author: MeGREGOR, j.

text:
    No. 3836
    Second Circuit
    MYERS v. GULF PUBLIC SERVICE CORP.
    (January 27, 1931. Opinion and Decree.)

      S. R. Holstein, of Jena, J. W. Cassidy, of Brookhaven, Miss., and Weber Wilson, of Laurel, Miss., attorneys for plaintiff, appellee.
    Theus, Grisham & Davis,- of Monroe, attorneys for defendant, appellant.
   MeGREGOR, j.

C.B. Myers and his wife, Mrs. Lola Myers, together with their children, Gordon, Hubert, Gladys and Arliue Myers, filed suit against the defendant on June 7, 1929, for the death of Lawrence Myers on January 22, 1929, by electrocution in the ice plant of the defendant in the town of Jena, LaSalle parish, state of Louisiana. The petition alleges that the decedent, Lawrence Myers, was the son of the plaintiffs, C. B. Myers and his wife, Mrs. Lola Myers, and the brother of the other plaintiffs.

It is alleged that, upon the invitation of the defendant through its agents and employees, the senior class of the Jena High School, of which the decedent, Lawrence Myers, was a member, on the 22nd day of January, 1929, visited the ice plant of the defendant for the purpose of studying the processes used in the manufacture of artificial ice.

As' the immediate cause of the death of the decedent, it is alleged that the children of the said senior class of the Jena High School, including decedent, were led and directed across and over a large tank or a collection of several small tanks filled with water, out of which blocks of ice were manufactured. That whenever the tanks of water had been frozen into ice the blocks of ice were raised or lifted by a mechanical device overhead and conveyed to other parts of the premises. This device was operated by electricity and was conveyed along a copper wire overhead about six feet and three inches, exposed and charged with electricity. That in walking across the top of these water tanks which, it is alleged, were wet and slippery, the decedent fell, and in trying to save himself from falling, reached up and caught the live copper wire and was electrocuted.

It is further alleged that there was no sort of contributory negligence cn thei part of. the decedent, but that his death was due to the “gross carelessness and; negligence” of the defendant. That the proximate cause of the said death was the failure of the defendant, its agents and employees, to warn the decedent of the danger from the exposed or live wire. It is further alleged that the current of electricity should have been turned off while the children were in the room, particularly since the plant was not in operation during the visit of the children.

Plaintiffs sued for damages .in the sum of $50,000, based on the “anguish and mental suffering caused them by the loss of” decedent. A trial by jury was asked for and granted.

On June 24, 1929, an. exception of: (1) misjoinder, (2) vagueness, and (3) no cause or right of action, was filed. This exception was taken up and tried and sustained as to all parties except Mr. and Mrs. C. B. Myers, and as to them it was overruled.

On December 23, 1929, C. B. Myers, one of the plaintiffs left in the suit, appeared through counsel and dismissed the suit insofar as his interests were concerned.

On February 24, 1930, the defendant filed another exception setting up:

“1. That C. B. Meyers, father of the deceased Lawrence Meyers, and husband of the plaintiff, Mrs. Lola Myers or Mrs. C. B. Meyers, having voluntarily dismissed and abandoned the suit and as the damages, if any could be recovered, would belong to the community of acquets and gains existing between plaintiff and her said husband and as her husband is head and master of said community .and alone can maintain this action, the petition of the wife discloses neither right nor cause of action.
“2. Plaintiff’s petition being too vague 'and indefinite to admit of proof or to advise the defendant of her demands, discloses no cause of action.
“3. The statute of limitation having already run and all rights of action growing out of or connected with the death of the said Lawrence Meyers being barred by the prescription of one year, from the 22nd day of January, 1929, no testimony could be received or amendment allowed so as to make new parties or set up new c'auses of action and defendant specially pleads the prescription of one year in bar of all demands.”

This exception was immediately tried and overruled.

On March 17 and 18, 1930, the case was, tried by jury and verdict rendered. On March 18, 1930, after about one-third of the testimony had been taken, a supplement or amendment to the plaintiff's petition was filed and allowed. This amendment or supplement alleged that the decedent left no widow or children. The amendment was allowed over the protest of counsel for defendant.

The jury’s verdict was against the defendant and assessed the damages at $1000 and judgment in favor of the plaintiff, Mrs. C. B. Myers, for this amount and the costs of the suit was accordingly signed on March 19, 1930. The defendant has’ perfected its suspensive appeal and the plaintiff has answered the appeal and asks that the judgment be amended by raising the amount of damages to the sum of $10,000.

EXCEPTIONS FILED BY DEFENDANT

The exception filed by the defendant on June 24, 1929, was properly sustained as to Gordon, Hubert, Gladys, and Arline Myers, and should have been sustained as to Mr. and Mrs. C. B. Myers, the father and mother of the decedent for the reason that the petition did not allege that the decedent left no widow or children. But since the exception was overruled as to Mr. and Mrs. Myers, this defect was subsequently remedied on March 18, 1930, by the filing and allowance of the amendment contain-' ing the necessary allegations, even though the date of the filing of the said amendment was more than one year after the date of the death of the decedent. The allowing of this amendment was wholly within the discretion of the trial judge. To sustain their exception of no right or cause of action, counsel for defendant cite us to Blackburn v. La. Railway & Navigation Co., 128 La. 319, 327, 54 So. 865. This case sustains their position, but it also sustains the trial judge in allowing the plaintiff to amend his petition so as to include the necessary allegation that'decedent left no widow or children.

Register et ux v. Harrell, 131 La. 983, 60 So. 638, holds the same thing and upholds the trial judge in the exercise of his discretion in REFUSING to allow the plaintiff to amend the petition. In Stearns v. Love Drilling Co., Inc., 5 La. App. 174, it was held that the plaintiff must allege the fact that no widow or minor children survive, but plaintiff was allowed to amend the petition accordingly.

We think it will be conceded that, pending the consideration of an exception of no cause or right of action by a trial judge, the plaintiff may always be allowed to file the necessary amendment to the petition to meet the objection of the ex-ceptor, provided the trial judge exercised his discretion in so allowing the amendment. And by the same course of reason we hold that if the trial judge has WRONGFULLY overruled an exception of no cause or right of action, the plaintiff may be allowed in the discretion of the trial judge to amend his petition to meet the objection of the exceptor, and this may even be done after the prescriptive period, provided, however, that in this event the amendment does not change the issue and does not allege a NEW cause of action.

The exception of no cause or right of action filed on February 24, 1930, should have been sustained as to. Mrs. C. B. Myers, the only plaintiff left in the case, for the reason< that up to that time the petition contained no allegation that the decedent left no widow or minor children, but since it was overruled, the filing of the amendment to the petition setting forth the necessary allegations remedied the defect and caused the petition as amended to set forth a complete right and cause of action.

In this exception of February 24, 1980, counsel for defendant contend" that, since plaintiff C. B. Myers had dismissed and abandoned the suit for himself, the damages, if any could be recovered, would belong to the community of acquets and gains existing between plaintiff and her said husband, that plaintiff, mother of decedent, had no right to prosecute this suit and stand in judgment. We do not agree with this contention. Article 2315 of the Revised Civil Code gives this right of action to “the surviving father and mother or either of them.” (Boldface type ours.) Under the plain wording of the Code either C. B. Myers or his wife could have brought this suit alone in the first instance. This being true, after the two of them had brought it jointly the dimissal of his interest by the father does not prevent the mother remaining and prosecuting her suit in her own name and in her own right. In Robertson et ux v. Town of Jennings, 128 La. 795, p. 803, 55 So. 375-378, Justice Monroe said:

“Beyond that they each had the right of action which they are asserting, and which is conferred upon them directly by the statute, and the husband had, moreover, the right of action which as master of the community he possessed before the statute in question (or Act No. 71, of 1884, which, preceded it) was adopted, for the recovery of the expense to which the community was subjected by reason of the injury inflicted upon, and death of, the child.”

And, to make the opinion stronger and to leave no doubt as to the right of the mother to sue for the death of her child the court in writing its own syllabus of this case, in paragraph 3 said:

“The right of action conferred upon a married woman by Act No. 68 of 1902, p. 95, for the recovery of damages resulting from personal injuries, includes the right to recover for injuries to feelings as well as physical injuries. Hence a married woman, whose child loses its life through the fault of another, may recover by herself alone for mental suffering caused by such death, and the amount which she may recover becomes her separate property.”

In the case of Vincent et ux v. Morgan’s La. & Tex. R. R. & S. S. Co., 140 La. 1027, 74 So. 541, the matter of the right of the surviving mother to obtain judgment for damages in addition to what the father may obtain in the same suit is thoroughly discussed. In the closing paragraph of this case on page 1051 of 140 La., 74 So. 514, 549, Chief Justice Monroe said:

“In the case of Parker v. Crowell & Spencer Lumber Co., 115 La. 463, 39 South. 445, a father was allowed $5,000 for the loss of a minor son. In Johnson v. Industrial Lumber Co., 131 La. 897, 60 South. 608, an award of $2,326.50 in favor of a mother for the death of a minor son, of whom she had been given the custody by a judgment of separation a mensa et thoro, was increased by this court to $5000.
“In this case the father and mother have united in the suit, and the judgment of $10,000 in their favor follows the precedents established in the two cases thus mentioned.”

This clearly indicates to our minds that the father and mother each had a right of action for the death of their son. When that case was tried the mother could not have prosecuted her suit separately for her interest, but under Act No. 283 of 1928 the wife has full power to prosecute any aBd all suits that relate to her rights, of action.

Counsel for defendant contend that any damages if recovered in this case would fall into the community and that therefore the husband and father must prosecute the suit in any event. They cite us to and rely upon article 2402 of the Revised Civil Code. This does not bear up their contention. It must be remembered that Civil Code art. 2402 as it now reads was passed in 1902 and that C. C. art. 2315 as it now reads was passed in 1908 and in 1918. This being true, we take it that this article is authority for holding that the direct action of the surviving mother for the death of her son who died without leaving a widow or children is her separate property and, under Act No. 283 of 1928, she has a right to prosecute this action without the intervention or assistance of her husband. This article 2315 of the Revised Civil Code primarily says that the father and mother or either of them may recover damages sustained by them by the death cf the child. The irresistible conclusion which must be reached, therefore, is that the mother has a separate right of action if she chooses to exercise it and under Act No. 283 of 1928, she has a perfect right to do so without the intervention or assistance of her husband.

Counsel for defendant contend in their brief that this suit was brought “under Article 2315 of the Civil Code as amended by Act 159 of 1918, which provides that the right of action ‘shall survive in case of death in favor of the children or surviving spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them.’ ” In this they are in error, for we hold just as was held in the case of Robertson v. Town of Jennings, 128 La. on page 803, 55 So. 375-378:

"In the instant case the right of action of plaintiff’s child survived in their favor as a common inheritance, but they are not here asserting that right. Beyond that they each had the right of action which they are asserting and which is conferred upon them directly by the statute, and the husband had, moreover, the right of action which as master of the community he possessed before the statute in question (or Act No. 71, of 1884, which, preceded it) was adopted, for the recovery of the expense to which the community was subjected by reason of the injury inflicted upon, and death of, the child.”

Counsel for defendant urge that the amendment to plaintiff’s petition filed on March 18, 1930, should not have been allowed for the reason that it alleged a new cause of action. The amendment did not change, add to or modify in any way the “Cause of Action” as set forth in the original petition. It merely set forth the fact that gave the plaintiff her “Right of Action.” The allowance of this amendment was wholly within the discretion of the trial judge and we would not be justified in disturbing his ruling in this instance. The amendment simply set forth the status of the plaintiff more clearly. It did not change- it in any way.

PLEA OF PRESCRIPTION

In their exception filed on February 24, 1930, counsel for defendant included a plea of prescription contending that since the withdrawal of C. B. Myers as one of the plaintiffs removed from the suit the only plaintiff who would be authorized to prosecute the suit, and since more than twelve months had then elapsed since the injuries on account of which this suit was brought, all right of action on the part of anyone had prescribed and that the suit should, therefore, be dismissed at once. This plea of prescription was properly overruled for the reason that we have already held that the wife had the right to prosecute the suit in her own name and therefore no prescription will apply to her right to remain in the suit.

On March 18, 1930, after the trial had been, going on for one day, the plaintiff filed her amendment setting forth the fact that the decedent left no surviving spouse or minor children. Counsel for defendant objected to the filing of said amendment for the reason that it came too late and that it changed the issue, and for the further reason that it was barred by the prescription of one year and requiring service on the defendant. We think the amendment was properly allowed and that the objection and plea of prescription was properly overruled.

In Winsor v. Taylor, 167 La. 169, and on page 181, 118 So. 876-881, Chief Justice O’Niell said:

“Lanis v. Illinois Central Railroad Co., 140 La. 1, 72 So. 788, is authority for the corrollary, or converse of the proposition applicable to this case. In that case, the plaintiff, in her individual capacity, brought suit under the Federal Employers’ Liability Act (Act of April 22, 1908, c. 149, 35 Stat. 65; U. S. Comp. St. sections 8657-8-665 [45 USCA sections 51-59]), for compensation for the death of her husband. The statute gives such a right of action only to the personal representative of the deceased employee; and the sixth section declares that no action shall be maintained under the statute unless it is commenced within two years from the day the cause of action accrued. The suit of the widow individually was commenced within the two years, but was met with an exception of no right of action, which was sustained; but, under authority of the decision in Missouri, Kansas & Texas Railroad Co. v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134, the plaintiff was allowed to qualify as administratrix of the succession of her husband, and to amend her petition by apipearing as personal representative of the deceased. She qualified as administratrix and filed the amended petition, appearing for the first time as personal representative of the deceased, after the two years had elapsed. The defendant pleaded the prescription of two years, but the court overruled the plea, maintaining under authority of M., K. & T. R. Co. v. Wulf, that the bringing of the suit by the widow in her individual capacity prevented the application of the statute of limitations, because the amending of the petition so as to bring the suit in the name of the administratrix and personal representative of the deceased was not the bringing of a new suit. And so we maintain in this case that the amending of he plaintiff’s petition so as to make the Third District Land Company a party deendant was not the bringing of a new suit.”

In the case of Lanis v. Illinois Central Railroad Co., which Chief Justice O’Niell cites in the above case, the plaintiff wrongfully brought the suit in her own name. On exception of the defendant it was held that she had no right to appear, but she was allowed to change her status and capacity by qualifying as administratrix. After this she amended her petition and set forth her new status and capacity after the prescriptive period and it was allowed over the protest of the defendant and in face of the plea of prescription which was overruled. If the plea of prescription was overruled in that case, it certainly should be overruled in the present case, for there has been no change of the status or capacity of Mrs. Myers, the plaintiff herein. The amendment simply alleges what was already true, that is. that the decedent left no surviving spouse or children, whereas in the Lanis v. I. C. Ry. case the plaintiff was permitted to change her status or capacity and then to amend her petition accordingly after the prescriptive period. The plea of prescription was properly overruled, therefore, by the trial judge, and we likewise overrule it as filed and as renewed in this court.

ON THE MERITS

In her petition the plaintiff alleges in effect that her deceased son was an “invitee” and that the defendant owed him the care usually extended to invitees under the law. The defendant, in its answer, in article 10 alleges as follows:

“Defendant avers that the (presence of the deceased was at the request of himself and his teacher solely and for the benefit of said deceased, and in addition to the warning given, the danger was apparent, and there being no hidden defects in defendant’s plant or machinery or wires, and the deceased being simply a licensee by request, under no condition could defendant be liable in damages for any injuries received, as he took the premises as found, free from any warranty on the part of defendant.”

It is therefore seen that the decision of this case on its merits depends upon the question whether the defendant was an “invitee” or a “licensee.” The plaintiff alleges that her son was an invitee. The first witness called by the plaintiff was J. Pipes, principal of the Jena High School. He testified that on January 22, 1929, he called Joe Davis, manger of the defendant’s ice plant in Jena, over the telephone. Pipes testified:

“I asked Mr. Davis if he was making ice that day and he said they were, and I said, ‘Mr. Wade wants to bring his chemistry class down there, what about it?’ He said, ‘All right, tell them to come ahead.’ ”

This was in the forenoon and the request for permission to bring the chemistry class to visit the ice plant was made for the afternoon of the same day. In the course of his testimony, Pipes- answered as follows:

"Q. You made that request of Mr. Davis for the benefit of the high school class ?
“A. Yes, sir.
“Q. They were not there on business for the Gulf Public Service Corporation?
“A. No, sir.
“Q. As I understand it was the chemistry class taken down there for their benefit and not for the services of this company?
“A. Yes, sir.
“Q. That was at your request. It wasn’t suggested by Mr. Davis?
“A. No, sir.
“Q. He didn’t invite you to bring them down there?
“A. No, sir.
“Q. As I understand it this young man was reasonably well developed both physically and mentally?
“A. Yes, sir.
“Q. Approximately about nineteen years old?
“A. Yes, sir,, about nineteen the way we figured it.
“Q. Mr. Pipes, had you made any agreement or had you known of any agreement made with the manager of the ice plant by which there was a standing .invitation to bring the class of students down there?
“A. No, sir.
“Q. If there was such an agreement you didn’t know of it?
“A. I ought to have known it if there had been. I should have known it. I always get permission every time.
“Q. You don’t know whether the manager of the ice (plant had this class down there for advertising purposes or not?
“A. I don’t think he did.
“Q. You don’t know whether it was for advertising purposes of the defendant or not?
“A. No, sir, I don’t.”

Mr. D. C. Wade, teacher of the class in chemistry, who was in charge of the students during the visit to the ice plant, testified as follows:

“Q. It is a fact that these classes were taken to this ice plant on the request of the school authorities, you and others in charge of those classes, for the purpose of the class work in their chemistry studies?
“A. Yes, sir, I got permission both times, and the purpose was to let them see how ammonia was used in making ice.
“Q. You knew that plant was operated by electricity at that time, didn’t you?
“A. Yes, sir.”

It is not necessary to quote further from the testimony to show that the decedent and all the rest of the members of the chemistry class visited the ice plant on this occasion solely for the purpose of observing the processes used in the manufacture' of ice, particularly with reference to the use of ammonia. The visit was in no sense or degree for the interest or benefit of the defendant, nor was it made at the suggestion of the defendant or any of its employees. The request for the permission to make the visit of observation came from the chemistry class and its members as represented by the teacher of the class and the principal of the high school. There was no common interest or mutual advantage. The benefits to be derived from the visit were educational and were to inure solely and strictly to the benefit of the visiting members of the class, and in no way directly or indirectly, did the defendant benefit by it. It was a pure accommodation and inconvenience on the part of the defendant and its employees.

2 Words & Phrases, second series, 1192 and 1193, in distinguishing between an inviteh and a licensee, and between the duty of the owner in each case, sets forth the law very clearly as follows:

“As respects the question whether a person is on premises as a licensee or by invitation, ‘ “invitation” is inferred where there is a common interest or mutual advantage, while license is inferred where the object is the mere (pleasure or benefit of the person using it.’ Southern Ry Co. in Kentucky v. Goddard, 89 S.W. 675, 676, 121 Ky. 567, 12 Ann. Cas. 116 (quoting and adopting distinction stated in 1 Whart. Neg. sec. 349).
“ ‘Invitation’ is a term whose legal import is known and may be used to express the relation between an owner or occupier of land, and one who comes thereon under certain circumstances. The invitation which creates such relation may be express, as when the owner or occupier of lands by words invites another to come on it, or make use of it, or something thereon, or it may be implied as when such owner of occupier by acts or conduct leads another to believe the land or something thereon was intended to be used as he uses them, and that such use is not only acquiesced in by the owner or occupier, but is in accordance with the intention or design for which the way or place or thing was adapted and prepared or allowed to be used. There is a clear distinction between a “license” and an "invitation” to enter ¡premises, and an equally clear distinction as to the duty of an owner in the two cases. An owner owes to a licensee no duty as to the condition of premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril, or willfully cause him harm; while to one invited he is under obligation for reasonable security for the purposes of the invitation. Mere permission to enter the premises creates the relation of licensee; invitation, expressed or implied, is necessary to create the more responsible relation, and the consequent higher duty upon the owner or proprietor. Mandeville Mills v. Dale, 58 S. E. 1060-1062, 2 Ga. App. 607 (quoting and adopting definition in Sweeny v. Old Colony & N. R. Co., 10 Allen (92 Mass.) 368, 87 Am. Dec. 644; Turess v. New York, S. & W. R. Co., 40 A. 614, 61 N. J. Law, 314; Beehler v. Daniels, 18 R. I. 563, 565, 29 A. 6, 27 L. R. A. 512, 49 Am. St. Rep 790). * * *
“An implied ‘invitation’ to use dangerous premises, as distinguished from a mere license, arises when a benefit accrues to the owner from such use, or when the use is in the interest of both parties, or is connected with the owner’s business. Cleveland, C., C. & St. L. Ry. Co. v. Powers, 88 N. E. 1073, 1077 [89 N. E. 485], 173 Ind. 105 (citing Northwestern El. R. Co. v. O’Malley, 107 Ill. App. 599; Plummer v. Dill, 31 N. E. 128, 156 Mass. 426, 32 Am. St. Rep. 463; Dixon v. Swift, 56 A. 761, 98 Me. 207; 29 Cyc. p. 454).”

4 Words and Phrases, third series, pages 526 and 527, defines and distinguishes between an “invitee” and a “licensee” as follows:

“To constitute one person an ‘invitee’ of another, there must be some mutuality of interest. Petree v. Davison-Paxon-Stokes Co., 118 S. E. 697, 698, 30 Ga. App. 490.
“ ‘An invitation of the owner or occupant of premises is implied by law where the person goes on the premises for the benefit, real or supposed, of the owner or occupant, or in a matter of mutual interest, or in the usual course of business, or for the performance of some duty.’ Middleton v. Ross, 213 F. 6 (2), 10, 129 C. C. A. 622. To constitute such an ‘invitee,’ however, there must be some mutuality of interest. Crossgrove v. Atlantic Coast Line R. Co., 118 S. E. 694, 695, 30 Ga. App. 462.
“To give a person entering private grounds the standing of an ‘invitee,’ it must appear that his purpose when he entered the premises was one of interest or advantage to the owner or occupant; knowledge, consent, or permission even, standing alone not amounting to an invitation. Coburn v. Village of Swanton, 109 A. 854, 856, 94 Vt. 168. * * *
“The distinction between a ‘licensee’ and an ‘invitee’ upon a railroad track is not merely one of descriptive phraseology, an invitation being inferred where there is a common interest or mutual advantage, while a license is implied where the object is the pleasure, convenience, or the benefit of the person enjoying the privilege. Jonosky v. Northern Pac. Ry. Co., Am. St. Rep. 790.) * * *
“In differentiating between ‘invitees’ and ‘licensees’ an invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it. Midland Valley R. Co. v. Littlejohn, 143 P. 1, 2, 44 Okl. 8.
“One on premises by invitation, express or implied, is an ‘invitee,’ whereas one who is there merely by permission or toleration is mere ‘licensee,’ and, as to the former, owner of premises must use reasonable care, whereas to latter he owes no greater duty than to avoid willful or wanton injury. Lange v. St. Johns Lumber Co., 237 P. 696, 698, 115 Or. 337.”

From the testimony quoted above, together with the citations defining and differentiating between, the terms “invitee” and “licensee,” the decedent clearly occupied the position of a licensee. It remains, therefore, to determine whether the defendant and its employees discharged their full duty and obligation to the decedent as a licensee.

As stated in 1- Wharton, Neg., section 349:

“An owner owes to a licensee no duty as to the condition of premises unless imposed by the statute, saving that he should not knowingly let him run upon a hidden peril, or willfully cause him harm.”

Did the defendant or any of its employees let the decedent .run upon a hidden peril, or did they willfully cause him harm? No one knows how this young man, a member of the graduating class of the Jena High School, nineteen and one-half years old, happened to reach up over his head and grasp this live wire. In the petition, it is alleged that he was walking over a slippery surface, and being in the act of falling, reached up and caught the wire to save himself from falling; but there is nq evidence to the effect that the floor or any part over which the students were walking was slippery. On the contrary, it is in evidence that the tops of the water tanks or ice containers over which decedent was walking when the fatal accident occurred had been specially mopped and dried for the occasion of this visit. In (plaintiff’s petition it is alleged that the “approximate cause of his death was the failure of the said Gulf Public Service Corporation, its agents and employees, to warn petitioner’s said son of the exposed high voltage live wire in said room and of the dangerous condition therein.’’

Did the employee of the defendant, who led or directed these students, give the directions and warnings required in the case of licensee? Did he knowingly lead these students, particularly the decedent, upon a hidden peril? This live wire was not hidden. It was overhead six feet and three inches above the level of the floor. It was in plain view of every one and out of ordinary reach. The decedent was a young man practically grown. He was possessed at least of ordinary intelligence. He knew, or should have known, that this ice plant was operated by electricity. This was a matter of common knowledge. As a “bare licensee” he was required under the law to take these premises as ' he found them. He was there on a tour of observation for educational purposes. He should have observed this wire without having it called especially to his attention and having observed it, he should have instantly known the danger of touching it. He evidently knew its danger without being warned. It is more likely that he touched the wire and grasped it involuntarily as one of the girl students testified she started to do, and was prevented by one of her classmates. It would appear, therefore, that the defendant’s employee did not lead decedent upon a hidden peril.

But what did this employee do to warn these students concerning this wire? On the trial of the case plaintiff used nine witnesses. Three of these testified that a warning was given as to the danger from the wire. The defendant used six witnesses and they all say that warnings were especially given, so that nine out of fifteen witnesses in the ease testify positively that warnings were given. The employee who acted as a guide on this occasion stated that he gave two separate, special warnings to the entire group of students, then at another time, when he came very near coming in contact with this live wire himself, accidentally, he issued another general warning. In this he is corroborated by two of the students, Misses Lois King and Irma Lee Stone. So we think it is conclusively established by the testimony that the employees who conducted this class of students through the factory gave at least three general warnings to them in a group. Whether these warnings reached absolutely every student, and particularly the decedent, we are unable to determine. But it is most likely that several did not hear it as at least six witnesses testified they did not. But it is certain that every student could have received these warnings if they had been attending to the leadership of the employee. It must be taken into, consideration that these were high school seniors. They were supposed to (possess a high degree of intelligence and every one of them should have known better than to grasp any kind of wire in this building. Furthermore, it must be remembered that these students came to this ice factory under the care and direction of the teacher of the class, and the defendant’s employee had a right to suppose that they would remain under his guidance and direction during the entire visit.

•We therefore conclude that the employee of the defendant did not knowingly lead the decedent upon a hidden peril and that he did not willfully cause him harm. It appears further that the employee discharged his full duty to this class in issuing the warnings which he undoubtedly did. The failure of the decedent either to heed these warnings if heard, or, if not, to hear them or any of them, is not to be charged to the defendant. It was a deplorable tragedy but because it was does not cast blame upon the defendant.

We.have been unable to find a case in our own state that is directly in point, but there are cases in the other states very similar to the one at bar. Among the leading ones that involve the identical issue and circumstances as exist in the present case is Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973, 974, 20 L. R. A. 714, 39 Am. St. Rep. 436. In this case the principal of the Baltimore Manual Training School addressed a note to the president of the Baltimore Traction Company asking' for permission to the graduating class of this school to visit the plant or power house of the defendant. Permission to do so was written by the president at the bottom of' the note. In this case it was alleged that the injured student, plaintiff in the case, was, “with thirty-odd other scholars and the teachers thereof, granted special written permission by the defendant company to visit a certain ¡power house * * * for the purpose of viewing and examining the works and machinery therein contained.” Upon the presentation of the written permission of the president of the defendant company, the students were admitted and taken in charge by the defendant’s agents and employees. They were shown throughout the plant. It is alleged that during this visit, after the guide had left them to themselves, plaintiff, without warning or means of preventing it, fell into a vat or sink some two or two and one-half feet deep, full of boiling water, which vat or sink was flush or even with the floor, uncovered or open, and situated in a ¡part of the building insufficiently lighted. Suit was brought for damages sustained by the negligence of the defendant. A demurrer, or exception of no cause of action, was filed by the defendant and this was sustained by the trial court. An appeal was taken to the Maryland Court of Appeals and the action of the lower court was sustained. In the course of a well-considered opinion the court said:

“It has been earnestly contended that by the admission of the appellant to the power house in the manner stated a duty was thereby imposed upon the appellee to guard the appellant from the dangers of said vat ‘by warning him of its existence, or by covering the same, so as to make his passage through said premises reasonably safe.’ In this we do not concur. The vat was apparently a part of the useful appliances connected with the purposes for which the power house was constructed, and was in no proper sense a mantrap.
“The appellee was under no obligation to take one of his employees from his work to conduct the appellant and his schoolmates and their teachers through the power house; nor was the appellee required to make alterations in the manner in which it was accustomed to conduct its business, in order that these young men might go through the building. They were under the control and direction of the teachers who accompanied them, and the appellee might have reasonably inferred that they were sufficiently cared for. Even though the guide had continued with the class, there was no reasonable guaranty that one of these 30 boys would not have fallen into the selfsame vat. The principal of the school had, doubtless, some conception of the character of the machinery and appliances contained in the power house, otherwise he would scarcely have sought admission; and, if there was negligence anywhere, it consisted in bringing thirty-odd boys at one time to a building filled with dangerous machinery.”

Another strong case analogous to the one under consideration is Weaver v. Carnegie Steel Company, 223 Pa. 238, 72 A. 552, 21 L. R. A. (N. S.) 466. In this case the plaintiff was one of more than two hundred men who visited the plant of the defendant. In going about over the plant, plaintiff fell through an opening in the floor which was used for the purpose of removing rubbish that accumulated from time to time in the cellar below. Plaintiff did not notice this opening in the floor and fell through it into the cellar, and in doing so was seriously injured. The plaintiff brought suit for damages on account of the injuries and the trial judge directed a verdict for the defendant. On appeal this action of the lower court was sustained. In affirming this judgment the Pennsylvania Supreme Court said:

“Counsel for appellant contends in his argument that the defendant company, having granted permission to visit its works, and furnished a guide, was under the implied duty of warning and guarding the plaintiff against the danger of falling into the particular opening in the floor into which he walked. A steel mill is by no means a place of public entertainment. If visitors go there to gratify tbeir curiosity in seeing the process of manufacture, they must take the premises as they find them. In Gillis v. Pennsylvania R. Co., 59 Pa. 129, 98 Am. Dec. 317, this court held that a person using the private property of another by (permission of sufferance takes upon himself the incidental risk. And this doctrine has been many times reiterated as was done with emphasis in Thompson v. Baltimore & O. R. Co., 218 Pa. 444, 19 L. R. A. (N. S.) 1162, 120 Am. St. Rep. 897, 67 A. 768, 11 Ann. Cas. 894. In the present case permission was sought and obtained in behalf of the body of gentlemen who were visiting the mill. The object of the visit was to afford pleasure and benefit to the visitors; so that the facts show merely a case of license upon the part of the owner. There is nothing in the record to show that appellant was invited or induced by any act of the defendant to visit the steel mill, but it does appear that he went there entirely for his own personal gratification. The authorities are almost uniformly to the effect that licensees and guests assume the ordinary risk of getting hurt while upon the premises of the licensor or host. But they do not assume extraordinary risk, such as would arise from anything in the nature of a concealed trap. In this case the opening into the cellar was part of the apparatus arranged for the convenient and proper operation of the mill, and was in no sense a trap or an obstruction to anyone making good use of his senses. The guide could not reasonably be expected to give close individual attention to each one of the 200 or more visitors who were following him. He could show the way, but something had to be left to the good sense of the visitors in following through a somewhat dangerous course.”

Still another case which sustains us in the conclusion we have reached is Roe v. St. Louis Independent Packing Co., 203 Mo. App. 11, 217 S. W. 335, 336. This is a case where a class of sixty-one boys of about fifteen years of age visited the ice plant of the defendant after special permission had been granted at the request of the instructor who had the boys in charge. The plaintiff, one of the number, fell into a vat of boiling water and brought this suit for the resulting damages. On the trial of the case the instructor testified as follows:

“ T did not go over there, nor did any of these boys go over to this plant for any benefit or profit in any way to the St. Louis Independent Packing Company. It was solely for the purpose of the education of the boys. The company did not derive any profit from it at all.’
“Plaintiff himself testified:
“ T went to this plant with a group of boys from the Young Men’s Christian Association for my own curiosity and benefit. I did not go for any business of the Independent Packing Company. Arrangements were made for me to go. I did not go there to buy anything or do any work for them.’ ”

The trial judge directed a verdict in favor of the defendant, and in sustaining this action the St. Louis Court of Appeal said:

“The Benson Case (77 Md. 535, 26 A. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436), supra, is cited with approval in Barry v. Cemetery Ass’n, 106 Mo. App. 358, 80 S. W. 709, and it likewise meets with our approval. By no reasonable inference, from the facts as they appear in the record before us, could the defendant be viewed as having sought to entice, lure, or induce plaintiff to visit the plant in question. Packing plants such as that conducted by the defendant can in no wise be viewed as places of public entertainment, and those who obtain permission, out of curiosity or desire to instruct themselves as to the processes of manufacture, to visit such plants must take the premises as they find them. They are bare licensees, and enjoy such license with its concomitant perils and subject to the risk of pitfalls “ or other obstructions incident thereto, ‘the owner being liable only for concealed spring guns, or other hidden traps * * * put out to injure them or any form of willful, illegal force used towards them.’ Kelly v. Benas, 217 Mo. 1, 116 S. W. 557, 20 L. R. A. (N. S.) 903; Glaser v. Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; and cases therein cited.”

In Poling v. Ohio River R. Co., 38 W. Va. 645, 18 S. E. 782, 787, 24 L. R. A. 215, 223, the West Virginia Supreme Court said:

“A mere sightseeer, on no other business goes into any one of the large modern factories in operation throughout the civilized world. It requires great care and watchfulness on his part, unfamiliar as he is with such places and things, to avoid danger and escape injury, although the place is reasonably safe and fit, and everything is carried on with due ordinary care; but unless there is wanton injury, the result of gross negligence, the owner is not liable. Why? The owner has set no trap for him; he did not induce, but only permitted, him to come; he is not there on business; the place and appliances belong to the manufacturing company; it was fixed for them and their employees; it suits them; by their knowledge and skill they avoid danger, though to those unskilled and unfamiliar it may be dangerous — dangerous to any one in fact; but it was not made for, and is not carried on for, any purpose with which the licensee has anything to do; if the injury is not wanton, the negligence is not gross, and the company is not liable, for it owed him no other duty, and that one has not been violated.”

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and plaintiff’s demands refused and her suit dismissed; the plaintiff to pay the costs of both courts.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,453
    Orleans
    HORRELL ET AL. v. GULF & VALLEY COTTON OIL CO., INC.
    (December 15, 1930. Opinion and Decree.)
    (January 19, 1931. Rehearing Refused.)
    (March 3, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Merrick, Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for plaintiffs, appellees.
    Rosen, Rammer, Wolff & Farrar, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This litigation results from the death of Walter J. Horrell, a young man twenty-four years of age, who died because of severe burns which he sustained while engaged in doing certain repair and reconstruction work in the manufacturing plant of defendant.

The plaintiffs, as the suit was originally filed were: (1) William Francis Horrell, Sr., father of the decedent; (2) Mrs. Jennie Furey Horrell, mother; (3) Edward Allen Horrell, minor brother; (4) Miriam Horrell, minor sister; (5) William Francis Horrell, Jr., brother, of full age. The petition charged that the decedent, at the time of the accident, was employed by his father, William Francis Horrell, Sr., one of the petitioners, and that he was engaged in assisting in “the setting up of brick work and construction of one of the furnaces”; that this work was being done under contract between his father, the said Horrell, Sr., as contractor, and the defendant as principal; that, while decedent was engaged in said work, a deodorizing tank, nearby, exploded; that in the said tank which exploded there was superheated steam and a solution of caustic soda, both of which, as a result of the explosion, were showered upon decedent and others, and that he received such severe steam and acid burns that he died some twenty hours later, after suffering terrible agony; that the explosion of the tank was the result of the negligence of defendant, or of its employees, or agents, or officers, and that defendant is therefore liable to petitioners. Decedent’s automobile, standing nearby, was damaged, and this item is also sued for by the survivors.

Defendant’s answer is in effect a general denial, though certain allegations are admitted to be true.

When the case came on for trial and the first witness was called by counsel for plaintiff, counsel for defendant objected to the introduction of any evidence on the ground that the petition failed to disclose a cause of action. That objection, we are told, was based on six distinct grounds, as follows:

(1) That the petition did not negative the existence of a wife and child, or children, of decedent, and that neither a mother, nor a father, nor a brother, nor a sister, has any right of action until it is alleged and shown that there is in existence neither a wife nor a child of decedent.

(2) That the brothers and sister of the decedent, even in the absence of a- wife or child, have no right of action where there is a mother or a father living.

(3) That even the father has no right of action for the expenses, of last illness, burial of the deceased, and for damages to deceased’s automobile, because, deceased being a major, these expenses may be claimed only by his personal representative; that is to say, his administrator, or his executor, or by his heirs, after judgment of possession.

(4) That the father” has no right or cause of action for the cost of a burial plot, this not being an element of damage within the contemplation of article 2315 of the Civil Code.

(5) That the mother has no right of action for medical services and expenses made necessary by her nervous shock, as these are community debts for which the husband alone can recover.

(6) That, no matter who may be entitled to recover for the death of decedent, the recovery should be in compensation under Act 20 of 1914, as amended, and not in tort under article 2315 of the Civil Code.

1. On this ground the exception was properly maintained because article 2315 of the Civil Code, under which this suit is brought, as amended by Act No. 120 of 1908, gives to the parents a right of action for the death of a child only in the absence of a surviving widow or children. Thus a petition which does not negative the existence of a widow and children fails to show a right of action in any of the more distant relatives. Blackburn v. La. Ry. & Navigation Co., 128 La. 319, 54 So. 865; Underwood v. Gulf Refining Co., 128 La. 968, 55 So. 641; Register et ux. v. Harrell, 131 La. 983, 60 So. 638; Marshall v. La. State Rice Milling Co., 144 La. 828, 81 So. 331; Stearns v. Love Drilling Co., Inc., 5 La. App. 174.

However, it is equally clear that the district judge exercised proper discretion in granting to plaintiffs the right to amend, in order that they might: make the allegation that there was in existence neither wife nor child of decedent. It is within the discretion of the trial court to permit amendments where the petition is defective because of insufficient allegation only. Where the petition manifestly alleges every 1 fact that can be alleged, and yet a cause of action is not disclosed, no amendment should be permitted, because no amendment can cure such defect. Here, however, the deficiency results, not from the plaintiffs’ inability to make the proper allegation with regard to the absence of a wife and of a child, but merely from oversight in omitting such allegation from the original petition. In Blackburn v. La. Ry. & Navigation Co., supra, 'an amendment was permitted. In Register et ux. v. Harrell, supra, the Supreme Court held that to permit such an amendment was within the discretion of the court. In Stearns v. Love Drilling Co., Inc., supra, this court remanded to the district court a suit in order that such an amendment might be made in that court. In Cazeaux v. N. O. Public Service, Inc., 14 La. App. 320, 124 So. 685, 687, we said:

«* * * The whole trend of modern procedure is to do away with technicalities and to permit amendments where no cause of action is based upon the insufficiency of the allegations, of the petition.”

2. That the brothers and sisters have no right of action for the death of a brother, where the petition shows that there are a father and a mother still living, is evident from a mere reading of the codal provision to the effect that it is only in default of a wife or child, or father or mother, that the brothers and sisters have a right of action. Since the petition affirmatively alleged the existence of persons in a class preceding in right to brothers and sister, no amendment could be effective in eliminating that obstacle to the claim of the collaterals, and the petition was properly dismissed so far as they were concerned.

3. and 4. It appears to us that the objection was well founded on grounds 3 and 4, and that these items should have been eliminated, but we are unable to say whether they were taken into consideration by the jury in fixing the amounts awarded..

5. On ground 5 the objection was well founded, and no recovery should be allowed the mother for her medical expenses, et cetera, as these are recoverable only by the husband as head and master of the community. In Shield v. F. Johnson & Son Co., Ltd., et al., 132 La. 773, 61 So. 787, 788, 47 L. R. A. (N. S.) 1080, the Supreme Court said:

“Both defendants excepted, on the ground of no cause of' action. This exception is aimed, in part, at those items of damages set forth in the petition for doctor bills, nurse bills, drug bills, clothing, and hospital ambulance service connected with the injury alleged by plaintiff.
“These are expenses of the community for which the husband is responsible; and he alone can recover therefor.”

6. Ground 6 of the exception presents the principal defense upon which defendant relies, and in support of it is made the following contention: That, according to the petition, defendant is engaged in one of the hazardous enterprises within the contemplation of paragraph 2 of section 1 of Act No. 20 of 1914 (Workmen’s Compensation Act of Louisiana); that under paragraph 1 of section 6 of that act no principal, within the contemplation of the act, may contract with any one else to do any part of the general work which comes within the category of the trade, business, or occupation of the principal, or any part of the work undertaken by the principal by contract, without becoming liable to the employees of the independent or subcontractor for such compensation as may become due to such employees or their dependents; that the remedy provided by the Workmen’s Compensation Act is exclusive, that is to say, that a master who is liable in compensation cannot be also liable to the same employee in tort for the same injuries; that the work decedent was engaged in doing was a part of the trade, business, or occupation of defendant, and that, thus, under paragraph 1 of section 6 of the statute, defendant, if liable at all, is liable in compensation and not in tort. It may be well at this time to set forth in full paragraph 1 of section 6 of the act:

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

In considering the question raised by this contention, we at once notice that it is not all work which the principal may require that the act prevents his contracting away without retention of compensation liability, but only such as is a part of his trade, business, or occupation, or which he may have contracted to perform for some one else.

It is, we believe, quite plain that a manufacturing concern, upon organization, may contract with an independent contractor for the erection of its factory building without retaining liability under the Compensation Act to employees of the independent contractor who undertakes the construction. It is no part of the trade, business, or occupation of the manufacturing concern to erect its factory building. Its business is to operate it after its erection.

On the other hand, it is clear that, after the factory is completed and is in operation, the principal may not employ an independent contractor to undertake any part of the business of operating the factory and thus escape liability in compensation to the employees actually engaged in carrying out the work undertaken by the independent contractor. For instance, if defendant here had employed Horrell to furnish the necessary labor to operate the boilers, it is quite evident that Horrell’s employees would, under the provisions of section 6 of the act, be entitled to look to defendant for compensation in the event of injury. We thus see that, if the original construction work is not a part of the business of the principal, that work may be contracted away, whereas the operation of the factory after construction is completed, being a part of the business of the principal, may not be so contracted away without the retention of compensation liability.

If the principal may contract with the independent contractor for original construction, we see no reason why he may not contract for additional necessary construction, or reconstruction later on. If the work contracted for is within the category of operation, then, of course, it may not be contracted for except under the conditions imposed by section 6.

Into what class shall we place the work in which decedent here was engaged and which his father had contracted to do? We notice in the petition the work is referred to as “setting of brickwork and construction of one of the furnaces,” and we notice that the allegations of this article S are, in the answer, admitted to be true.

The record shows that the particular kind of brickwork which was being done required specialists, and that the regular employees of defendant did not engage in that kind of special work.

But defendant contends that even reconstruction or alteration work, since it is necessary in the continued operation of the manufacturing plant, is within the contemplation of the act, and cites many cases, some of which, unless carefully analyzed, seem to support this view. For instance, in Fox v. Fafnir Bearing Co. et al., 107 Conn. 189, 139 A. 778, 779, 58 A. L. R. 861, the injured workman was an employee of one McGrath, who, as a contractor, had und'ertaken to clean all the windows in the factory of defendant, which was engaged in the manufacture of bearings. The Connecticut statute provided that a principal employer should be liable in compensation to the employees of an independent contractor if the work which the independent contractor had undertaken was “a part or process in the trade or business of the principal employer.” The court held the principal employer liable to the injured employee of the independent contractor, but the reasons given show that that case is distinguishable from the case at bar, and rather supports plaintiffs’ contention than that of defendant. There the court said that the cleaning of windows is nothing more than ordinary janitor work, and is usually performed by the regular employees of the general employer, and “is clearly distinguishable from work done in connection with the repair or alteration of the factory buildings.”

In Burt v. Munising Woodenware Co. et al., 222 Mich. 699, 193 N. W. 895, the general employer entered into a contract with an independent contractor under which the latter undertook to repair a boiler in the manufacturing plant of the general employer. It was held that the employee might seek compensation directly from the general employer. While this case appears to squarely support the contention of defendant, it is possible that on two grounds it may be distinguished from the case at bar. In the first place, the work being done was manifestly nothing but repair work on a piece of equipment already installed, and there is nothing to show that that repair work may not have been done by the employees of the general employer himself, and, furthermore, the Michigan statute, though somewhat similar to that which we are now considering, was plainly much broader in its terms, and was not limited in this regard to such work as is part of the trade, business, or occupation of the principal.

In Caca v. Woodruff, 70 Ind. App. 93, 123 N. E. 120, another case relied on by defendant, we find facts in many respects indistinguishable from the ones presented here. A carpenter was engaged to add an additional room to a mill building. He was injured, and claimed compensation from the mill owner. But the question presented there was not in any way similar to that which confronts, us. There the injured party was employed directly by the mill owner, there was no intermediate employer, and the defense made was that the employment was merely casual, and that therefore the employee could not recover in compensation, since the Indiana statute did not afford relief, unless the employment was both casual and not in the usual course of the trade, business, occupation, or profession of the employer. The court found that the employee had, on several occasions in the past, been employed to do similar work, and that thus his employment •was not casual. Since he was not a casual employee, he was entitled to compensation. #

In Clementine v. Ritchie, 1 La. App. 296, it was conceded that Ritchie was regularly in the business of building houses. Clementine was an employee of one Willis, an independent contractor who had undertaken to perform, through his employees, all the carpenter work on a house Ritchie was constructing. The court held that carpenter work was a component part of the general work of Ritchie, the building of houses, and that thus. Ritchie was responsible under section 6 of the act to any one engaged in the carrying out of that part of his business. If defendant were in the business of erecting oil refineries for sale, the Ritchie case would be apposite.

In Seabury v. Arkansas Natural Gas Corporation, 171 La. 199, 130 So. 1, the defendant was in the business of erecting and operating oil wells. It employed an independent contractor to move certain equipment to be used in the erection and boring of a well. The independent contractor employed Seabury to haul certain pipe. Sea-bury was injured, and, under section 6 of the act, sought compensation directly from the oil company. The court held that it was part of the business of the oil company to drill wells, as well as to operate them, and that, since Seabury was hauling equipment to be used in drilling, he was engaged in the trade, business, or occupation of defendant. If we could hold that the erection or reconstruction of an oil refining mill was a part of the business undertaken by defendant .here, the Seabury case would be applicable, but its business was not to erect mills, but solely to operate them. But no good purpose can be served by an analysis and discussion of every decision cited. It will probably be very often difficult to decide whether the work in any given case falls within or without the section. It is, as was said in Mantor v. Cantwell [1920] A. C. 781, cited in Fox v. Fafnir Bearing Co. et al., supra “neither convenient nor proper to travel beyond the facts of a particular case to lay down general rules to govern cases which may or may not arise hereafter.”

Defendant has. cited several cases in which direct employees have been held to be under the general protection of the act, although the work they were at the 'oime engaged in was admittedly even less closely related to the trade or business of the master than was the work which decedent here was engaged in doing.

Under the general provisions of the statute, as distinguished from the special provisions of section 6, an employee may recover if injured by an accident arising out bf and in the course of his employment, and this language has been interpreted very liberally, and it has been many times said that work need only be incidental to the general business of the master in order to bring the employee performing it within the coverage of the act.

Section 6 is not so broad, and it is easily conceivable that, between the broad limits of the general provisions of the statute and the more restricted limits of section 6, there is a zone in which must be placed an employee who is engaged at work incidental to his employer’s business, and who thus comes within the general provisions, but- who, if performing the same work for an independent intermediate contractor, might be said to be not engaged in the carrying. out of a part of the trade, business, or occupation of the principal.

A study of section 6 of the act and recognition of the purpose intended to be served thereby, and an analysis of the many cases to which we have been referred, leads us to the conclusion that a general employer or principal may, without retaining liability to the employees of an independent contractor, employ such independent contractor to do such special work as is not generally done directly by others engaged in the same line of business as is the principal, such as special construction, or even such unusual repairs as are ordinarily made by specialists not customarily within the direct employ of the principal. The record convinces us that the work which Horrell had undertaken was such special work, and no part of the trade, business, or occupation of the principal, and that thus section 6 of the act has no application, since the sole purpose of that section was to protect employees of minor contractors against the irresponsibility of their immediate employers by making the principal employer, who has general control of the business in hand, liable, as if he had directly employed all who work upon any part of the business which he has undertaken to carry on. The work being done by decedent here was not a part of the business which the principal had undertaken to carry on, but was, in fact, a part of the work some one else had undertaken to do for him.

If there is any right of action in plaintiffs, it arises under article 2315 of the Civil Code, and not under the Workmen’s Compensation Act.

In considering the question of whether there is liability in tort, we find it necessary to first determine whether the doctrine of “res ipsa loquitur” is applicable, because, after a careful review of the entire record, we cannot but reach the conclusion that the true cause of the accident has not been shown by a preponderance of the evidence, and that plaintiffs have failed in their attempt to show any of the specific acts of negligence charged; in other words, plaintiffs have not sustained the burden of proof. But was there such a burden placed upon plaintiffs here?

A leading Louisiana case involving the application of the doctrine of “res ipsa loquitur” is Lykiardopoulo v. N. O. & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976. In that case the court said:

“Where a plaintiff cannot be expected to have any information as to the causes of an accident, whereas defendant must be assumed to be fully informed, and where the accident is of the kind which ordinarily does not occur when dúe care has been exercised, plaintiff need not allege nor prove the particular acts of omission or commission from which the accident resulted; but the accident itself makes out a prima facie case, casting on defendant the burden to show absence of negligence, and this rule is of peculiar applicability in cases of boiler explosions.”

The facts of the case at bar bring it squarely within the doctrine just above quoted, and the inevitable result is that the doctrine contended for by plaintiffs is applicable and relieves them from the duty of bearing the burden of proof.

In fact, defendant does not dispute that this doctrine would ordinarily be applicable to the acts here, but contends that, where a plaintiff, who may take advantage of the doctrine of “res ipsa loquitur,” and who need neither allege nor prove any specific act of negligence, nevertheless undertakes to allege suck specific acts, that plaintiff must sustain the burden which he has voluntarily undertaken, and cannot recover unless he can prove by a preponderance of the evidence the acts charged. In many states other than Louisiana this contention has been sustained. For instance, in Corpus Juris, vol. 45, p. 1225, Verbum Negligence, sec. 786, is found the following:

“As the application of the doctrine of res ipsa loquitur proceeds on the theory that, under the special circumstances which invoke its operation, plaintiff is unable to specify the particular act of negligence which caused the injury, or that defendant is in a better position to do so, the authorities are practically uniform * * * that where the allegation of negligence is general only and is unaccompanied by specific averments which go to the breach of the duty relied on, plaintiff is entitled to invoke the presumption of negligence arising under the rule of res ipsa loquitur. However,- as stated in some of the cases, there is considerable conflict in the authorities as to the effect of plaintiff’s pleading specific acts of negligence as the cause of injury upon his right to rely on or invoke the doctrine under consideration. Thus, in conformity with the general rule that, where a declaration based on negligence avers a particular act as to the cause of the damage, plaintiff in order to recover must establish the specific negligence alleged, it is held in some jurisdictions that, where plaintiff, instead of relying upon a general allegation of negligence, sets out specifically the negligent acts or omissions complained of, the doctrine of res ipsa loquitur cannot be applied, even though the case was a proper one for the application of the doctrine under a general allegation of negligence only.”

But we need not concern ourselves with the question which is presented by plaintiffs having thus unnecessarily alleged specific acts of negligence and with regard to the jurisprudence of other states on the subject, since, so far as this state is concerned, the jurisprudence, scant as it is, is to the effect that in such situations as would ordinarily render the doctrine of “res ipsa loquitur” applicable allegations of specific charges of negligence are merely surplusage, and do not deprive plaintiff of the benefit of the doctrine, if, in addition to the specific charges, there is a general allegation of negligence. In Frazier v. South N. O. Light & Traction Co., No. 8608 of our docket (not reported) [see Louisiana and Southern Digest], it was contended, just as defendant contends here, that the doctrine of “res ipsa loquitur” is not applicable where plaintiff alleges specific acts of negligence, but this court said:

“But the defendant argues, that the above rule is correct when the plaintiff makes only a general allegation of negligence on the part of the carrier; but if he alleges the specific acts of negligence, the burden of proof is shifted to the plaintiff who must prove those acts or fail in his suit. In support of his position he quotes numerous authorities from other States, but none from this State.
“The plaintiff in this case does allege general negligence on the part of the defendant. Inasmuch as under our jurisprudence that allegation was sufficient to entitle plaintiff to recover, we consider all the specific allegations of negligence as mere surplusage, and not essential to be proven by plaintiff.”

We find in the petition a general charge of negligence as follows:

“Your petitioners show that all of said damage, suffering and death was caused by defendant’s negligence. * * *”

Since, then, the doctrine of “res ipsa loquitur” is applicable, the burden is on defendant to show by a preponderance of the evidence that there was no negligence on its part, and we have reached the conclusion that in this case it has failed. It is true that the record does not show precisely what did cause the explosion, but this is not enough to relieve defendant from liability, particularly since there are shown three possible causes, none of which could have occurred without negligence on the part of defendant.

According to McLean, a boiler expert, the explosion occurred because the boiler, or tank, had been weakened by the removal of a ring of bolts and the substitution therefor of electrical welding. Surely, if this was the cause, defendant was liable. In Myhan v. La. Electric L. & P. Co., 41 La. Ann. 964, 6 So. 799, 800, 7 L. R. A. 172, 17 Am. St. Rep. 436, the Supreme Court said:

“At any rate, it was the duty of the defendant company to have known of the dangerous character and condition of the wires. The knowledge which they ought to have had, the law presumes, juris et de jure, they had. Even had the company’s representatives sworn that they did not know of the same, such ignorance on their part would not have exculpated them. A superior is presumed to know, and in law knows, that which it is his duty to know, namely, whatever may endanger the person and life of his employee in the discharge of his duties.”

In Potts v. Shreveport Belt Ry. Co., 110 La. 1, 34 So. 103, 98 Am. St. Rep. 452, we find the following:

“The fact that frequent inspections of the line were made to ascertain the condition of the wires and remedy defective insulation, does not relieve the company of liability. If the span wire had become dangerously charged with the electrical current, the company’s inspection should have been thorough enough to have detected it. It is the company’s business to know the dangerous defects in or 'along its lines, and, knowing, to safeguard the same.”

In Whitworth v. South Arkansas Lumber Co., 121 La. 894, 46 So. 912, 914, the following language appears:

“The owner must manage to keep machinery in order, or else in case of accident he is exposed to liability. That is another issue settled by repeated decisions. Clairain v. Western Union Telegraph Co., 40 La. Ann. 178, 3 So. 625; Williams v. Lumber Co., 114 La. 805, 38 So. 567; Moses v. Grant Lumber Co., 114 La. 933, 38 So. 684; Roff v. Summit Lumber Co., 119 La. 571, 44 So. 302.”

According to Liepsner, another expert placed on the stand by plaintiffs, the cause was the sudden injection into the tank, already partially filled with hot caustic soda solution, of an additional quantity of the cold solution, with the result that a liquid blow was struck on the bottom of the tank, causing it to break. He describes this phenomenon as follows:

“As this hotter liquid is forced near the upper part of the tank it is at a temperature above the boiling point of the more dilute solution, and then we get an almost explosive effect, due to the evaporization of the lighter lower boiling point solution at the top of the tank, and a sudden development of pressure within the liquid in the tank, resulting in a sudden blow — a liquid blow — which, in my opinion, caused the primary rupture of the tank at the bottom.”

Surely, in an operation so extremely dangerous as is shown to be that of boiling out a tank with caustic soda solution, it is negligence not to know that the injection of cold solution into the tank containing boiling water may have just the result Liepsner suggests.

The third possible cause which is assigned by some of the witnesses is that the employees in charge of the tank may have closed the large ten-inch valve in the top of the tank, which, when open, allows the extraordinary pressure to escape. This last seems to us the most probable of the three, as, after the accident, this valve was found almost entirely closed, and as one of the officials of the defendant, at the subsequent grand jury investigation, admitted that the valve had probably been left closed.

It is almost certain that the cause of the accident was one of the three occurrences to which we have referred, and, as we have already said, no one of them could have occurred without negligence on the part of defendant’s employees. It necessarily results, therefore, that defendant is liable.

The judgments awarded $5,000 to each of the parents. That the suffering of decedent for almost twenty-four hours must have been beyond human comprehension cannot be denied. His clothing was literally burned from his body by the acid. It is practically impossible to place a monetary value on human life, and it is quite impossible to value in dollars and cents human suffering. No one knows whether the young man, had he lived, would have soon married. How long he would have continued to assist in the maintenance of his parents we are unable to say. We have considered many awards sanctioned by us and by the Supreme Court in other cases. We find it unnecessary to discuss items making up the respective claims of the two parents. Suffice it to say that, having given due consideration to many former awards, and in view of the exemplary habits of the young man and his most excruciating suffering during the last hours of his life, we believe the awards made by the jury should not be disturbed and are consistent with former allowances in similar cases.

The judgments appealed from are affirmed, at the cost of appellant.


author: ELLIOTT, J.

text:
    No. 721
    First Circuit
    HOPPE v. STEWART STAGE LINES, INC.
    (March 3, 1931. Opinion and Decree.)
    John B. Fournet, of Jennings, attorney for plaintiff, appellant.
    Cline, Plauehe & Girod, of Lake Charles, attorneys for defendant, appellee.
   ELLIOTT, J.

Fred Hoppe, the plaintiff, driving a motortruck on the highway between Welsh and Jennings during the month of February, 1928, was struck by a motor omnibus belonging to and while being driven by an employee of Stewart Stage Lines, Inc., and was badly injured as a result of the collision. He claims of Stewart Stage Lines, Inc., defendant, the sum of $15,100 on said account.

The plaintiff alleges that the collision and his resulting injuries were due entirely to the fault and neglect of the driver of defendant’s omnibus.

The defendant denies, the fault and neglect alleged against it by the plaintiff, and alleges that the collision and plaintiff’s injuries came about entirely as the result of the neglect and fault of the plaintiff himself in turning to the left across the highway without giving the proper signal of his intention to do so.

The case was tried before a jury. The jury rendered a verdict on the facts only, finding unanimously in favor of the defendant on every question which it was called on to decide. The court acting on the facts as, found by the jury, rendered judgment in favor of the defendant, rejecting plaintiff’s demand.

The plaintiff has appealed.

The evidence shows that plaintiff was badly injured as a result of the collision. He endured great pain. His suffering was prolonged for a long time, his injuries are to some extent permanent, and he has been put to heavy expense; but, unless it was due to defendant’s fault or neglect, the plaintiff cannot recover from it on account of same.

The truck belonging to and being driven by plaintiff was loaded with fence posts seven feet in length loaded on the truck crosswise. The number being carried does not appear. The body of the truck was only six feet wide, and that fact tends to support the idea that the ends, of the posts stuck out a little beyond the side of the truck. Plaintiff contends, however, that his vision to the rear by means of a mirror in front of him, with which his truck was, equipped, was not obstructed, and that his mirror disclosed defendant’s omnibus to his view as it came up behind him. Defendant contends, however, that the posts stuck out beyond the side of the truck, and that the load was piled so high that ■ the driver of the omnibus, immediately behind the plaintiff, could only see his hat. Plaintiff alleges and testifies that he timely stuck out his hand giving the usual and customary sign, before he started to turn to his left across, the road, and that defendant’s driver saw, or should havé seon it and checked his speed and not tried to pass him while he was turning in the road. Defendant denies that plaintiff, gave any such signal, and its driver testifies that no signal was given. That if plaintiff’s hand was extended out as claimed, it was concealed from defendant’s driver and not seen, because of the load of posts in front of which plaintiff was seated.

Plaintiff further alleges and testifies that, even if defendant’s driver did not see the signal which he made, he saw him turning' to the left across the road in ample time to have checked his speed, even stopped and avoided striking him, but that the excessive and reckless speed at which defendant’s driver was driving made it impossible to check his speed so as to avoid hitting him. The evidence is conflicting on every important question of fact in the case.

The plaintiff testifies on every point that the fault and neglect in the matter were due to the driver of defendant’s omnibus, and that he himself was not at fault nor in any way neglectful. That the driver of defendant’s omnibus was not looking ahead with due attention, else he would have seen the sign which the pláintiff made and could have taken heed, and there would have been no collision, if defendant’s driver had used proper care.

But on every question the plaintiff is contradicted by the driver of defendant’3 omnibus, who testifies that he was not at fault; and that plaintiff himself was the party at fault.

As for defendant checking its speed or stopping after seeing the danger created by plaintiff’s turn across the road in front of him, defendant’s driver testifies that plaintiff was driving slowly and did not make any sign that he was about to turn across the road; at least, none that could be seen. That desiring to get ahead, he undertook to pass to the left of the truck. That for the purpose of passing he sped up his omnibus, and that plaintiff did not turn to the left until he was so close to him that it was impossible to either pass in front of or behind him, or to stop, and therefore the collision was inevitable, due to the fault of the plaintiff in turning across the road without making a sign, or one that could be seen from the omnibus, indicating that he was about to do so.

The driver of the bus testifies that he had no reason to believe or suppose that plaintiff would turn to the left across the road at that place because there was no road that led to the bridge; that the bridge only gave access to a field, and that defendant’s driver had no reason for believing that plaintiff intended to turn into the field at the time he speeded up to pass him in the road.

Defendant’s driver is corroborated more or less as to these matters by a couple of passengers in the bus, and we do not find it possible to say that the jury was in error in finding in favor of the defendant, nor that the court was in error in rendering judgment based on the verdict of the jury and rejecting plaintiff’s demand.

For these reasons the judgment appealed from is affirmed.

Judgment affirmed. Plaintiff-appellant to pay the cost in both courts.


author: WESTERFIELD, J.

text:
    No. 13,562
    Orleans
    CONSTANCE v. LOUISIANA POWER & LIGHT CO.
    (February 16, 1931. Opinion and Decree.)

      Andrew H. Thalheim, of Gretna, attorney for plaintiff, appellant.
    M’Caleb & M’Caleb, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action.

The petition alleges in substance that plaintiff, intending to become a passenger of the defendant street railway company7 approached the front end of the car, which was the customary way for passengers to enter, but that her foot caught in the fender, causing her to fall and sustain the injuries for which she sues. She alleged that the accident was due solely to the fact that the car was unlighted, compelling her to board it in the dark.

It is contended that, since Act No. 119 of 1912 requires all street railways to equip their cars with fenders, plaintiff should have had knowledge of the existence of the fender and made allowance therefor, that there is no law in the state which requires carriers to have the front fender illuminated, and that persons stumbling over it in the dark have no right of action for consequent injuries, since the injuries are due entirely to their own imprudence, carelessness, and negligence.

In our opinion, the fact that the law requires the defendant to equip its cars with fenders is wholly immaterial. The issue presented by this case is whether, under the circumstances obtaining, a safe mode of ingress was provided by defendant for its passengers, consistent with the duty of exercising the degree of care which the law imposes upon public carriers in the interest of public safety. Shally v. N. O. P. S. & S. & W. Board, 1 La. App. 773; Thomas v. Shreveport Rys. Co., 13 La. App. 217, 127 So. 119; Moses v. Louisville, N. O. & T. Ry. Co., 39 La. Ann. 649, 2 So. 567, 4 Am. St. Rep. 231; Conway v. New Orleans C. & L. R. Co., 51 La. Ann. 146, 24 So. 780. Whether that duty was discharged in this case depends upon whether plaintiff’s allegations, which appear to us as adequate for the purpose, are maintained after a trial upon the merits.

For the reasons assigned, the judgment appealed from is reversed, the exception of no cause of action overruled, and this case remanded for further proceedings, according to law and consistent with the views herein expressed.


text:
    No. 738
    First Circuit
    BRAUDS’ SUGARS, INC., v. WILLIAMS RICHARDSON CO., LTD.
    (March 3, 1931. Opinion and Decree.)

      Ellender & Ellender, of Houma, and Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for plaintiff, appellant.
    Harris Gagne, of Houma, attorney for defendant, appellee.
   ELLIOTT, J.

This is a contest involving the ownership of certain property which was in its nature movable, but which Brauds’ Sugars, Inc., alleges was attached by Crescent-Magnolia Planting & Manufacturing Company, Limited, its former owners, to a tract of land and a sugar house, belonging to it at the time and made immovable by destination. Brauds’ Sugars, Inc., alleges that it became the owner of the land and of the refinery and sugar house thereon by purchase at sheriff’s sale in the foreclosure of a mortgage which has been granted on the property by the Crescent-Magnolia Planting & Manufacturing Company, Limited, to which it was attached at the time of the mortgage, which was foreclosed, and that the ownership of the ¡property in question vested in it as part of the immovable.

Williams Richardson Company, Limited, a judgment creditor of Crescent-Magnolia Planting & .Manufacturing Company, Limited, caused the property in question to be seized by the sheriff of the parish of Terrebonne and to be advertised for sale, the purpose being to sell it and apply the proceeds as a credit on its said judgment. Brauds’ Sugars, Inc., intervened, opposed and enjoined the sale, alleging its ownership as above stated.

The property seized and claimed by Brauds’ Sugars, Inc., is described as follows: A certain narrow-gauge railroad dummy named “Minerva”; a certain press drill, grindstone, and forge bellows; a certain lot of manilla rope consisting approximately of 250 pounds; a certain lot of crude oil in tanks, consisting of approximately 750 barrels; a certain lot of cylinder oil, amounting to 3% drums, approximately 175 gallons.

The court sustained plaintiff’s claim to the press drill, grindstone, forge bellows, and cylinder oil, amounting to 3Vz drums, approximately 175 gallons, on the grounds stated, but rejected its demand to the balance of the property.

The plaintiff has appealed.

The case was submitted to the lower court and is before us on a statement of facts. Brauds’ Sugars, Inc., has filed a brief, citing authorities in support of its demand, but we find none in behalf of Williams Richardson Company, Limited. Brauds’ Sugar, Inc., intervener and third opponent, claiming the ownership of the property in question against the seizing creditor, and the judgment debtor has made the seizing creditor a party defendant, but the judgment debtor was not made a ¡party to the suit. Williams Richardson Company, Limited, the seizing creditor, accepted service of the petition of intervention, waived citation and the service upon it of a oopy of the order of the court, notice of rule, and of summons to comply with the restraining order, but did not file any answer to the demand of the intervener.

An intervention and third opposition claiming the ownership of property seized against the seizing creditor and the judgment debtor is a demand that should be answered by the adverse parties. Code Practice, art. 393; McCoy v. Sanson (Estate of Carasco, Intervener), 13 La. Ann. 455; Burge v. Batson, 149 La. 542, 89 So. 687, but in the case Seib v. Cooper, 170 La. 105, 127 So. 380, 382, the court, referring to an intervention that had not been answered, says:

“We know of no rule of practice which requires an answer to the allegations of an intervention. '■ Such allegations are held to be traversed by all parties to the suit without pleading thereto” — citing authority.

This late decision does not in terms speak of article 393 of the Code Practice and the earlier decisions. It is our want to be guided by the latest decision of the Supreme Court on any subject, but in this case the question of ownership between Brauds’ Sugars, Inc., and Williams Richardson Company, Limited, is put before us on this appeal on the part of Brauds’ Sugars, Inc., without Williams Richardson 'Company, Limited, having judicially either admitted or denied the demand of the intervener. We note, however, that the minutes of the lower court do not show that Brauds’ Sugars, Inc., caused to be entered any default on its demand against Williams Richardson Company, Limited. The agreement of the parties as to the facts may take the place of a default, and there is no motion to dismiss; consequently we should act on the appeal and on the record as brought before us. There is no dispute about the facts, and we are called on to apply the law to admitted facts.

The statement of facts shows that Brauds’ Sugars, Inc., is the owner of a “certain' tract of land containing five acres, situated in the parish of Terrebonne about 12 miles above the town of Houma, taken from the northern half of the plantation known as the Magnolia Plantation, together with the sugar house, sugar house machinery, apparatus equipment, tools, etc., together with all the rights, ways, privileges, servitudes and appurtenances attached thereto or in any way appertaining, which said five acres on which said sugar house, etc., stands is more particularly shown by reference ■ to a map of Isle of Cuba and Magnolia Plantations surveyed November 1924 by L. Q. Huey, C. E.” The further description of the immovable is not necessary for the purposes of this suit.

That beginning at a time previous to the 14th of May, 1925, and continuing until 15th of March, 1930, Crescent-Magnolia Planting & Manufacturing Company, Limited, domiciled in the parish of Terrebonne, was the owner of said five-acre tract of land with the sugar house, machinery, apparatus, equipment, tools, etc., placed thereon by the said Crescent-Magnolia Planting & Manufacturing Company, Limited.

That Brauds’ Sugars, Inc., acquired the said immovable with said property thereon by purchase at a foreclosure sale made by the sheriff in the foreclosure of a mortgage on said property. That the property in question belonged to the said Crescent-Magnolia Planting & Manufacturing Company, Limited, and was placed on said immovable during the existence of the mortgage.

That all the property in question was situated on the five acres of land mentioned, except the 700 barrels of crude oil which was stored in a large tank a few hundred feet from the factory site, but connected with the factory by means of an underground pipe, and was for the use' of the factory in its grinding operations. The sugar house had not been operated for three seasons, presumably the three seasons (previous to the date of the agreement, which was April 24, 1930.

That Crescent-Magnolia Planting & Manufacturing Company, Limited, plaintiff’s vendor in the sheriff’s sale, operated the Isle of Cuba and Magnolia plantations and the refinery as a unit. That the unit mentioned was dismembered at the foreclosure proceedings at which plaintiff became the purchaser of the five acres of ground with the sugar house and refinery, etc., thereon; the Isle of Cuba plantation by another, and the Magnolia Plantation by another purchaser. That the unit was broken up, not as a result of the consent and approval of Crescent-Magnolia Planting & Manufacturing Company, Limited, and the seizing creditor, but as the result of the foreclosure of mortgages which the Crescent-Magnolia Planting & Manufacturing Company, Limited, had granted on its properties. That the three properties were operated as a unit, at the time the mortgages under which they were sold were granted. That the dummy called “Minerva” was used to haul the cane produced on the property to the factory. That the oil was in the tank during the existence of the mortgage to the Louisiana Trust & Savings Bank and was to be used in the operation of the factory in grinding cane from the Isle of Cuba and Magnolia plantations at the time they were operated as a unit. That the other property seized occupied the same situation as the oil and the dummy.

It seems to us, from this statement of facts, that all the (property claimed by Brauds’ Sugars, Inc., and involved in this suit was destined by the owner at the time it was brought on this property for the service and improvement of the sugar house. The 725 barrels approximately of crude oil in tanks was not actually on the factory site, but it was connected with the factory by an underground pipe and destined for use in its operation. It was destined to be used in the factory for the purpose of grinding the cane produced by the plantations belonging to and operated by the same owner. It was in our opinion an adjunct and fixture of the sugar house to the same extent as was the cylinder oil, (press drill, grindstone, and forge bellows and other things placed on the ground for the operation of the sugar house and not intended for any other purpose or use. The destination was very similar in principle to that provided for by the Civil Code, art. 467, according to which: “The pipes made use of for the purpose of bringing water to a house or other estate are immovable and part of the tenement to which they are attached.” In the same way the dummy “Minerva” was destined for the service, improvement, and operation of the sugar house, and was not intended for any other (purpose or use.

We are therefore of the opinion that under the admissions upon which the case was submitted that Brauds’ Sugars, Inc., acquired all the property described in its petition as appurtenances of the immovable which it acquired at the foreclosure sale of the five acres with sugar house refinery, etc., thereon.

We find the judgment appealed from to be correct to the extent that the right of Brauds’ Sugars, Inc., is recognized and sustained to the press drill, grindstone, and forge bellows, and to that extent it is affirmed, but the demand of Brauds’ Sugars, Inc., for the 725 barrels approximately of crude oil in tanks, lot of manilla rope, approximately 250 pounds, and the dummy engine called “Minerva,” should also have been recognized and sustained, ’and the judgment is to that extent erroneous and is therefore annulled, avoided, and set aside, and Brauds’ Sugars, Inc., is now recognized and decreed to be the owner of the 725 barrels approximately of the crude oil in tanks, one lot of manilla rope, approximately 250 pounds, and the dummy engine called “Minerva,” and that said property be restored to Brauds’ Sugars, Inc. The injunction sued out by Brauds’ Sugars, Inc., against Williams Richardson, Limited, preventing the sale of said property, is perpetuated; Williams Richardson Company, Limited, to pay the costs in both courts.