text:
    No. 13,782
    Orleans
    WOMACK v. HIGHWAY CONST. CO., INC.
    (October 19, 1931. Opinion and Decree.)
    (November 30, 1931. Rehearing Refused.)
    Dufour Bayle, of New Orleans, attorney for plaintiff, appellee.
    Henry & Cooper, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff claims compensation for temporary total disability and medical expenses under the workmen’s compensation statute (Act No. 20 of 1914, sec. 8, as amended by Act No. 242' of 1928), alleging that he was employed at a salary of $175 per month by the defendant to operate a drag-line excavating machine used by it at Bayou Goula, La., in the construction of a levee; that on May 12,1930, about 3 o’clock in the afternoon, the gears of the machine broke; that while making the necessary repairs and lifting the heavy gears and the gear shield into position, he “strained his back,” causing a “traumatic sacroiliac sacro lumbar strain of the left side of his back”; that his injuries were of such a nature as to necessitate medical attention and his confinement in a hospital, where he was kept in a Buckholz’s position with weights attached to his left leg for three weeks or more, and thereafter he was placed in plaster of paris jackets, one of which he is still wearing.

The defendant admits the employment and salary of plaintiff, but denies that he sustained an accident or accidental injury while working for it, and, if so, that the accident in no way caused the sacroiliac sacro lumbar strain.

There was judgment in favor of the plaintiff, as prayed for, and defendant has appealed, contending that the judgment is erroneous because plaintiff failed -to prove by a preponderance of the evidence that he sustained an accident while engaged in its services and that the injury of the plaintiff resulted from the alleged accident.

The record shows that the defendant company was engaged in the business of constructing levees under contract with the United States Government and was using a large machine called a drag-line excavator for the purpose of excavating and conveying earth, out of which the levee was built. The plaintiff was employed by the defendant on September 20, 1929, as an operator, his duties consisting of running the machine and making any necessary repairs. He was a young man of 23 years of age, 5 feet 10 inches tall, and weighed 175 pounds; he worked regularly and was in good health aside from suffering from constipation, diseased tonsils, .and rheumatism in his left knee. On or about May 12, 1930, the gears of the excavator got out of order and the plaintiff, with' a crew of three or four workmen, undertook to repair them. While so engaged and assisting the other men in lifting the gear and gear shield, plaintiff suffered a strain of his back. That afternoon he complained to one of the men, who was temporarily in charge during the absence of the superintendent, that he had strained his back while repairing the gears and was having pain in his left hip. He continued to work the balance of the afternoon operating the machine, which appears to have been less laborious than the work of repairing the geárs. While going to the camp wnere the employees of the defendant obtained board and lodging, he again complained of pain in his back to two other workmen, who noticed that he walked in a stooped position. The next day he performed his usual work and the witnesses for both the plaintiff and defendant noticed that he walked with a marked list and complained of rheumatic pains in his back and left hip. The pain became so severe that two or three days after the alleged accident, . either, on the levee or at the camp, he told one of the owners of the defendant company that he was suffering from rheumatism in his back and hip and asked him to suggest a good doctor.

The next day the plaintiff consulted Dr. Phillips, who had been recommended to him, telling him he had been suffering from rheumatic pains in his back and left hip, but neglected to say anything about straining his back. After a thorough 'examination the doctor found that the plaintiff was suffering from constipation, infected tonsils and that his left leg was longer than his right leg. He prescribed a sedative to ease the pain, a built up shoe for his right leg to compensate for the deficiency in length, and recommended the removal of his tonsils. The plaintiff carried out the instructions of the doctor and had his tonsils removed by another surgeon, Dr. Edison, at Baton Rouge. He then went to his home at Denham, Springs, where Dr. Williams treated him, recommending hot baths, which he took regularly, but he failed to obtain relief, his condition becoming more aggravated.

The plaintiff had an accident and health insurance policy and made an application for sick benefit, as he was suffering from rheumatism caused by his tonsils, but did not make any claim for accidental injury. The proof of claim was signed by the plaintiff and Dr. Williams, who diagnosed plaintiff’s ailment as “soreness of left sciatic nerve.” In the physician’s certificate, also filed in connection with the claim, Dr. Phillips states that plaintiff was suffering from “tonsilitis, arthritis and lumbago.” In neither doctor’s certificate is anything said about accidental injury.

Plaintiff’s condition failing to improve, he consulted another doctor, who recommended Dr. Hatch, a specialist in bone and joint surgery. Plaintiff Informed this doctor of the nature of his work and the history of his ailment, and, based upon this history and also his own examination of the plaintiff, Dr. Hatch diagnosed the case as “a traumatic sacroiliac sacro lumbar strain of the left side of his back.” The doctor put the plaintiff to bed in a hospital in what is called a Buckholz’s position, i. e., one of complete r.est on a hard bed, with his left leg put up in extension, viz., with a weight attached thereto so as to relieve the muscle strain and allow the parts to get into a normal position. When this condition obtained, which is determined by a lack of further spasms of the muscles and the ability to raise the leg without pain, the patient was placed in a plaster of paris jacket, which was changed on January 7, 1931, and a new one applied. His condition improved until he was able to walk on crutches, but at the time of the trial on January 26, 1931, he was still wearing the cast and was unable to return to his employment.

The law is clear that it is incumbent upon the plaintiff, in a suit under the workmen’s compensation act (Act No. 20 of 1914, as amended), to prove by a preponderance of the evidence* that is, with legal certainty, the fact that an accidental injury was sustained and causal connection between the injury and the disability complained of. Piske v. Brooklyn Cooperage Co., 143 La. 455, 78 So. 734; Cordray v. Standard Oil Co. of La., 9 La. App. 458, 121 So. 220; Elix v. Glassell-Wilson Co., Inc., 9 La. App. 209, 119 So. 147; Youngblood v. Colfax Motor Co., 12 La. App. 416, 125 So. 883; Purvis v. Ware Construction Co., 5 La. App. 684; Dennis v. Fortuna Oil Co., 5 La. App. 709; Bailey v. Gulf Refining Co., 17 La. App. 43, 135 So. 265.

The defendant’s first complaint is that the petition alleges that the. injury took place on May 12, 1930, at 3 o’clock p. m., and tnat the plaintiff and his witnesses testified that the excavating machine broke down on that date, but- that the overwhelming evidence is that the break-down took place on May 10th. We believe, as our learned brother below, that this is an unimportant detail and would be relevant only if it affected the credibility of the plaintiff and his witnesses.

Defendant -next contends vigorously that the only direct evidence of the accident or injury is the plaintiff’s testimony, for no one else testified to seeing him injured. It is true that no one saw the plaintiff injured, but the peculiar nature of the injury, that is, the sacroiliac sacro-lumbar strain, makes it impossible for anyone to have “seen” such an accident. We must, therefore, look to the credibility of -the plaintiff and the corroborating circumstances of the alleged accidental injury and the medical testimony.

We are favorably impressed with the fact that the plaintiff did not immediately quit work, but while subject to considerable pain, continued the performance of his duties for three or four days. It was only after the pain became unbearable that he sought the advice of his employer for the purpose of securing a competent doctor to consult about his case. Believing that he was suffering from rheumatism, a natural sickness, he did not make any claim for disability caused by accidental means, but for disability from sickness. The plaintiff and the doctors who treated him before the time he placed himself under the care of Dr. Hatch believed that he was suffering from neuritis, or rheumatism. The judge, a quo, in his written reasons for judgment, said:

"I think there is no doubt that Mr. Womack had no thought until after he was treated by Doctor Hatch, and received Doctor Hatch’s opinion upon his case, that he had received any such injury while in the employ of the defendant as to entitle him to compensation, and he made no claim for compensation until after he had received treatment from Doctor Hatch. Until that time it is quite clear that he thought his condition was due to rheumatism, of which he had had an attack or some manifestation two or three years before. However, I think those circumstances rather support the plaintiff’s case, ’’"hey corroborate the opinion I had of him as he testified, that he is an honest man, who withheld his claims until he had some assurance that he had the right to make them. They confirm the view that he is not a mere malingerer, who, on slight excuse, runs to his employer for compensation. He thought he was suffering from rheumatism. It was not until Doctor Hatch told him different that he thought differently.”

The witnesses for both sides testified that the plaintiff complained of pain in his hip and back and that he walked in a stooped position from the day the gears were repaired until the time he left the camp -to consult Dr. Phillips three or four days later. Dr. Hatch testified most positively that the plaintiff was suffering from a traumatic left sacroiliac sacro lumbar strain. To offset this, the learned counsel for defendant calls our attention to the fact that Mr. Villere, a part owner of the company, and several employees on the job and Dr. Phillips, testified that the plaintiff, at the time he spoke to them, did not say that he strained his back handling the geai-s, but that he was suffering from rheumatism and further that plaintiff’s proof of loss was for disability growing out of sickness and not disability resulting from accident. We believe that the explanation of the plaintiff’s conduct in stating -that he was suffering from rheumatism was due to the fact that he' had had rheumatism in his left knee and believed that he had a repetition of his old malady. We cannot condemn him for having misjudged the cause of his pain, because even the doctors diagnosed his case as sciatic neuritis and lumbago and so wrote it in the physician’s certificates in connection with the claim under plaintiff’s policy.

We are of the opinion that the evidence amply sustains the finding of the trial court that -the plaintiff sustained an accidental injury.

On the issue as to whether there was causal connection, berween the injury and ‘the disability, Dj1. Edward S. Hatch, medical expert for the plaintiff, testified that he first saw the patient on September 13, 1930, and noted that the patient exhibited a very marked list to the right while standing or sitting, that the normal lumbar lardosis, or natural curve of his back, was lost; that the raising and extending of the left leg was very painful; that his teeth were in good condition; that his tonsils had been removed; that all motions of the hips, knees and ankles were normal; that from his examination and the history of the case furnished by the plaintiff, he was firmly of the opinion there was noA question but that the sacroiliac sacro lumbar strain was caused by trauma. On cross-examination he further testified that any sudden, severe twisting or wrenching of the back would cause such an injury.

Dr. Phillips, medical expert for the defendant, testified that he saw the patient only on May 16th and obtained from him a history of the ease; that plaintiff did not tell him about suffering a strain by lifting any heavy object; that the patient said he had come to him because of a pain in his left hip; that he had suffered from rheumatism in his left leg for' two years; that an examination revealed that plaintiff was affected with diseased tonsils and constipation and that his left leg was longer than' his right; and that he was of the opinion a sacroiliac strain could come from a congenital shortening of the leg.

As we view the situation, the testimony of these two experts do not necessarily conflict, because Dr. Phillips simply states that in his opinion a congenital shortening of the leg could cause a sacroiliac strain, whereas Dr. Hatch positively states that plaintiff’s injury was of traumatic origin. However, if it be said that there is a conflict in their testimony, then due to the fact that Dr. Hatch treated the patient for several months and had a better opportunity to observe the case than Dr. Phillips, who only treated the patient once, we believe that Dr. Hatch’s testimony would be entitled to greater weight.’

Counsel for defendant strenuously argues that in the interim between the time of the alleged injury and the time that Dr. Hatch saw plaintiff on September 13, 1930, plaintiff could have sustained this injury by some other means and that, on this point, we again have to accept his testimony, which is insufficient. Our answer to this argument is that the plaintiff was a young man in apparent good health, worked regularly and, from the time of the injury complained of, suffered pain and walked in a stooped position, requiring him to consult a physician, and that he was thereafter constantly under medical care. We, therefore, do not have to depend upon the unsupported testimony of the plaintiff, but have strong corroborative circumstances to support it. We agree with the trial court that the evidence establishes causal connection between the accident and the disability from which the plaintiff was suffering.

There is no question as to the correctness of the amount of compensation and medical expenses allowed.

For the reasons assigned the judgment is affirmed.


source: Caselaw Access Project

author: HIGGINS, J. JANVIER, J.

license: Public Domain

text:
    No. 13,719
    Orleans
    FLOTTE v. THOMAS EGAN’S SONS, INC.
    (May 11, 1931. Opinion and Decree.)
    (November 3, 1931. Rehearing Refused.)
    (January 4, 1932. Writ of Certiorari and Review Refused by Supreme Court.)
    Milner & Porteous and P. M. Milner, of New Orleans, attorneys for plaintiff, appellee.
    Arthur Landry, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant seeking to recover damages for alleged personal injuries. Defendant filed an exception of no right or cause of action, which was sustained by the lower court, and plaintiff has appealed.

The petition alleges in substance that plaintiff was employed by the United States Government as a railway pos.tal clerk; that defendant contracted with the Government to carry mail in regulation screen wagons and agreed to convey on the driver’s seat of each vehicle, whenever necessary, mail clerks to accompany the mail; that on January 30, 1930, at about 6:20 p. m., when it was nearly dark, plaintiff was riding on the right-hand side of .the driver’s seat of one of the wagons accompanying the mail to the Texas & Pacific train No. 21, at its depot; that upon reaching its destination the wagon stopped and that petitioner attempted to alight therefrom; that he “grasped the upright above the handle, on the right-hand side of the driver’s seat, stepped from the dash-board to the shaft, on the right-hand _side, sliding his hand gradually down the upright to support and guide himself, and jumped to the ground”; “that petitioner wore a -plain gold band wedding ring, on the- little -finger of his right hand, and as he jumped to the ground, this ring became hooked on some obstruction on the upright of which he had taken hold and down which he was sliding his hand to support himself in alighting”; “that as .a result thereof, his whole weight of one hundred and fifty-eight pounds was suspended ' on said wedding ring,” which cut and tore off the first joint of his finger, necessitating the amputation of the finger; “that said wagon at the time of the accident had no step on the right-hand side where petitioner had to alight”; “that said wagon at the time of the accident had its handle bar on the right-hand side, loosely attached to the upright, and that said handle bar was fastened to the upright by two bolts above and two bolts below”; “that the bolts were so arranged that the semi-spherical heads of- the bolts were towards the rear of the wagon, and the threaded ends of the bolts projected towards the front of the wagon, and were fastened with nuts”; “that the* upper of the two bolts holding the upper part of the handle on the right-hand side of the driver’s seat, on the date of the accident, was very long, and fastened the handle to the upright with two nuts on its threaded end, still leaving some of the threaded shank of the bolt projecting beyond the two nuts”; “that this was not the arrangement when said wagon left the factory, and that said handle was never intended to be so fastened to the upright, and that this constituted the grossest and most wanton negligence”; and that the plaintiff was in no way guilty of contributory negligence.

It is conceded by plaintiff that defendant only owed him the duty of ordinary care but he contends that the petition alleges facts and circumstances which show that the defendant was guilty of carelessness and negligence and did not exercise ordinary care.

Defendant contends that- the petition shows on its face that it was not guilty of any breach of duty that it owed to plaintiff and that the accident was caused solely by the fault of plaintiff.

It is a well recognized principle of law that upon considering an exception of no cause of action the court shall accept as true the statement of facts as -alleged in the petition.

Conceding that the petition does show that the defendant was guilty of negligence, a view most favorable to plaintiff, but upon which issue we refrain from expressing any opinion, we pass to a consideration of the question of whether the allegations of the petition show that plaintiff was guilty of contributory negligence.

The Supreme Court, in the case of Gibbs v. Illinois Central R. R. Co., 169 La. 457, 125 So. 445, 447, said:

“The only one of the cases cited in which an exception of no cause of action was sustained in advance of a trial on the merits is the Chargois case (148 La. 637, 87 South. 499), last noted supra. In that case the petition alleged the details of the accident about as fully, completely and minutely as could have been done, and the court found that the facts alleged showed a clear case of contributory negligence on the part of the deceased.”
* ***** *
“Contributory negligence is a special defense, and .unless the facts alleged, which are accepted as true for the purpose of the trial of an exception of no cause of action, show affirmatively that the deceased was guilty of contributory negligence, and that such negligence was the proximate cause of his death, the exception should not be maintained.”

See, also, Chargois v. Morgan’s La. & Tex. R. R. & S. S. Co., 148 La. 637, 87 So. 499.

From the foregoing authorities it appears that the court has a right to consider the question of contributory negligence where an exception of no cause of action has been filed and the petition shows clearly that plaintiff was guilty of such negligence.

It is not only the duty of one to exercise ordinary care to avoid injuring others, but it is likewise incumbent upon the party injured to exercise a like degree of care to prevent injury 6to himself. For, even if the defendant is guilty of a breach of such duty and the plaintiff is guilty of negligence or carelessness which contributes to his injury, he is barred from recovery under the theory or doctrine of law called contributory negligence. Ordinary care is synonymous with reasonable care. In speaking of this subject the Supreme Court of the United States said:

“There is no fixed standard in the law by which a Court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent; and what shall constitute ordinary care under any and all circumstances. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence.”

Grand Trunk R. R. Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 682, 36 L. Ed. 485.

Words and Phrases, vol. 5, New Series, 682, defines ordinary care and a very pertinent citation is used as follows:

“ ‘Ordinary care’ does not require anticipation of possible dangers but only those which usually happen or are likely to occur — not particular injury but some injury which will probably result.”

Overstreet v. Security Storage, and Safe Deposit Co., 138 S. E. 552, 148 Va. 306.

Now returning to the petition, the plaintiff states that he caught the upright above the handle and slid his hand down it to the point where his ring became engaged on the threaded end of the protruding bolt and jumped to the ground. He does not allege that he grasped the handle which was fastened to the upright for the purpose of assisting one in alighting from the wagon. He does not allege that the handle itself was insecurely fastened so that it would not have supported his weight. He does not allege that he used the handle in attempting to alight. But he does allege that he slid his hand down the upright, above the handle, and jumped to the ground. Under these circumstances it appears to us that the plaintiff failed to exercise reasonable or ordinary care in descending from the wagon and was, therefore, guilty of carelessness and negligence ’which contributed to the unfortunate accident.

We are of the opinion that the exception is well taken and, for the reasons assigned, the judgment appealed from is affirmed.

ON REHEARING

JANVIER, J.

Rehearing was granted in this matter because we feared that possibly we had failed to interpret the allegations of plaintiff’s petition as plaintiff intended and because we desired to follow the rule that, in considering exceptions of no cause of action, doubts as to interpretation of pleadings should be resolved in favor of the petitioner. The rule is well expressed in the opinion written by Mr. Justice St. Paul, then one of the members of this court, in Jacobs Candy Company v. Dennis Sheen Transfer Co., No. 8150, decided December 12, 1921, unreported (see La. and Sou. digests):

“* * * An exception of no cause of action should not be sustained unless it is clear that plaintiff can recover nothing under his claim; if the claim be only doubtful the exception should be overruled and the case heard on the merits.”

See, also, Goldsmith v. Virgin, 122 La. 831, 48 So. 279.

There was some apprehension in our minds that possibly we had affirmed a judgment dismissing the suit not because no cause of action existed, but merely because the petition did not affirmatively, clearly and positively set it forth. As has often been pointed out, an exception of no cause of action should not be sustained merely because of insufficient allegations, but an opportunity for amendment should be afforded, unless it appears that all that might have been alleged has been inserted in the petition and that, nevertheless, either no negligence is shown to have been committed by the defendant, or plaintiff himself' appears to have been contributorily at fault. Horrell et al. v. Gulf & Valley Cotton Oil Co., 15 La. App. 603, 131 So. 709; Cazeaux v. N. O. Public Service, Inc., 14 La. App. 320, 124 So. 685; Francis v. Barbazon, 10 La. App. 55, 120 So. 427; Blake v. Jefferson-St. Charles Transfer Co., 8 La. App. 310; James v. City of New Orleans, 151 La. 480, 91 So. 846; Davis v. Arkansas Sou. R. R. Co., 117 La. 320, 41 So. 587.

After hearing the matter reargued, we are well convinced that the plaintiff has made every allegation of negligence which the actual happenings rendered it possible for him to make and has, nevertheless, failed to aver facts showing fault on the part of the defendant, but on the contrary, has affirmatively set forth his own acts in sufficient detail to leave no room for doubt as to his own carelessness." Thus, a cause of action never accrued and no amendment could bring one into, existence.

The original decree is reinstated and, accordingly, the judgment appealed from is affirmed and plaintiff’s suit is dismissed at his cost. •


author: WESTERFIELD, J.

text:
    No. 13,895
    Orleans
    THOMPSON v. HAUBTMAN ET AL.
    (November 3, 1931. Opinion and Decree.)
    (November 16, 1931. Rehearing Refused.)
    (January 4, 1932. Writs' of Certiorari and Review Refused by Supreme Court.)

      Richard A. Dowling, Gasper Bossetta, of New Orleans, attorneys for plaintiff, appellee.
    Monroe & Lemann, Walter J. Suthon, Jr., of New Orleans, attorneys for Miss Ruth Haubtman, defendant, appellant.
   WESTERFIELD, J.

This suit results from a collision between two automobiles, a Ford and a Cadillac. ' The plaintiff, Mrs. Walter Thompson, was a guest in the Ford, which was owned and driven by Miss Ruth Haubtman; the other occupants of the car being Mrs. L. Haubtman, mother of Miss Haubtman, and Mrs. J. L. Thompson, sister of Miss Haubtman and daughter-in-law of th^ plaintiff. Mrs. Thompson was injured in the accident, and brought this suit for damages against Anthony Mussacchia, the driver of the Cadillac, and Charles Tamborello; the owner, and Miss Ruth Haubtman-, -the- driver- and- owner- of the'Ford car, in which she was riding- at the time of the collision. There was judgment below against all three defendants, in solido, in the sum of ?1,375, as prayed for, and Miss Ruth Haubtman alone has appealed. We are therefore only concerned with the question of Miss Haubtman’s responsibility for the accident.

A consideration of the conflicting testi: mony in the record raises considerable doubt in our minds concerning the correctness of the holding of our brother below to the effect that Miss Haubtman was at fault, but we are relieved from the necessity of weighing this testimony, because the' description of the accident given by plaintiff herself completely exonerates Miss Haubtman from all responsibility. Her statement of the affair, which she has not attempted to withdraw or qualify, is substantially as follows: Miss Haubtman was driving her automobile along the Chef Menteur road in the direction of the city of New Orleans, at a moderate speed, not in excess of 25 miles per hour, on the right side of the road, some distance from the center line. The Cadillac, which was going in the opposite direction, was speeding toward the Ford at the rate -of 60 miles an hour. It was not. on the right' side, as it should have been, but over the middle, and encroaching upon the path of the Ford, with which it collided because there was no chance for the Ford to avoid it. As a matter of fact, she concludes her testimony, which was taken by deposition, with the statement -that “I never noticed anything wrong with Miss Haubtman’s driving. She was considered a very good driver.”

In our opinion the plaintiff is bound by her testimony exonerating Miss Haubtmam Civil Code, article 2291, reads as follows:

“The judicial confession is the declaration which the party, or his ..special attorney in fact, makes in a judicial proceeding.
“It amounts to full proof against him who has made it.
“It can not be divided against him.
“It can not be revoked, unless it be proved to have been made through an error in fact.
“It can not be revoked on a¡ pretence of an error in law.”

In the case of Megason et al. v. Boleyn Lumber Co., 140 La. 431, 73 So. 257, it was held that a litigant was bound by the answers to interrogatories propounded by his adversary and destructive of his case, notwithstanding his testimony to the effect that he was under the impression that the interrogatories had been propounded by his own counsel and that his answers had been made thoughtlessly, and, as a matter of fact, were untrue. See, also, Kohn v. Marsh, 3 Rob. 48; State ex rel. Smith v. Dardenne, 131 La. 59, 58 So. 1032.

Our conclusion is that the judgment appealed from is erroneous in so far as it condemns Miss Ruth Haubtman, and it is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, in so far as it runs in favor of the plaintiff, Mrs. Waiter Thompson, and against Miss Ruth Haubtman, defendant, and it is now ordered that there be judgment in favor of the defendant, Miss Ruth Haubtman, and against the plaintiff, Mrs. Walter Thompson, dismissing plaintiff’s suit at her cost. As thus amended, the judgment is affirmed.


author: HIGGINS, J.

text:
    No. 13,869
    Orleans
    ZUVICEH v. SCHNYDER
    (November 3, 1931. Opinion and Decree.)
    (November 30, 1931. Rehearing Refused.)

      Arthur Leopold and Gerald Netter, of New Orleans, attorneys for plaintiff, appellant.
    Henry & Cooper and John A. Smith, Jr., of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit by the widow of William Freibert to recover funeral expenses and compensation under the Workmen’s Compensation Act (Act No. 20 of 1914 as amended by Act No. 242 of 1928).

The defense is that the widow is not entitled to compensation because she was not living with her husband nor dependent upon him for support at the time of his injury and death.

There was judgment in favor of defendant and plaintiff has appealed.

The only evidence in the record on the issue presented is the testimony of plaintiff and her mother and an affidavit of plaintiff made two days after her husband’s death. These witnesses both testified that the plaintiff and her husband had been separated on' account of a series of Quarrels during November, 1929; that he was living at 315 Dauphine street and that she' resided with her mother at 3211 Dauphine street; that he occasionally visited her at her mothers home and that it was their intention to effect a reconciliation in the near future. The wife stated that during the period of separation ■ her husband contributed $8 per week or as much as he could afford. The mother stated that her daughter’s husband paid her board. The wife.also testified that she cohabited with her husband two weeks previous to the accident.

On cross-examination, when confronted with her sworn statement (which is wholly inconsistent with her testimony), made two days after her husband’s death, plaintiff admitted that the statement was freely and voluntarily given and that some of it was true but that “the report that I did not see him is untrue because I did.’’ She then reiterated her intention of effecting a reconciliation with her husband and that he contributed to her support.

The. pertinent part of the statement reads as follows:

“On April 28th, 1928 I married William Freibert in the courthouse of the parish of St. Bernard. We were married by Rene D. Cortes.. After our marriage we lived with my mother and father at 641 Callier St. New Orleans. Just prior to November 11, 1929 my husband William and I had a series of small arguments and on November 11, 1929 William packed his clothes and left my home. Since November 11, 1929 he never gave me any money to support either my child or myself and we never saw each other during, this period of separation. After William left my home I knew where he was living at 315 Dauphine St. and in order to support myself and my child I went to work at the Walle & Company, lithographers, and have been working ever since. I work on piece work basis and make from $7.00 to $10.00 a week. During the period of our separation I did not demand or request William to contribute to the support of my son or myself.
“I have read this statement and it is the truth.
“(Sgd) C. J. Freibert
“(Sgd) Mrs. Wm. Freibert.
“A true Copy
“(Sgd) L. J. Ferry, Notary Public.,”

The son referred to herein is a child of a previous marriage of the widow.

This statement is typewritten except the last line which is written in the handwriting of plaintiff. The only excuse plaintiff gives for having signed a statement contrary to her testimony is that it was made only two days after hér husband’s death and that she was grief-stricken. The written statement is couched in simple language which we are sure plaintiff understood. She does not claim that any advantage was taken of her and the notary public testified that he read the statement to her and that she declared that she understood it. We, therefore, conclude that the statement given, at an unsuspicious time, by plaintiff outweighs her testimony given at the trial and, therefore, find that the plaintiff was not living with her husband and was not dependent upon him for support at the time of his injury and death and that their separation was voluntary.

Paragraph (K) of subsection 2 of section 8 of Act No. 242 of 1928 amending Act No. 20 of 1914 reads as follows:

“No compensation shall be payable under this Section to a widow unless she be living with her deceased husband at the time of the injury and death, or be then actually dependent upon him for support. No compensation shall be payable under this Section to a widower unless he be living with his deceased wife at the time of the injury and death or be at such time incapable of self-support and actually dependent upon her for support.”

Paragraphs (A) and (B) of subsection 2 'of section 8 of Act No. 242 of 1928 read as follows:

“A. The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee.”
' “B. A wife upon a husband with whom she is living at the time of his accident or death.”

The identical question and same provisions of the compensation statute were fully discussed in the case of Harris et al. v. Louisiana Oil Refinery Corporation, 13 La. App. 416, 127 So. 40. In that case the court held that it was not necessary for the husband and wife to live in the same dwelling but that there should be no break in the marital relations or estrangement and that • it was sufficient if there was actual cohabitation for a part of the time and contribution to the support of'ihe wife by the husband to bring the widow within the provisions of the compensation act.

In the case of Milton v. Long-Bell Lumber Company, 165 La. 336, 115 So. 582, 584, a case involving the same issues presented here, the Supreme Court held:

“We think the facts show that at the time of decedent’s death, and for three or four months preceding his death, the • relator and the deceased lived separate and apart, by mutual consent; that relator maintained herself during that time, and, when her husband died, she cannot be held to have been dependent upon him for support, within the meaning of the Employer’s Liability Act * * *.
“With reference to the fifth assignment 'of error, we will say that the Court of Appeal found, as a fact, that plaintiff was not living with, and was not dependent upon, her husband when he was killed. It did not construe, but merely applied the ,letter of the statute to those facts, and correctly dismissed the suit.”

We believe that this case is decisive of the issue presented because in both cases the parties voluntarily chose tq reside separate and apart, the husband’s visits were only casual and the separation was in fact a physical one, and the wife was working and supporting herself without any assistance from her husband.

For the reasons assigned the judgment appealed from is affirmed.


author: ELLIOTT, J.

text:
    No. 820
    First Circuit
    VIATOR ET UX. v. TALBOT
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    L. O. Pecot, of Franklin, attorney for plaintiffs, appellants.
    Mouton & Davidson and Dan DeBaillon, of Lafayette, and Porteous R. Burke, of New Iberia, attorneys for defendant, appellee.
   ELLIOTT, J.

An automobile belonging to Rene Viator, while being driven by his son Harold, and in which were riding as his guests C. H. Hagen, Howard Brown, and two young ladies, struck against the corner of a load of Ihmber which was being carried on a truck belonging to Wilfred J. Talbot, with the result that Harold Via-tor, Howard Brown, and one of the young ladies in the car were killed.

The truck is spoken of at times as a six wheeled truck; at other times as a truck and trailer. The evidence shows that to a four wheeled truck was attached a two wheeled trailer, making a vehicle with three axles. The load of lumber was carried on a body which was supported by the last two axles.

The body on which was loaded the lumber will be hereinafterwards referred to as the trailer, and the motor part of the vehicle as the truck. The truck belonged to Talbot and was engaged in hauling the lumber for hire from Lafayette to New Iberia. The accident occurred in the parish of Lafayette just east of Broussard on •the highway known as the Spanish Trail, during the night of June 25, 1929, about the hour of 1 o’clock a. m.

The plaintiffs, father and mother of Harold Viator, allege that the lumber on defendant’s truck had been loaded crosswise, the ends projecting out on each side far beyond the side of the trailer. That .the trailer was loaded in a manner violative of Act No. 296 of 1928, particularly sections 37, 45, 46, and other sections of the act, and in utter disregard of the law of the road.

That the driver of defendant’s truck was a minor and not a licensed chauffeur; that the unlawful manner in which the trailer was loaded and attached to the truck, together with the want of care and skill on the part of defendant’s employee in driving, constituted negligence, carelessness, and resulted in .the automobile, which their son was driving, being struck by the trailer, whereby their son was’ impaled by the lumber projecting therefrom, causing his death.

They claim of the defendant $2,500 on account of the physical and mental suffering of their son; $2,000 on account of the loss of his companionship, solace, comfort, sorrow, and grief, and $500 on account of medical attention, drug bills, and funeral expenses; a total of $5,000.

Defendant denies being indebted to the plaintiffs on account of their son’s death; admits ownership of the truck and trailer, and that it was being driven by his employee from Lafayette in .the direction of New Iberia. He avers that plaintiffs’ son met his death by no fault of defendant, but through his own gross negligence and want of skill, carelessness, and disregard of the law of the road in driving his automobile.

There was judgment in the lower court in favor of the plaintiffs as prayed for.Defendant has appealed.

The evidence shows .that the collision took place at about 1 o’clock a. m. at night, in a curve of the highway just east of Broussard. The curve is spoken of by one witness as a circular curve, but the evidence taken all together shows that it is not circular, but a long gradual curve with an incline to .the west, the curve and grade being so gradual that those driving on the road should have no difficulty in keeping on their respective sides of the road at night, under their headlights, as required by law.

The evidence makes no reference to weather conditions as impairing visibility.

Defendant says that his -truck was seven feet wide and was loaded with lumber piled crosswise ten feet long. The truck, however, measured about 7 feet 6 inches wide, and the lumber on the trailer was 10 feet and 2% inches long and loaded crosswise, making its width on the road 10 feet and 2% inches. The loading was done by the defendant himself. It was completed a lit'tle after 12 o’clock at night and started toward New Iberia. The truck was equipped with headlights, the trailer with a tail-light.

The plaintiffs claim that the truck was being driven in the middle of the road, with the load projecting out on the left side about 16 inches beyond the truck, and without the clearance lights provided for by law. The defendant denies that .the truck was being driven in the middle of the road and urges that it was being driven on the right side of the road in the direction it was going, and urges that the entire fault for .the accident was on plaintiffs’ son, .the driver of their car. He states in his brief: “We will not trifle with the court by arguing that Mr. Talbot did not violate the law technically speaking — he was very frank with .the court and his testimony is sufficient to explain plaintiffs’ contention of his negligence in this case. He employed Bernard who had no chauffeur’s license. He loaded his truck himself with lumber crosswise ten feet wide, when the law restricted him to eight feet. He had no clearance lights to the side of the truck, as provided by law. These are facts and we admit them.”

Defendant contends, however, that his own violations of the law did not cause the death of plaintiffs’ son. That the gross negligence, carelessness, and want of regard, on the part of their son, for the law of the road, was .the cause of his own death. That himself and plaintiffs’ son both being negligent and at fault, the courts should let them remain as they are.

Defendant’s fault was of a very outstanding character, and when the trailer carrying the load of lumber got beyond the center of the left-hand side of the highway in the darkness, going east toward New Iberia, the death or great bodily harm to somebody in an automobile going west and meeting it was almost bound to very soon occur.

Act No. 296 of 1928, sec. 38 provides:

“No vehicle shall exceed a total outside width, including any load -thereon, of eight feet,” etc.

Section 50, subsection (e):

"Every motor vehicle * * * having a width at any part in excess of eighty inches shall carry two clearance lamps on the left side of such vehicle, one located at the front and displaying a white light visible under normal atmospheric conditions from a distance of -500 feet to the front of the vehicle, and the other located at the rear of the vehicle and displaying a (yellow or red) light visible under like conditions from a distance of 500 feet to the rear of the vehicle.”

Section 13:

“Drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main traveled portion of the roadway as nearly as possible.”

It follows from this, that the extreme width permitted under any condition is 96 inches, but defendant so loaded his trailer as to give it a width of 122% inches, and sent it out on the highway at night, without the clearance lights- on the left-hand side, which, under the law, should have been placed there. This load, carried by a moving vehicle on the wrong side of the road, sticking ou-t about 15 inches beyond the width of defendant’s truck, created a danger which anybody driving an automobile on the side of the road on which they belonged, meeting it, using ordinary care in the matter- of speed and looking ahead, would almost inevitably run into. Legal provisions of this kind are intended for the safety of people driving on the highways at night, and failure to obey same constitutes negligence per se. As showing the general rule of construction when it comes to statutes and ordinances of this kind, we quote from Cyclopedia of Automobile Law by Blashfield, Vol. 1, subject: Travelers proceeding on opposite courses, sec. 7, pp. 403-4, etc., referred to in plaintiffs’ brief:

“A person driving along a highway is not, on meeting a vehicle, obliged to go to the extreme right of the usable road, nor need he turn to the right, so that all of his vehicle is- to the right of the center, •but it is sufficient, if he goes as far to the right as prudence requires, or if he turns far enough, so that a passing vehicle, without turning at all, can pass safely.”

Same author, Vol. 2, subject: Rule that violation is negligence per e.e, sec. 1, pp. 1157-8-9:

“Under the principle that where the law requires some particular thing to be done by a person .to guard the personal safety of others, a failure to perform the -duty so imposed constitutes actionable negligence at the suit of a person of the class intended to be benefited and injured by such failure of duty without contributory negligence on the part of the latter, the rule supported by the great weight of authority is that the violation by the driver of a motor vehicle of traffic regulations of the state or municipality, so far as they embody express commands governing the use of such vehicles, is negligence per se, which will, if a proximate cause of the injury complained of, constitute a cause of action against the violator or preclude recovery by the violator of damages for such injury; it being understood that by violation is meant an actual one and not a mere technical violation or an act which is justified by the necessities of the case. This rule is particularly applicable to the violation of statutes which makes such violation a penal offense.”

Same author, same subject, sec. 6, p. 1168.:

‘‘The rule in most jurisdictions is that the violation by the driver of a motor or other vehicle, of a statute or ordinance, in failing to display the lights required by it, is negligence, not merely evidence on which the jury can find negligence. Thus the failure of plaintiff, in an automobile collision in the nighttime, to carry two white headlights, if it so contributed to the collision that the same would not have taken without it, was in itself enough to preclude recovery by plaintiff regardless of any other matter of negligence.”

Numerous decisions of the Courts of Appeal, following the rule established by the Supreme Court, hold that the violation of statutes and ordinances, having such purpose in view, constitutes negligence per se on the part of those who violate them. We cite a few of them. Firemen’s Ins. Co. v. Brook Tarpaulin Co., 3 La. App. 502; Roberts v. Eason, 6 La. App. 703; Thornhill v. Yellow Cab Co., 6 La. App. 787; Smith v. Palfrey, 7 La. App. 526, Statutes and ordinances which do not have such a purpose in view are not so construed. Lopes v. Sahuque, 114 La. 1005, 38 So. 810.

In this case, the parties had entered a curve. The law'provides on the subject of speed:

“Fifteen miles an hour in traversing or going around curves, or traversing a grade upon a highway, when the driver’s view is obstructed within- a- distance of 100 feet along the highway in the direction he is' proceeding.”

C. H. Hagen, asiced as to the speed of the Viator car at the .time in question, says:

"I presume we were going about 40 miles an hour and when Viator saw the approaching lights of the truck, he slowed down and at the time of the collision, was going about 25 or 30 miles per hour.”

As heretofore stated, this, is a gradual curve, and nothing in the evidence indicates that the view ahead on the part of the driver of defendant’s truck or on the part of Harold Viator or the other occupants of his car, while traversing this curve, did not extend along the curve, at the place of impact for a distance of 100 feet ahead, but it appears .therefrom that the end of the load of lumber sticking out beyond the side of the trailer which defendant’s truck was pulling was not visible as- it approaches, it was the projecting end of the lumber that struck and killed plaintiffs' son. This lumber was higher from the ground than the wheel, fender, radiator, and hood on the Viator car which was next to it, because the evidence is to the effect that the lumber passed over these parts of the Viator automobile, without coming in contact with them, but when the windshield was reached, it cut through it, bent down the steering wheel, and struck Harold Viator on his breast and head, killing him as well as the young couple who occupied the rumble seat behind him.

C. H. Hagen, who occupied the extreme right-hand side of the front seat of the Viator car, says:

“Q. Please state what part of the car in which you were riding was struck by the truck and describe as nearly as possible •the character of the damage done the car you occupied in the collision?
“A. The lumber on the truck nit our car' on the left side, right above the park light and did not scratch either fender, radiator or hood.
“Q. Was the fender and running board on the left hand side or the radiator of the car in which you were driving injured' in the collision?
“A. No.
“Q. Was it possible for you to see the lumber and skating rink material on the truck as the same approached you?
‘•'A. It ' was dark and the lights, of the front end of the truck did nor show the load behind it.
”Q. Will you state whether'in rounding the curve where the accident occurred; Harold Viator’s "car was kept to one side of the road and if SO' to which side?
“A. It was kept to the right side of the road.
‘‘Q. Did the truck' in approaching give you ample room for passing, or did it crowd you on your side of the road?
“A. It crowded us to our side of the road.”

The answer, “it crowded us to our side of the road,” taken in connection with the question asked, evidently means that the truck crowded them on their side of the road.

The witness Hagen no doubt felt an Interest in the result of the suit, friendly to the plaintiffs, but his. evidence is supported and seems worthy of credit. A witness named Beaullieu was at the place where the accident happened next morning at about 9 o’clock a. m.; says that the debris of the wreck was on the left-hand side of the road going east. By debris, he must have had reference to the pieces of glass which had come out of the windshield of the Viator car, because it was broken by the impact of the lumber and produced about all the debris that was found at the place. The side of the road on which these fragments fell was the side on which the impact took place, and it was on the left-hand side of the center of the road going east, or the right-hand side going west.

Paul Bernard, who was driving the truck, says he was. going up the incline of the curve at about ten miles an hour and within about 1% feet from -the ditch on the right side of the road going east, leaving about 20 feet open road to his left which the plaintiffs’ car could have used. He contends that the Viator car was being driven on the wrong side of the road. William Martin, with him on the truck, says about the same. Joe Berkley on the truck says that there was plenty of room on the left-hand side of the truck which plaintiffs’ car could have used, etc.

As these witnesses were in the service of the defendant, it is probable that they felt an interest in the result, friendly to the defense. The unquestioned statement of Mr. Beaullieu, that the debris was on the left-hand side of the center of the road going east, supported by the testimony of Hagen that the impact took place on the right-hand side of the center of the highway going west must have been believed by the lower court, else he would not have rendered the judgment that he did, and it is felt convincing by us and is accepted accordingly.

The time of night that these young people were on the road and other aspects of the case have received our consideration. But the late hour without some evidence to justify us in so holding cannot be a good reason for deciding that plaintiffs.’ car was being driven, at the time, at a reckless rate of speed and without, care. Some testimony was introduced, the purpose of which was to show that Harold Viator was intoxicated at the time, but the evideuce is not sufficient to justify such a conclusion. Having concluded • that the truck was- being driven at the time of the impact on the left-hand side of the center of the highway going east, and that plaintiffs’ car was at the same time being driven on the right side of the center going west, it remains to be found whether the occupants of plaintiffs’ car should have seen, and therefore must be regarded as having seen, the projecting lumber, coming toward them as they went toward it, in time to have avoided it and to have stopped if by doing so the collision with the lumber could have been avoided.

The occupants of the Viator car had the right to feel as they went forward that the side of the road on which they were was not made dangerous by something that they could not see, with reasonable care, looking ahead under the headlights of their car. But defendant by loading his trailer as he had done, and his driver and employee by driving it on the wrong side of the road, had produced just such a dan?,er. The situation produced was very similar to that which existed in the case Broussard v. Teche Transfer Co., 15 La. App. 439, 132 So. 136, recently decided by this court. It is our conclusion that the projecting lumber was practically invisible to the driver of plaintiffs’ car, until it was so close that its discovery and the impact took place about the same instant, and that, on the part of plaintiffs.’ son, it was unavoidable and made so by the fault and neglect of the defendant and his employee in the way stated.

The judgment appealed from is in our opinion correct.

Judgment affirmed. Defendant and appellant to pay the cost in both courts.

MOUTON, J„ recused.


text:
    No. 836
    First Circuit
    ST. CLAIR BOLIN v. R. A. CUYLER ET AL.
    (October 7, 1931. Opinion and Decree.)
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellant.
    -B. & M. Purser, of Amite, and Robt. L. A. Indest, of New Orleans, attorneys for defendants, appellees.
   ELLIOTT, J.

This is a suit brought by St. Clair Bolin, husband of Mrs. Bertha Bolin and owner of the automobile driven by her, which was destroyed in a collision with R. A. Cuyler; the injuries sustained by her being the subject of a separate suit.

The case was consolidated with that of Mrs. Bertha Bolin and tried as one, the same note of testimony serving for the decision of both.

Mr. Bolin brought suit against R. A. Cuyler and Louisiana Power & Light Company to recover of them, in solido, $1,000 on account of the loss of his car and $50 on account of medical expenses, due to the injuries received in the collision hy Mrs. Bolin. The lower court rejected his demand, and he has appealed.

The right of Bolin to recover depends upon the same law and facts which governed in the suit brought by Mrs. Bertha Bolin v. Cuyler, . this .day decided, 18 La. App. 138, 136 So. 779. In that case we held that Mrs. Bolin was at fault for the loss of the car she was driving, as well as for the injuries, she received in the collision. For .the reasons stated in that case the judgment of the lower court rejecting the demand of the plaintiff herein was correct.


author: JANVIER, J.

text:
    No. 13,907
    Orleans
    BETA XI CHAPTER OF BETA THETA PI v. CITY OF NEW ORLEANS ET AL.
    (October 19, 1931. Opinion and Decree.)
    (November 16, 1931. Rehearing Refused.)
    (January 1, 1932. Writ of Certiorari and Review Refused by Supreme Court.)

      St. Clair Adams, Sumter D. Marks, Jr., Delvaille H. Theard, H. G. McMahon, John R. Perez, A. A. de la Houssaye and Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for plaintiff, appellant.
    Michel Provosty, Henry B. Curtis, William C. Dufour and Rene A. Viosca, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Beta Xi chapter of Beta Theta Pi Fraternity seeks to exempt from state, parochial, and city taxation for the year 1928 the chapter house owned and used by it near the campus of Tulane University in New Orleans. The claim for exemption is based on section 4 of article 10 of the Constitution of the state of Louisiana for the year 1921, which section reads as follows:

“The following property, and no other, shall be exempt from taxation:
“All public property.
“Places of religious worship; rectories and parsonages belonging to religious denominations, and used as places of residence for ministers; places of burial; property devoted to charitable undertakings, including that of such organizations as lodges and clubs organized for charitable and fraternal purposes and practicing the same; schools and colleges; but the exemption shall extend only to property, and grounds thereunto appurtenant, used for the above mentioned purposes, and not leased for profit or income.”

The Beta Xi chapter of the fraternity is incorporated; it owns the property in question, and it is conceded that, in good faith and not for the purpose of evading taxation, it adopted on December 22, 1927, a charter amendment, showing that, among the objects and purposes for which it was incorporated, were the following:

“* * * The aid and assistance of students of Tulane University, whether members of the Beta Theta Pi Fraternity Or not, by the establishment of a Students’ Loan Fund from which loans, without interest, may be made to deserving students,who are unable to meet the necessary expenses of their college education; the relief of the poor and needy generally, by the distribution of funds and supplies at Christmas time, and on other appropriate occasions.”

The district court rendered judgment dismissing the suit, and the fraternity has appealed.

The evidence, there being no conflict therein, shows that, in addition to the usual fraternal functions performed by most Greek letter college fraternities, this particular organization has in the past several years, in accordance with the charter provisions referred to, performed altruistic services of benefit not only to its own members, but to others, and it is thus claimed that it is entitled to the exemption made available by the Constitution to those organizations created for fraternal and charitable purposes and practicing the same.

We are confronted by a disagreement of counsel as to the scope of the particular exemption referred to. Attorneys representing plaintiff suggest that it is contemplated that there shall be exempt all property owned and used for fraternal and charitable purposes, whereas those who champion the rights of the taxing authorities maintain that it is only property devoted to charitable undertakings which the lawmakers intended to relieve from the burdens of taxation, and that the language of the article not only can be so interpreted, but, in fact, admits of no other construction.

Opposing counsel agree that tax exemptions are not favored in the law and that, where language used by lawmakers admits of two interpretations, that one should be accepted which does not grant the exemption contended for.

“Exémptions from taxation are strictly construed, and those claiming the benefit of such exemptions must bring themselves clearly within the provisions of the law by which they are created.” Penick & Ford v. Ehret, 166 La. 1, 116 So. 572, 574.
“Exemptions from taxation are not favored. The theory of the law is that all property shall pay its just portion of the public burdens, and it is only in those cases where the property is put to some use calculated to minimize the expenses of government that public policy justifies an exemption.” People ex rel. Medical Society of Kings County v. Neff, 34 App. Div. 83, 63 N. Y. S. 1077, 1079.

Bearing in mind, then, the rule that exemption enactments should be interpreted and construed strictly against those who claim the exemption, let us analyze the constitutional article which is here involved.

It is immediately noted that six specific classes of property are exempted, as follows:

First. All public property.

Second. Places of religious worship.

Third. Rectories and parsonages belonging to religious denominations, and used as places of residence for ministers.

Fourth. Places of burial.

Fifth. Property devoted to charitable undertakings, including that of such organizations as lodges and clubs organized for charitable and fraternal purposes, and practicing the same.

Sixth. Schools and colleges.

After the words “All public property,” there appears a period. After each of the other specific exemption clauses, there appears a semicolon. In the fifth class, after the word “undertakings,” appears a . comma. It therefore appears to us from the punctuation that the lawmakers intended to say, and, in fact, did say, that in order that property other than that mentioned in the other classes should be exempt from taxation, it must be devoted to charitable undertakings. But it went further and said in effect that if the property be devoted to charitable undertakings it is exempt, even though it be owned by an organization not devoted exclusively to charity, but which includes in its object fraternal purposes.

We are well aware of the fact that it is not the function of the courts to look beyond the language of a statute to ascertain its meaning, unless that language is ambiguous, or leads to an absurd conclusion. As was said in United States v. Missouri Pacific R. Co., 278 U. S. 269, 49 S. Ct. 133, 136, 73 L. Ed. 322, “construction may not be substituted for legislation.” Here, however, we find no need to look beyond the letter of the law. We find that no absurd conclusion necessarily follows the reading thereof, as defendants contend for, but that, on the contrary, the meaning which we are urged to accept by plaintiff could have been better and more clearly expressed by the use of other words and phrases than those employed by the lawmaker. For instance, what would have been simpler, had the framers qf the Constitution so intended, than for them to have used the following language:

“Property devoted to charitable undertakings; property of such organizations as lodges and clubs, organized for charitable and' fraternal purposes and practicing the same.”

Had such simple language been used, the meaning would not have been in the,slightest degree ambiguous.

Furthermore, we particularly notice the use of the word “that”' immediately following the word "including.” “That” refers back to the word “property” in the preceding clause. The word “property” in the preceding clause is modified by the phrase “devoted to charitable undertakings.” If we substitute for the word “that” the other words for which it is used we find that the whole exemption will read as follows:

“All property devoted to charitable undertakings, including property devoted to charitable undertakings of such organizations as lodges and clubs organized for charitable and fraternal purposes and practicing the same.”

We, therefore, believe that it is not all property of .charitable and fraternal organizations which is exempt, but only such of their property as is devoted to charitable undertakings.

We approach the next question with considerable hesitation because we fear that we can find no definite rule by which we can determine just how much and just what kind of charity must be undertaken in order to entitle the claimant to exemption. Manifestly one can do charity only according to the resources at his command. It cannot be said that the amount expended shall determine the question, nor can the solution come from an ascertainment of the extent of the benefits received by those upon whom they are conferred.

That this fraternity is fulfilling to the extent of its ability its altruistic objects is and must be admitted, and, yet, a careful reading of the record leaves in our minds no doubt that the charitable features undertaken by the organization are, by comparison with its other undertakings and accomplishments, more or less insignificant. With the sincere hope that a recounting of the charitable accomplishments of the organization will not be understood as an attempt on our part to disparage its efforts, we set them forth . as they appear in the record, as follows:

First. A loan of $35 made to a member without the exaction of interest.

Second. Another- loan in process to another member to enable him to pay his initiation fees. (We do not see any reference to this second loan in the record, but it was conceded in oral argument that it was in process of completion, or had been completed.)

Third. The furnishing each year to poor and needy families of about ten Christmas baskets, costing approximately $5 each.

Fourth. The providing of rooms in the chapter house in which members may live while at college at a price possibly slightly below what they would he required to pay elsewhere.

Charity is a very broad term. In one sense a person does charity who speaks a kind word to another. One who assists the poor and the needy by the donating of food and clothing is unquestionably doing charity. The problem which confronts us is not are such acts charitable, but are they such as were within the contemplation of the lawmakers when they used the words "charitable undertakings.” In almost all cases in which there were under consideration exemptions claimed by organizations doing similar work it has been held that in the contemplation of the lawmakers the word “charity” was intended to include only such works as tended to relieve the public authorities to some extent from the burden of taking care of and providing for the poor, the sick and the needy.

Only on the theory that the charitable acts alleviate the burdens of government can exemptions of property devoted to charitable purposes be justified. As typical examples of language used in similar cases, we cite the following:

"Exemptions from the burdens of taxation, which the great masses of the people are called upon to sustain, as a requisite of civil government, are only favored in legislation, upon the theory that the concession is due as quid pro quo for the performance of a service essentially public, and which the state thereby is relieved pro tanto from the necessity of performing, such as works of charity and education freely and charitably bestowed, as evidenced by the legislation under consideration. Without that concurring prerequisite, an exemption becomes essentially a gift of public funds, at the expense of the taxpayer, and indefensible both under our public policy of equal taxation, and our constitutional safeguard against illegal taxation.” Carteret Academy v. State Board of Taxes and Assessments, 102 N. J. Law, 525, 133 A. 886, 887, affirmed 104 N. J. Law, 165, 138 A. 919.
"The reason for exempting certain property from public taxes arises from the fact that such property, in its use for charitable purposes, tends to lessen the burdens of government and to affect the general welfare of the public. It is not urged that a college fraternity is a public charity, but the contention is that it is a beneficent and charitable organization. We are of the 'opinion, however, that the beneficent and charitable organizations contemplated in the Revenue Act are those which tend, in their operation, to lessen the burdens of government. While the appellant exercises a good influence on the student body and relieves the university by providing rooming facilities for men, we are of the opinion that its property does not come within, the provisions and intent of the Revenue Act herein referred to.” People ex rel. Carr v. Alpha Pi, 326 Ill. 573, 158 N. E. 213, 215, 54 A. L. R. 1376.

It is argued that we are not authorized to delve into the intention of the lawmakers with reference to the meaning to be given to the word “charity.” It is said that if there is no ambiguity in the enactment we are not privileged to interpret the language thereof nor to place thereon any other construction than that which flows from the common meaning of the words used; that the term “charity” includes all voluntary acts by which others are benefited, and that if we give to it this meaning the altruistic acts of plaintiff must be included. It is true that where statutes are clear and unambiguous no interpretation thereof may be attempted by the courts. .The letter may not he abandoned in an effort to pursue the spirit. But if, as a consequence of following the letter of the law, an absurd result is reached, then it is the duty of courts to seek out the motive which prompted the enactment. In Church of the Holy Trinity v. U. S., 143 U. S. 472, 12 S. Ct. 511, 512, 36 L. Ed. 226, the Supreme Court of the United States said:

"All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.”

In fact, the Louisiana Civil Code provides, in article 18, that:

“The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.”

Were the view of counsel for plaintiff to prevail it might in other cases lead to the absurd result that clubs and other private organizations, by undertaking moderate charitable programs costing thejn possibly only a hundred dollars or so, might relieve themselves from the payment of taxes involving the expenditure of many times as much. It is conceded that in the instant case plaintiff was in perfect good-faith and has devoted itself to the under-, takings mentioned without any thought of adopting them into its program for the purpose of obtaining tax exemption, but if it is to be exempted, nothing would prevent any similar organization, or any other organization of private persons organized for their own selfish purposes, from undertaking such moderate charitable works and from receiving the benefits of tax exemption which would necessarily follow.

But, even if it be conceded that the plaintiffs are engaged in charitable undertakings within the contemplation of the constitutional article, it does not necessarily follow that the exemption must be granted, for it (the exemption) results, not from the character of the property owner, but solely from the use to which the property is put. The exemption is granted not to fraternal and charitable organizations, -but to “property devoted to charitable undertakings,” and we cannot accept the view that the property in this case is so devoted.

If the fraternity owned its chapter house and also another building, and if it operated the other building as a rooming house for the poor, or as a nutrition center for the needy, or for the sick, then the exemption would be applicable to the other building because that building, owned by a fraternal and charitable organization, could well be said to be devoted to charitable undertakings. But the fact that from the chapter house might emanate the plans and rules for the operation of the other buildings would not, in our judgment, give to the chapter house character as property devoted to a charitable undertaking.

As we have said, we find ourselves unable to state any fixed rule by which it may be determined when property is so devoted as to entitle it to the exemption claimed. As was said in People ex rel. Carr v. Alpha Pi, supra:

“In determining whether property is exempt from taxation, the statute providing for exemptions is to be construed strictly, and doubtful considerations are to be resolved against the exemptions. Whether property is to be exempt depends upon the facts pertaining to its use, as shown in each individual case, and the burden is on the party claiming the exemption provided by the statute.”

We are of the opinion that however the property may be owned, whether by an individual, or by a charitable organization, or by one both charitable and fraternal, the character of work undertaken must include, in a substantial way and as one of the principal objects of the organization, the doing of such work as relieves the commonwealth of some of its burdens; and that the property itself, and not only the organization, must be devoted to such undertakings.

That other organizations, whose objects may or may not be entirely charitable, have been granted exemption by taxing authorities under this or similar statutes, cannot be taken into consideration because, in the absence of ambiguity, we are not permitted to apply the doctrine of contemporary construction. Because one property owner has been granted an exemption not actually due does not give to all others of similar character the right to claim exemption.

The college fraternity, as it is conducted today and as the record discloses, is an influence for exceeding good in college circles and in surrounding communities. The charitable works undertaken by this and other similar organizations are praiseworthy in the extreme. We are in thorough accord with the expressions used in People ex rel. Carr v. Alpha Pi, supra, in which the court said:

“Appellant’s property is not held, and the chapter is not operated, for pecuniary profit. The influence of appellant on those affected thereby is of wholesome benefit to them. That the purposes qf such organizations in university life under proper direction assist their membership in establishing themselves in life and to come under the influence of education cannot be doubted. The practice of appellant of extending credit to those unable to otherwise complete their college courses is of a highly commendable character. These facts, however, do not constitute the appellant an institution of public charity nor a beneficent and charitable organization.”

For the reasons given the judgment appealed from is affirmed and plaintiff’s suit is dismissed at its cost.


author: LeBLANC, J.

text:
    No. 847
    First Circuit
    McDANIEL v. ROSELAND BOX CO., INC.
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)

      Mat J. Allen, of Amite, attorney for plaintiff, appellant.
    Ellis, Ellis & Ellis, of Amite, attorneys for defendant, appellee.
   LeBLANC, J.

Plaintiff claims that on August 28, 1930, while working for the defendant as a general carpenter, he fell and injured his right hip, and that, although he was able to continue his work until September 3, the following, he was on that day obliged to give up, and was unable to do work of any character for a period of eight weeks. He also claims that on September 2, 1930, while still working after receiving the hip injury, he was driving a drift pin with a maul, and in doing so bruised his left hand, from which he developed an infection which ultimately caused the permanent total loss of its use. He accordingly asks for compensation under the Employers’ Liability Act for a period of 200 weeks; the amount being based on what was his average weekly wage.

The defense is a denial that either injury complained of was received while plaintiff was engaged in the performance of his work as alleged.

Prom a judgment rejecting his demand and dismissing his. suit, plaintiff appealed. His counsel here asks, in the event we reach the conclusion that plaintiff has failed to make out a case on the testimony submitted in the record, that we remand the case to the district court for the purpose of having it hear the testimony of two witnesses, which could not be procured despite due effort and diligence on his part before the trial of the case. He had submitted a motion to have the case re-opened upon supplying an affidavit from one of these witnesses, but the court does not seem to have passed on that motion. It had, however, previously denied a motion for a new trial.

Regarding the alleged injury to plaintiff’s right hip, we readily conclude from the evidence we have before us that it was not as serious as he would make it appear, if, indeed, he was injured at all. The testimony of Dr. Galloway shows that he was treated for an attack of lumbago, and we are inclined to believe that that was the real cause of this particular complaint. The additional testimony which his counsel would have the court consider on a remand of the case concerns, the hand injury only, and it is this injury which presents the real issue in the case.

Plaintiff’s testimony as to how he suffered a bruise on his left hand while driving a drift pin with a maul is not supported by any other testimony in the record. That it was; bruised in some manner is shown by the testimony of Dr. Parmer, who says that he treated it for an infection which in his opinion was caused from a bruise, as all the signs of a bruise were apparent, decayed and broken-down tissue, swelling and darkness. He, and Dr. Mc-Clendon as well, testify that there is permanent disability in the hand from use for manual labor. As against this, however, we find the testimony of plaintiff’s foreman, Mr. Arrowsmith, and that of Dr. Galloway to the effect that plaintiff never did complain to. either of them about his hand having been injured. Under the circumstances we do not .think that plaintiff has proved with that legal certainty which the law requires that, his. injury arose out of and in the course of his employment.

In the condition in which the record appears before us, however, especially with regard to the affidavit annexed to plaintiff’s motion to have the case re-opened, we find ourselves unable to pronounce definitely on the cause of plaintiff’s injury to his hand. Under the circumstances, we think the needs of justice will be better served by remanding the case to the lower court for the purpose of hearing the testimony of the two witnesses named in the affidavits annexed to plaintiff’s motions and such other additional evidence as may tend to prove what are the true facts in the case. This procedure is warranted under the provisions of article 906 of the Code of Practice. In connection therewith ee'e Rhodes v. Cooper, 113 La. 600, 37 So. 527, In re Tucker, 153 La. 47, 95 So. 396. We believe that the provisions of the law here invoked apply with stronger force in compensation suits like this, in which the law governing their trial prescribes that “the judge shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided.*’ Goree v. Atlantic Oil Producing Co., 2 La. App. 558; Ward v. Standard Lumber Co., 3 La. App. 187.

For the reasons stated, it is therefore ordered, adjudged, and decreed that this case be remanded to the lower court for the purpose of having that court hear and consider the testimony of the two witnesses referred to in the affidavits annexed to plaintiff’s motions herein, and such other additional testimony and evidence as it may in its opinion deem legal and proper for its consideration and decision of the issue as to how plaintiff sustained the injury to his hand.


author: LeBLANC, J. ELLIOTT, J.,

text:
    No. 837
    First Circuit
    MRS. BERTHA BOLIN v. R. A. CUYLER ET AL.
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellant.
    B. & M. Purser, of Amite and Robert L. A. Indest, of New Orleans, attorneys for defendants, appellees.
   LeBLANC, J.

This suit arises out of an automobile collision which took place on the Hammond-Amite (paved highway, at a point about a mile and a half or two miles north of Independence, at about 3 o’clock of the afternoon of April 21, 1930. The collision was between a Hudson sedan belonging to St. Clair Bolin,' which was being driven at the time by his wife, Mrs. Bertha Bolin, plaintiff herein, and an Oldsmobile sedan, belonging to and being driven by R. A. Cuyler, one of the defendants. On an allegation of fact that Cuyler was an employee of the Louisiana Power and Light Company' and was, at the time of the accident on a mission in the interest of his employer, that company was also made a party defendant to this suit of Mrs. Bertha Bolin to recover the sum of $2,000 for damages for personal injuries.

Exceptions of misjoinder of parties defendant on the part of both defendants, and one of no cause of action on the part of the defendant Louisiana Power and Light Company were filed and submitted in the lower court and were all overruled. Answers were then filed by both defendants. Cuyler denies the negligence he is charged with in driving his car at a high and excessive rate of speed and thus causing the accident, and he alleges that it was caused solely through the carelessness of Mrs. Bolin, who in attempting to pass a car which was traveling ahead of her, lost control of her car, swerved to his side of the road and ran into him. He reconvenes in his answer and prays for judgment against her in the sum of $525 for damages to his automobile. He admits that he was in the employ of the Louisiana Power and Light Company, but alleges that he was driving his own automobile and was not at the time acting within the scope of his employment. This latter company for answer, denies liability and makes further denials and general averments, following very much those made by Cuyler. It also admits his employment by them but denies that he was at the time^ acting within its scope.

The trial on the merits resulted in a judgment rejecting the plaintiff’s demand against both defendants and also dismissing the demand of Cuyler in reconvention. Plaintiff appealed and Cuyler has answered the appeal praying that the judgment be affirmed in so far as it rejected plaintiff’s demand, but that it be reversed in so far as it rejected his claim in reconvention and that he recover judgment for the amount asked -by him.

We find no reference to the exceptions which were submitted and overruled in the lower court. We take it that they have been abandoned and will therefore not consider them.

-A careful consideration of the record has led us to the conclusion that this accident was caused by Mrs. Bolin losing control over the driving of her car after she had attempted to pass ahead of a Ford touring car which was in front of her, and then, on realizing that she could not do so before meeting the Cuyler car which was coming towards her, she tried to get back again of the Ford, became confused after she struck the latter car a glancing blow on the fender, and ran into the Cuyler automobile.

These of the facts are not seriously disputed: Cuyler was driving north. Driving south at the same time were a man named Bahm, in the Ford touring car referred to, which was loaded with strawberries; a man named Kolb, alone in a Plymouth car, and Mrs. Bolin, in the Hudson sedan. Bahm was driving very slowly on his right-hand side of the road. Kolb, who was just back of him, passed ahead of Bahm without difficulty, and following closely behind, came Mrs. Bolin, who started to do the same. She evidently saw the Cuyler car approaching and became hesitant as to whether she should continue in her effort to pass the Ford, before meeting Cuyler. She started to go, even went as far as the Ford’s left rear fender, struck it a glancing blow, bending it slightly, then changed her mind about going on, tried to drop back of the Ford again, and that jis when the collision occurred. The disputed point arises at this moment. Did she run into Cuyler or did the latter run across the paved road and run into her car?

It appears to be pretty well established that Cuyler, when he saw the confusion Mrs. Bolin apparently was in, ran his car as far to his right-hand side of the road as he could, tq the extent even of placing the two right side wheels off of the pavement onto the soft dirt shoulder of the road. Bahm says that when Cuyler passed him, that was the position of his car as relates to the pavement and the shoulder of the road. That, we must bear in mind, was just a flash before the collision. It is also borne out by the testimony of the witness Felder, who arrived at the scene of the accident within three or four minutes after it happened, and who examined the tracks made by the wheels, that the two right wheels of the Cuyler car never left the shoulder part of the road. If that be accepted as a proven physical fact, we must conclude that the Cuyler car did not run across the pavement and strike the Bolin automobile, as it is contended it did. Such fact rather is corroborative of his testimony that it was Mrs. Bolin who swerved across the road and ran into him. It is difficult for us to accept Kolb’s testimony which supports Mrs. Bolin’s version, as we think it was almost impossible for him to have visualized all he says he did by looking through the small rear vision mirror in the front of his car. Neither are we very much impressed by the testimony of the small negro boy, Joe Love, who says that the Cuyler car ran into the other.

Counsel for the plaintiff seem to rely in a large measure on the facts as to the respective damage to the cars to show that the Hudson was run into by the Oldsmobile. Aside from the physical evidence showing that both cars were mostly damaged on their left sides, it is always difficult, we believe, to account for the way in which automobiles are damaged in accidents of this kind. The sudden swerving of a car or its skidding on an instant application of the brakes in an emergency, may produce an entirely different result from that which might have been expected. The physical facts, if anything, favor the defendant Cuyler in this case.

Our view of the matter, as already stated, is that Mrs. Bolin lost control of her steering wheel when she realized of a sudden that she could not get by the Ford touring car before meeting Cuyler. When she lightly struck the fender of the Ford car, she became more confused than ever,, was very nervous as she herself admits, and does not remember much what happened afterwards.

If Mrs. Bolin’s negligence was the sole and only cause of the accident, it would be difficult to deny the plaintiff Cuyler his demand in reconvention. The lower court satisfied itself by simply dismissing it for lack of evidence. In the reasons assigned for judgment against the plaintiff, the court seems to absolve Cuyler from all negligence. If by lack of evidence the court meant that Cuyler had not proved his damages, we believe that it was in error, as there is no doubt that his automobile was a total wreck after the accident, for the salvage of which he obtained the sum of $75. He proved that it had an insurable value of $600, for which, amount he carried a policy of insurance on it. He arrived at the amount of damages which he claimed by taking this value into consideration and deducting therefrom the $75 which he received for the wreck. This seems to us to be a fair way by which to compute his damage, and his testimony on this point is not questioned or contradicted. We therefore fix his damage at the sum asked for by him, $525.

For the foregoing reasons, it is ordered, adjudged, and decreed that the judgment of the lower court, to the extent that it rejected the plaintiff’s demand as against both defendants, be and the same is hereby affirmed, but that the same, in so far as it rejected the reconventional demand of the defendant R. A. Cuyler be, and it is hereby avoided, annulled, and reversed, and it is now ordered that there be judgment in favor of the said defendant R. A. Cuyler, plaintiff in reconvention, and against Mrs. Bertha Bolin, plaintiff and defendant in reconvention, in the full and entire sum of $525 with legal interest from date of judicial demand, and all costs of this proceeding.

ELLIOTT, J.,

dissenting. It seems to me to be the proper inference from the action of R. A. Cuyler in leaving the pavement and getting on the shoulder of the road while Kolb was passing him, that he had already noticed Mrs. Bolin’s movement, the purpose of which was to pass the Bahm car in front of her as Kolb had done, and her movement was a threatening obvious danger, calling bn him for “due regard to the traffic, surface width of the highway, and any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb, or property of any person. He should have then and there checked his speed and gotten his car under control instead of proceeding at between 35 and 45 miles an hour in the face of the confronting situation. Getting on the shoulder of the road was to no purpose. What he needed to do was to check his speed and stop if need be, while .there was still distance and time in which to do so. The distance at the time he turned off the pavement from where he was to Mrs. Bolin cannot be definitely stated, but evidently it was 75 feet or more and prompt action on his part would have avoided a collision. Cuyler, defendant, says he did óheck his. speed and had nearly stopped at the moment of the impact, but that cannot be the ijase. Mrs. Bolin was not driving faster than Bahm and he was driving at about 20 miles an hour. Cuyler’s car was an Oldsmobile sedan, almost as good as new and that of Mrs. Bolin was a Hudson sedan almost as good as new, and the impact was such that both cars were thereby rendered almost worthless. The evidence shows that Cuyler struck Mrs. Bolin before she could get back to. her side of the road and the velocity which produced the destruction accomplished, undoubtedly came from the Cuyler car. Cuyler appears to me to have been at fault for not timely checking or stopping, if necessary, in the presence of an obvious danger before it was reached. His fault contributed to bring about the collision, so he should, I think, bear the loss of his own car, just as Mrs. Bolin bears her own loss. I think the judgment appealed from is correct and that it should be affirmed.