, Art. 3464. Editor’s note.)
    6. Louisiana Digest — Prescription—Par. 70; Pleading — Par. 24, 34.
    When a suit is filed against several joint obligors, it cannot be dismissed on the plea of prescription urged by one only, but only as to him.
    Appeal from 27th Judicial District Court for the Parish of St. James, Hon. Lucien A. LeBlanc, Judge.
    Mrs. Lucie Burch, one of the defendants herein, has enjoined an order of seizure and sale issued herein, against her and others. Injunction was made perpetual.
    Judgment amended and affirmed.
    Marcus & Corkern, attorneys for plaintiff and appellee.
    Benj. W. Kernan, attorneys for defendant and appellant.
   CLAIBORNE, J.

Mrs. Lucie Burch, one of the defendants herein, has enjoined an order of seizure and sale issued herein, against her and others.

The petition of Cecile Theriot, Widow Burch, alleges that by an Act passed before the Clerk of the Parish of St. James on October 12, 1894, Evelina Dugas, widow Lucien. Theriot, subscribed a promissory note also dated October 5, 1894, and , payable at one year after date for the sum ©f $512.00 and secured the payment of said note by mortgage upon a certain tract of land situated in the Parish of 'St. James; that said note was acquired by the plaintiff immediately after its execution and that she has held and owned the same ever since, and that it remains unpaid; that since the making of said note the maker-thereof, Widow Lucien Theriot, died in De'cember, 1897; that she left the property above described and seven children, of whom plaintiff, Cecile Theriot Burch, is one. She prayed for executory process and that the other children and heirs of Widow Lucien Theriot and her co-heirs be notified thereof.

The writ issued as prayed for.

Lucie Theriot, widow Antoine Burch, one of -the children and heirs of Widow Lucien Theriot, and co-proprietor for one-fourteenth, made defendant herein, enjoined the writ of executory process for the whole on the allegation “that the note sued on dated Octobr 5, 1894, and due October, 1895, was prescribed upon its face, being more than five years old from maturity, and that under S. 8 of Article 739 of the Code of Practice, she was enttled to an injunction • to arrest the sale of the property.

By motion, the plaintiff in injunction, Lucie Theriot Burch, was summoned to establish her allegation of prescription.

After trial, the injunction was made perpetual.

The plaintiff admits that the note upon its face appears prescribed; but pleads that the prescription has been suspended by the following facts;

In May, 1897, the property mortgaged was sold for taxes and purchased by L. J. Peyret. By Act dated January 10, 1898, Peyret sold the same to the plaintiff herein Cecile Theriot Burch. By judgment of the District Court rendered in February, 1922, affirmed by this Court in January, 1923, it was decided -that the sale by Peyret to the plaintiff herein was in effect a redemption of the property and not a sale, and that the plaintiff acquired no title to the property, and that her purchase or redemption was merely a payment of the taxes for the benefit of all the co-proprietors. No. 8614 Ct. App.

The contention of the plaintiff is that -the tax redemption sale suspended the prescription from the date of said sale up to the date of the judgment declaring that it was not translative of title, that is, up to January, 1923, and that the suit for executory process herein was filed on March 7, 1923.

She bases her contention upon the decisions of the Supreme Court that when a mortgagee acquires title to the property mortgaged which is subsequently set aside the mortgage revives. Millaudon vs. Allard, 2 La. 551; Ledoux vs. Buhler, 21 La. Ann. 130; Police Jury vs. Duralde, 22 La. Ann. 107, 109; Citizens Bank vs. Knapp, 22 La. Ann. 117; John Chaffe & Bro. vs. Morgan, 30 La. Ann. 1307; New Orleans Insurance Assn. vs. LaBranche, 31 La. Ann. 839; Spencer vs. Goodman & Bradfield, 33 La. Ann. 898; Citizens Bank vs. Hyams, 42 La. Ann. 729, 7 South. 700; Pugh vs. Sample, 123 La. 791, 49 South. 526; St. Charles Street R. Co. vs. Fairex, 46 La. Ann. 1030, 15 South. 421.

But in all those cases the judicial sales were translative of title by their nature and the purchasers could not have a mortgage upon their own property. -But in the case under consideration the redemption sale to the plaintiff herein conveyed no title whatever; it was merely a payment of the tax.

But the case of Dawson vs. Thorpe, 39 La. Ann. 366, 1 South. 686, puts the whole question beyond the pale of discussion. In that case the Court mentions two of the above decisions, New Orleans Insurance Assn. vs. LaBranche, 31 A. 839, and Spencer vs. Goodman & Bradfield, 33 A. 898, and concludes :

“The purchase by the mortgage creditor, while extinguishing the mortgage, did not destroy the debt or affect the creditor’s right and power to enforce payment of it and to prevent its prescription. Having suffered the debt to - become extinguished, his mortgage is necessarily destroyed, and he has no more right to enforce it when the debt has been extinguished by prescription than if it had been extinguished by payment.”

The distinction between the interruption of prescription of the note or obligation and the mortgage is drawn in that case, and attention is called to the fact that in New - Orleans Insurance Assn. vs. LaBranche, 31 A. 839, the court passed upon the prescription of the mortgage and not of the obligation. Thé rights, of the plaintiff as holder of the note were entirely separate and apart from her rights to the mortgage securing the payment of the note. While the redemption tax sale, if it had been translative of title, might have released the property from the mortgage, it could not affect the note in any other manner. After the death of Widow Theriot there was nothing to prevent the plaintiff from suing her co-heirs upon the note.

The learned counsel for plaintiff admits that a mortgage ceases to exist when the debt which it was intended to secure becomes prescribed. C. C. 3285.

Auguste vs. Renard, 3 R. 389; Shields vs. Brundige, 4 La. 326; Lanusse vs. Minturn, 11 La. 256; Robillard vs. Poydras, 11 La. 280; Le Beau vs. Glaze, 8 La. 474; Amado vs. Breda, 16 La. 257; Weil vs. Jacobs’ Estate, 111 La. 357, 35 South. 599; Pons vs. Yazoo & M. V. R. R. Co., 122 La. 159, 47 South. 449.

We find ■ no support to the proposition that because the plaintiff took possession of the property mortgaged, that it operated in her hands as a pledge which constituted a constant acknowledgment of her note.

The truth is that up to the time of filing the suit she asserted possession by right of ownership for herself and not as. a pledgee or as trustee for others.

But the judgment of the District Court exceeds the right of the plaintiff in injunction. She is owner only of one one-fourteenth of the property seized. She can only ask for an injunction concerning her interest. She cannot vicariously represent her co-heirs. Her only defense to the note is prescription. C. C. 3463. “Courts cannot supply the plea of prescription.” C. C. 3464, Gaines vs. Succession of Del Campo, 30 La. Ann. 246; Martin vs. Kirkpatrick, 30 La. Ann. 1215; Williamson vs. Richardson, 30 La. Ann. 1165; Schorr vs. Woodlief, 23 La. Ann. 473; Dunbar vs. Nichols, 10 M. 184; 1 N. S. 317; Norton vs. Doherty, Citizens Bank, 21 La. Ann. 395; State of Louisiana vs. Easton Hoffpauer, 21 La. Ann. 609; Ashbey vs. Ashbey, 41 La. Ann. 102, 5 South. 539; State vs. Baten, 48 La. Ann. 1538, 21 South. 119; Succession of Haley, 50 La. Ann. 840, 24 South. 285. The plea must be confined to the person making it. Durnford vs. Clark’s Estate, 3 La. 199, 205; Waldron vs. Turpin, 15 La. 551.

It is therefore ordered that the judgment herein be amended by providing that the injunction prayed for by Lucie Theriot, Widow Antoine Burch, in so far as her share or one-fourteenth of the property concerned, be made perpetual, but that for the share of the other heirs, or five-fourteenths, it be rejected; the costs of the District Court to be paid by the plaintiff Cecile Theriot Burch, and the costs of appeal to be paid by Lucie Theriot, Widow Antoine Burch.