text:
    No. 3685
    Second Circuit
    FIDELITY UNION CASUALTY CO., INC., v. CARPENTER
    (December 31, 1929. Opinion and Decree.)

      McHenry, Montgomery, Lamkin and Lester of Monroe, attorneys for plaintiff, appellant.
    Stubb and Thompson of Monroe, attorneys for defendant, appellee.
   ODOM, J.

Lamar Gordy was employed by the Dixie Roofing Company, and while engaged in performing services for which he was employed, was injured in an automobile collision between a car on which he was riding and one owned by the defendant, Carpenter. A dispute arose between Gordy and his employer as to whether he was entitled to compensation under the Workmen’s Compensation laws, and in a suit which followed he was awarded compensation which, together with all expenses allowed by the court, amounted to $1,033.05. The plaintiff in the present suit was the insurer of the Dixie Roofing Company, and as such was called upon to pay and did pay the above amount on account of the accidental injury to Gordy.

The present suit is by the insurer to recover said amount from Carpenter, a third person, by whose fault, it is alleged, Gordy was injured. Plaintiff in its petition sets out all the facts and circumstances connected with the case, and especially alleged that the collision between defendant’s truck and the automobile on which Gordy was riding was due solely to the fault and negligence of the truck driver.

Defendant filed an exception of no cause and no right of action which was overruled. Reserving his rights under the exception, defendant answered denying any negligence on the part of his driver, and alleged that Gordy was himself guilty of negligence which so contributed to the accident' as to bar recovery. Plaintiff’s demands were rejected by the district court, and it appealed.

ON EXCEPTION OP NO CAUSE OP ACTION

The exception of no cause and no right of action was properly overruled. It is not contended that plaintiff’s allegations concerning the injury and the causes thereof are not sufficient and ample to support an action for damages. But counsel for defendant say in brief that plaintiff “does not sue as legal subrogee of the Dixie Roofing Company nor as conventional subrogee of Dixie Roofing Company or Lamar Gordy, nor has it brought itself within the provisions of sec. 7, Act 247 of 1920.”

Plaintiff alleged that it was the insurer of the Dixie Roofing Company and that as such had paid out the sum sued for on account. of the injuries to Gordy. Section 7, Act No. 247 of 1920, p. 468, provides that in case an employee is injured under circumstances creating liability on the part of some person other than the employer to pay damages, the injured employee may claim compensation from his employer, and the payment of such compensation by the employer shall not affect the injured employee’s right of action against such third person for damages nor be regarded as establishing the measure of damages for such injury, and that any employer having paid compensation under the act may bring suit against such third person to recover any amount which he has paid as compensation.

But the above act in specific terms gives no right of action to the insurer which has paid the compensation for the employer to recover the amount so paid from the third person causing the injury. But Act No. 85 of 1926, which amends the above-cited act, does in specific terms subrogate the insurer who has paid compensation to all the rights and actions to which the employer is entitled. Section 23 of the latter act (page 124) reads as follows: “The insurer is hereby subrogated to all the rights and actions which the employer is entitled to under this Act.”

Being legally subrogated to the rights and actions of the employer, the insurer can bring its suit under the statute as legal subrogee or under article 2315 of the Civil Code. London Guaranty & Accident Insurance Company v. V. S. & P. Railway Company, 153 La. 287, 95 So. 771.

Clearly, therefore, it is unnecessary for the insurer to obtain a conventional subrogation from either the employer or employee, nor is it necessary for the insurer in bringing his suit to specifically state in its complaint whether it sues as legal subrogee or whether it claims under article 2315 of the Code. All that is necessary is for it to set out facts sufficient to show that it is entitled to recover under the law and this plaintiff has done.

But counsel contend that plaintiff has not brought itself within the terms of section 7, Act No. 247 of 1920, p. 468, with reference to notice to the injured employee of bringing the suit. The present suit was filed on June -28, 1928. Later, and before answer was filed, counsel for plaintiff wrote the attorneys for Lamar- Gordy, the injured employee, that they had filed suit and named the court in which it was filed, and asked to be advised if Gordy desired to intervene as party plaintiff. Whereupon counsel for Gordy wrote the attorneys for plaintiff that their client did not desire to intervene in the suit. This was a sufficient compliance with the statute as to notice.

ON THE MERITS

Plaintiff’s right to recover against Carpenter depends on whether Lamar Gordy, the injured employee, could have recovered against him if he had brought suit for damages.

The Dixie Roofing Company, the employer of Gordy, has its establishment in the city of Monroe. The company had a contract to do some work at Oak Grove, in West Carroll parish, and on the morning of July 19, 1927, Gordy and other employees reported for duty, and were instructed to prepare for a trip to Oak Grove where they would be detained for several days. Gordy and the others, it seems, lived in West Monroe, where they had to go for their clothes to carry on the trip. The four of them, the two Meredith boys, Gordy, and a colored man named Jenkins, used a Dodge coupe belonging to the employer to go to West Monroe. There was not room in the coupe for all four. The Meredith boys rode in the car, Gordy rode on the right-hand running board, and the colored man on the fender, and Jack Meredith did the driving. When they reached West Monroe, they ran into Wood street and proceeded west on the right-hand side until they reached a point some 25 or 30 feet from the intersection of that street with Trenton avenue, where defendant’s truck was parked up next to the curb on the right-hand side, at an angle of about 45 degrees, fronting northwest. When? the Dodge coupe on which Gordy was riding reached a point in the street opposite from where the truck was parked, defendant’s driver backed the truck into the street, the rear end of it coming in contact with Gordy, who, as stated, was standing on the running board, and he was injured. It is plaintiff’s contention that defendant’s driver suddenly and rapidly backed the truck into the street, in the way of the Dodge, without looking and without giving any signal or warning of his intended move, which, it is contended, was gross negligence. Defendant contends that the truck driver was guilty of no negligence and charges negligence on the part of Gordy.

It is perfectly clear that if Gordy had been inside the car, instead of on the running board, he would not have been injured. The district judge was of the opinion that it is negligence per se for one to ride on the running board of an automobile, and therefore, conceding that the truck driver was guilty of negligence; held that Gordy could not recover on account of his own contributory negligence. At the time of the accident, there was no, ordinance of the city of'West Monroe nor any statute of the state making it unlawful for one to ride on the running board of an automobile, and it has been repeatedly held in other jurisdictions that it is not negligence per se for one to ride in that manner. Blashfield’s Cyclopedia of Automobile Law, vol. 4, p. 134; Hamilton v. Harrison, 126 Kan. 188, 268 P. 119; Anderson v. Detroit Motor Bus Co., 239 Mich. 390, 214 N. W. 172; Rose v. Carter, 45 R. I. 150, 120 At. 581; Gavin v. Cohen, 136 At. 330, 5 N. J. Misc. R. 296; Koss v. A. Geo. Shultz Co., 195 Wis. 243, 218 N. W. 175.

In all of the above cases, it was held that it is not negligence per se for one to ride on the running board of an automobile, but that one may be negligent by assuming a dangerous position thereon, and that the question whether one so riding is negligent depends upon circumstances, and that the question of negligence is one for the jury or the trial court.

It is conceivable that one may take such a position on a running board of a moving automobile as to be reasonably safe from outside traffic, yet if he permits his body to extend over and beyond the outer edges of the running board and the fenders, he exposes himself to the added risk of being struck by other cars. In other words, the position may or may not be dangerous, and the question of negligence in each case must be determined according to the circumstances. The facts in this case are before us, and we think Gordy was riding in a negligent manner. He was standing on the running hoard holding to the top of the car with his left hand, his body swerving, we think, unnecessarily too far out. He says the upper part of his body was inside the car, but the testimony of other witnesses is to the contrary. A reading of all the testimony convinces us that if Gordy had not been so far out over the edge, he would not have been injured. Counsel say he was not negligent in the position which he took on the outside of the car, but he was negligent in not keeping a proper lookout and in not taking the proper precautions for his own safety. The car on which he was riding was proceeding west on Wood street on the right-hand side. Defendant’s truck was parked on that side with its front wheels up against the curb standing at an angle of about 45 degrees, headed northwest, so that in order to move at all, it had to back out into the street. The driver of the truck started his motor and backed very slowly, about three to five miles an hour, a distance of something like five to seven feet, into the street, just as the Dodge on which Gordy was riding reached that point, and the back end of the truck collided with Gordy’s body. The truck driver had made two previous attempts to back from the curb, but, discovering other cars approaching, had let the truck go back to the curb. Gordy was on the outside of the Dodge and in a position to see, if he had looked, each of these movements in ample time to warn the driver of the Dodge that the truck was about to enter the street. It was his duty to look and to warn the driver. He had taken a dangerous (position on the car which made it necessary for him to take extra precautions to guard against just such a contingency. He was not a passenger for hire on the car, nor was he an invited guest, and was not absolved from all duty, under the circumstances, to take some precautions for his own safety. He and the others were on a joint mission to get their clothes preparatory to making the trip to West Carroll parish. They were using an automobile belonging to their employer, which, so far as the testimony discloses, was not turned over to any one in particular. The four of them took possession of it and used it, and though Jack Meredith was doing the driving, it appears that any one of the others had as much right to control it as did the driver himself. Gordy and the driver of the Dodge were both guilty of negligence in failing to observe the parked truck ahead of them and its movements. The street to the left was open, and if the Dodge had swerved as much as 6 or 12 inches at most, there would have been no collision. They were proceeding along the street too close to the rear end of the truck and without observing it. “Ordinarily, that cars parked along the curb of a street may at any time turn into it, is a contingency to be anticipated, and it is the duty of every motorist to keep a proper lookout and use care to have their cars under such control as to avoid collision in such an event.” Blashfield’s Cyclopedia of Automobile Law, vol. 1, p. 564.

The truck driver was guilty of negligence, in that he did not sound his horn before starting the truck, as is required by the city ordinance, but we think his failure to sound his horn did not contribute to the accident, for it is doubtful if the occupants of the Dodge would have heard it, and if they had, that -they would have paid any attention to it; this being a public and much frequented street by automobiles. Aside from his failure to sound his horn, the truck driver proceeded with due caution. He looked back b.efore starting and proceeded — not suddenly, but very slowly, and only five or six feet into the street. His negligence was slight and not the contributing cause of the accident.

Our conclusion is, and we hold, that even though the truck driver was guilty of some degree of negligence, Gordy could not have recovered on account of his own contributory negligence.

The judgment appealed from is correct, and is accordingly affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J-.

license: Public Domain

text:
    No. 11,472
    Orleans
    WIMPRENNE v. JOUTY
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Edrington and Carmouche of New Orleans, attorneys for plaintiff, appellee.
    J. V. Chenet of Mt. Airy, attorney for defendant, appellant.
   WESTERFIELD, J-.

Odelia Wimprenne, widow of Francois Jouty, brings this suit against the executor of the succession of Francois Jouty, seeking recognition as a widow in necessitous circumstances, and as such entitled to the marital fourth of the succession of her late husband, Francois Jouty, under the provisions of article 2382, Rev. Civ. Code, as amended by Act No. 113 of 1926.

The trial court rendered judgment in plaintiff’s favor, and defendant has appealed.

To entitle a wife to the marital fourth under the codal article relied upon, three circumstances must concur: First, a valid marriage; second, the husband must have died rich; and, third, the surviving spouse must be in necessitous circumstances at the time of her husband’s death. The claim of the plaintiff is resisted by defendant, who denies that there was a marriage in the sense contemplated by law, that the husband died rich, or that the widow was left in necessitous circumstances.

Plaintiff and her late husband were residents of the parish of St. John the Baptist, and lived next door to each other for a number of years. ' On December 30, 1920, they were married by a justice of the peace. Each of the contracting parties at the time of their marriage was approaching 80 years of age; the record is not clear as to their exact age. The marriage was not a success. In the words -of counsel: ■

“Fifteen or 22 days after marriage, that is, at a time when the honeymoon usually is spreading its genial rays, Mrs. Odelia Jouty, with a changed heart, quietly, politely brought back to her husband’s house his clothes, books, his Courrier Des Etats Unis, and without notice to her husband left for the City of New Orleans, where she remained 15 days, and then returned home. They never lived together again. Her sensible and sensitive old husband understood that her departure from home, under the circumstances and without notice to him, was a polite way to get rid of him, and her whole conduct thereafter showed that his conclusion was right.”

The age of the bride and groom and the desertion of the groom by the bride and, her subsequent failure to be present at the demise of her aged husband are pointed to by defendant’s counsel and mainly relied upon, although the other grounds of attack are not abandoned, as defeating her right to the marital fourth which 'she claims.

Defendant’s able counsel has reviewed the genesis of this article of our Code in a most interesting way. We are reminded of the fact that the marital fourth originated in the Novelle of Justinian, was incorporated in the Partidas, where it remained as a written law of the province of Louisiana during forty years, under the Spanish domination, and from which source it was adopted as a part of our codal law. The statement was made, in argument, that its appearance in the Justinian Code was due to the insistence of Justinian’s wife, Theodora, whose sole purpose is said to have been the protection of the worthy members of her sex, who, after a dutiful discharge of their conjugal obligations, found themselves in destitution on the death of their husbands, after having enjoyed a life of ease, during the existence of their connubial relations. We are referred to Merlin’s Repertoire de Jurisprudence, Edition of 1817, Volume 26, page 176, ■where the author in speaking of this provision of law said:

“What is the purpose of this law?” “To prevent that a wife who has been chosen through love and whose dowry was her merit from having her condition suddenly changed and who, after having enjoyed the luxury or at least the comforts of her husband’s home, does not totally fall into poverty by his death, and does not drag into the dust the name and the quality of a spouse.” “It is the sense which all interpreters have placed upon this Novelle.”

Further reference is made to this author, and counsel quotes the following from page 184 of the same volume:

“In this respect, in addition to the poverty of the wife, the Novelles 53 and 117 require two conditions to enable her to deserve the fourth of the succession of her husband: (1) That she was freely chosen for his wife through pure tenderness and in view of an honest marriage; (2) that she had always lived with her husband.”

“From which it is easy to perceive that the object of the legislator has been to recognize the devotion of a wife for her husband and to conserve the dignity- of marriage.”

“It seemed equitable to Justinian that the one that love or virtue had raised to the rank of spouse, who had lived in a certain luxury during the life of husband and shared with him all of the burdens and all the cares of marriage, did not suddenly fall in misery by the death of a man,' who had forgotten her tenderness or ignored his obligations.”

We are also referred to Pickens v. Gillam, 43 La. Ann. 352, 8 So. 928, where the text of Merlin’s work is quoted with approval and to the case of Armstrong v. Steeber, curator, 3 La. Ann. 713, where the following language is used:

“* * * Before she (the wife) can recover, she must show affirmatively that her husband died rich, and that she was left, by his demise, in necessitous circumstances. The evidence of the first of these facts is not satisfactory, and the second is disprove'd. She had left her husband several years before his death, to abandon herself to the life of profligacy congenial to her. She did not go near him in his last illness, and suffered him to die, uncared for and alone. Her situation was no more affected by his death than that of other abandoned women in this city. He did not, therefore, leave her in necessitous circumstances within the meaning of the article of the Code.”

See, also, Succession of Rogge, 50 La. Ann. 1228, 23 So. 933, and Richard v. Lazard, 108 La. 549, 32 So. 559, to the same effect.

Counsel’s argument is undoubtedly supported by the authorities upon which he relies, but unfortunately for him the law in this state no longer makes any distinction between the dutiful, affectionate, and deserving widow and one who fails to exhibit those virtues. We are not at liberty to follow the law as it formerly existed nor indulge in any sentimental observation upon the beatific state of the ideal conjugal relation, nor give expression to any animadversions upon the marriage of individuals both of whom are approaching dissolution. Certain objections occur to us and many disadvantages and disabilities are evident in a marriage like that we are considering here, and perhaps, upon sentimental consideration, or as a matter of simple justice, an 80 year old wife, who would endure but 15 days of marriage with her ailing and aged husband should not be entitled to participate in his succession, but our Supreme Court does not recognize these disqualifications as fatal to the wife’s claim, whatever may have been the former jurisprudence in this state.

In the case of Veillon v. Lafleur’s Estate, 162 La. 214, 110 So. 326, 329, where the court was considering article 3252 creating a preferential claim of $1,000 in favor of a widow and minor heirs in necessitous' circumstances, it was said:

“Civ. Code, art. 2382, granting the marital portion to the surviving spouse in necessitous circumstances, and Civ. Code. art. 3252, creating a preferential claim of $1,000 in favor of the widow and minor heirs in necessitous circumstances, are laws in pari materia, and there is a line of jurisprudence to the effect that the wife contemplated by the codal articles is a wife in fact and not merely a wife in name. Armstrong v. Steeber, 3 La. Ann. 713; Pickens v. Gillam, 43 La. Ann. 350, 8 So. 928; Succession of Rogge, 50 La. Ann. 1220, 23 So. 933; Richard v. Lazard, 108 La. 543, 32 So. 559. Per contra, there is another line of cases rejecting the doctrine of those decisions, and holding that under the plain provisions of the Code no condition whatever is attached to the right of the necessitous husband or wife to claim the marital portion or of the necessitous wife to claim the so-called widow’s homestead. Succession of Marc, 29 La. Ann. 413; Sabalot v. Populus, 31 La. Ann. 855; Succession of Pelluat, 127 La. 878, 54 So. 132; In re Coreil’s Estate, 145 La. 788, 83 So. 13; Succession of Guillon, 150 La. 587, 91 So. 53; Succession of Hagan, 150 La. 934, 91 So. 303. * * *

“Our own conclusion is that the law invoked by the plaintiff is clear and explicit. It attaches no qualifications and imposes no conditions upon the necessitous wife who seeks to avail herself of its beneficial provisions. It makes no distinction between the faithful wife and the unfaithful wife. The husband, who is the sole judge of his feelings and of his honor, is the one to do this by taking appropriate legal action to sever the matrimonial tie if he is dissatisfied therewith. If he does not choose to take such action during his lifetime, no one, after he is dead, ought to be permitted to question the status of his wife and to contest her preferential right to receive $1,000 out of her husband’s estate.”

On the second point, as to whether the husband died rich, the property of the successsion of Francois Jouty in the city of New Orleans and in the parish of St. John the Baptist was appraised in the aggregate at $5,045.14. In addition, Jouty died possessed of a certain hereditary interest in property, situated in the republic of France, the value of which is uncertain, but, estimated by some one in the record at $500. Jouty’s possessions, at the time of his death, were modest enough, and not sufficient under ordinary conditions to justify the use of the word “rich” in describing his condition. But all things are relative, and we are convinced that in comparison with his wife’s condition, and within the meaning of the codal provision she relies on, he was wealthy.

In the Succession of Morris, 137 La. 719, 69 So. 151, a widow was allowed a marital fourth of an estate aggregating only $2,025.

Finally, as to the necessitous circumstances of the wife, it appears that she was possessed of a small tract of land in the parish of St. John the Baptist upon which was erected a double tenement, in one side of which she resided, and for the other she obtained a monthly rental of $3. She raised a few chickens and managed to secure a precarious existence: her wants being few and simple at her advanced age.

Our conclusion on this point is that the condition of Mrs. Jouty was such as to be clearly within the expression “necessitous circumstances” used in the Code.

For the reasons assigned, the judgment appealed from is affirmed.


author: ODOM, J. PER CURIAM.

text:
    No. 2588
    Second Circuit
    DODD v. HORAN; BEESON-MOORE STAVE COMPANY, Intervener
    (April 5, 1929. Opinion and Decree.)
    (May 8, 1929. Rehearing Refused.)
    (November 4, 1929. Writ of Certiorari and Review Granted by Supreme Court.)
    R. A. Fraser, of Many, attorney for plaintiff, appellee.
    Boone & Boone, of Many, attorneys for intervener, appellant.
   ODOM, J.

J. C. Horan operated a stave mill in Sabine parish and manufactured logs into staves. The plaintiff, Dodd, was employed as bookkeeper at the mill at a salary of $150 per month, from November 1, 1924, to April 1 of the following year. When Horan discharged him, he owed plaintiff a balance on salary of $350. Dodd brought the present suit for that sum, alleging that the amount was due him for services rendered and labor performed at the stave mill, and that he had a lien and privilege on all the stave bolts and staves manufactured in said mill plant during the period of his employment. He caused to be provisionally seized all staves found on the yards at the mill.

The Beeson-Moore Stave Company intervened, claiming ownership of the staves seized, alleging that it had purchased them from Horan prior to the seizure, in good faith and without previous notice that plaintiff claimed any debt against the defendant, Horan, or that plaintiff claimed a privilege on the staves. Intervener especially denied that the plaintiff had a privilege on the staves seized.

There was judgment in the district court for plaintiff against Horan for the amount claimed, and against intervener, recognizing plaintiff’s lien and privilege on the staves. Horan did not appeal, and the judgment is final as to him. The case was brought up by intervener, and it asks that the judgment, in so far as it recognizes plaintiff’s lien and privilege on the staves, be reversed. . j

OPINION

Plaintiff’s seizure of the staves must fall, unless it be held that he has a lien and privilege on them to secure the balance due him on salary as a bookkeeper for the mill in which they were manufactured. The staves seized were manufactured during the period of plaintiff’s employment.

Counsel for plaintiff concedes that he has no privilege on the staves under the Code, or any general law. But, it is contended that he has a lien and privilege under section 1 of Act 23 of 1912 (page 30), which reads as follows:

“That all managers, mechanics or laborers employed by or working in saw mills, planing mills, shingle mills, sash, door and blind factories, hoop mills, stave and box manufactories, shall have a lien or privilege on all logs, square timbers or lumbers, shingles, sashes, doors, blinds, hoops, staves, boxes and all material manufactured in the saw mills, planing mills, shingle mills, sash, door and blind factories, hoop mills, stave and box factories, where such managers, mechanics and laborers are engaged, or employed, for the payment of their salaries or wages; provided that this lien or privilege shall have no effect against bona fide purchasers of the said material, without previous notice.”

The three classes of persons granted a lien and privilege under this act are managers, mechanics, and laborers; no specific mention is made of bookkeepers, clerks, or other employees.

Privileges are stricti juris. They are not created by covenant, and can be allowed only in cases where they are expressly granted by statute or Code. C. C. art. 3185; Lochte vs. Lefebvre, 124 La. 244, 50 So. 26; Citizens’ Bank vs. Maureau et al., 37 La. Ann. 857; State vs. Citizens’ Bank, 33 La. Ann. 705.

Plaintiff was neither the manager of nor a mechanic in the stave mill. He kept the books, and, in connection with his services as bookkeeper, he at times went to the yards and helped to check and count the staves. Admittedly he performed no other service in connection with the manufacture of the staves. His claim to the privilege is grounded upon the proposition that he was a “laborer” at the mill, so that his right to a lien and privilege ’hinges upon the question of whether he was a “laborer” within the meaning of that term as used in the statute.

“The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.” C. C. art. 14.

The word “laborer,” in its broadest sense, includes all those persons who follow any legitimate employment, or perform any service or duty, either public or private. The President of the United States, members of his Cabinet, Governors, judges, attorneys, and editorial writers are all laboring men, in the sense that they do a great deal of work which is frequently attended by muscular and physical exertion. But, when the word “laborer” is mentioned in connection with a class of individuals, no one thinks of including such men in that class. They are not classed as “laborers,” in the sense in which that term is usually and generally used and understood. A laborer, in common parlance, is one who works with his hands; one who works at a toilsome occupation, especially a person who does work that requires strength, rather than skill, as distinguished from artisans and from the professional classes. Webster.

We quote the following from 35 C. J. 927, 928, and it will be noted by reference to this text that the writer has cited in support cases from practically all the states, including our own:

“Popularly speaking, the term, is not applicable to any one who does not earn his living by the work of his hands. When used in its ordinary and usual acceptation, ‘laborer’ carries with it the idea of actual physical and manual exertion or toil, and excludes anyone whose employment is associated with mental labor and skill; and such is the primary or specific lexical meaning uniformly assigned to the word. In its restricted sense, the term signifies one who performs manual, menial, or physical exertion, labor, or toil, not requiring special accuracy, knowledge, skill or training, for1 hire or wages, under the direction of his employer, master, or superior, and hence distinguished from an artisan, professional man, or skilled workman; a servant in a husbandry or manufacture, not living infra mcenia; an operative; a workman; one engaged especially in husbandry; one who does physical labor; one who is engaged in some toilsome physical occupation; one who is regularly employed at some hard work; one who labors in a toilsome occupation; one who labors with his hands for wages; one who literally earns his bread by the sweat of his brow; one who performs labor with his own hands; one who performs physical or manual labor; one who performs with his own hands the contract he makes with his employer; one who performs work which requires little skill or special training, as distinguished from a skilled workman; one who subsists by physical toil in distinction from one who subsists by professional skill; one who works at a toilsome occupation; one who works with his hands rather than with his head; especially a person who does work that requires strength rather than skill, as distinguished from artisans and from the professional classes.”

In the case of Cole vs. Grant, Sheriff, 144 La. 916, 917, 81 So. 398, 399, the court said:

“A laborer has been held, by various courts, in a restricted sense, to be one who performs manual labor, menial or physical exertion, labor, or toil, not requiring special accuracy, knowledge, skill or training, for hire or wages, under the direction of his employer, master or superior, and •hence distinguished from an artisan, professional man, or skilled workman; one who is engaged in or labors in some toilsome physical occupation; one who is regularly employed at some hard work; one who performs with his hands the contract he makes with his employer; one who subsists by physical toil in distinction from one who subsists by professional skill; one who works with his hands rather than with his head; a workman.”

The word “laborers,” in the statute under consideration, was used by the lawmaker in its ordinary sense, and must be construed to refer to and include only those who are ordinarily and usually classed as laborers.

As that word is generally used and understood, it does not include bookkeepers. A bookkeeper, it is true, does some work with his hands; so does a Supreme Judge. But his main work is mental, not physical. His work involves principally mental skill, the exercise of intellectual faculties and business capacity. His success depends upon mental skill, rather than upon physical exertion. In the “modus operandi” of keeping books, he is not directed or controlled by his employer. A bookkeeper’s contribution to industry is a mind trained to think — to calculate; whereas a laborer, as we understand and apply that term, contributes a strong arm and a stout back.

In construing laws granting privileges to laborers, courts have uniformly drawn a distinction between those who exercise mental skill and judgment, on the one hand, and those who labor with their hands, on the other. That distinction was very clearly drawn by the Michigan Supreme Court in the case of Michigan Trust Co. vs. Grand Rapids Democrat, 113 Mich. 615, 71 N. W. 1102, 67 Am. St. Rep. 486, in which, the court held that employees of a newspaper whose business it was to write editorials, prepare copy for the printers, direct the make-up of the paper, read proof, gather news, and report, could not claim the benefit of a statute which provides that all debts which shall be owing for labor by a corporation at the time it shall become insolvent shall be preferred claims against the estate of such insolvent debtor, but that work performed by a mailing clerk, whose duty it is to get out, address, and otherwise deliver papers to the patrons, being mechanical and manual, is embraced within the terms of the statute.

Likewise it was held in Guise vs. Oliver, 51 Ark. 356, 11 S. W. 515, that the term “laborer,” as used in an act providing that laborers who perform work and labor for any person under a written or verbal contract, shall have an absolute lien on the product of their labor for such work and labor, should be construed according to its common acceptation and to mean men who do work that requires little skill, as distinguished from an artisan, and is not to be construed liberally as giving to every laborer a lien for his labor.

Our investigation of the authorities discloses that it has been generally held that a bookkeeper is not included in the term “laborer,” as used in statutes granting liens to laborers or exempting their wages from seizure, as under article 644 of our Code of Practice; but there are some cases to the contrary.

In the case of State ex rel. I. X. L. Grocery Co. vs. Land, Judge, 108 La. 512, 32 So. 433, 58 L. R. A. 407, 92 Am. St. Rep. 392, it was held, to quote the syllabus:

“Mechanical engineers, electrical engineers, clerks, agents, cashiers of banks, bookkeepers, and all that class of employees whose employment is associated with mental labor and skill, are not considered as laborers.”

In Malcomson vs. Wappoo Mills (C. C.) 86 Fed. 192, it was specifically held that a bookkeeper of a mining company is not a laborer under “an act to provide for laborers’ liens.”

In Signor vs. Webb, 44 Ill. App. 338, it was held that a bookkeeper is neither a laborer nor a servant in view of an act to protect employees and laborers in their claims for wages.

In Milligan vs. San Antonio & G. S. R. Co. (Tex. Civ. Ap.) 46 S.W. 918, it was held that the term “laborer,” as used in' a statute providing that all mechanics, laborers and operatives who have performed labor in the construction or operation of a railroad shall have a lien thereon, apparently includes only those who have performed manual labor; and a bookkeeper and auditor in the employ of a construction company which builds a railroad is not entitled to a lien for the amount due him for his services.

In Cochran vs. A. S. Baker Co., 30 Misc. Rep. 48, 61 N. Y. S. 724, it was held that a bookkeeper is not a laborer, within the law preferring the wages of laborers of insolvent corporations.

It has been held that a railway clerk, whose services consisted mainly of work requiring mental, skill or business capacity, and involving the exercise of his intellectual facilities, is not a laborer within the statute relating to the exemption from garnishment of laborers’ wages. See Boynton vs. Pelham, 108 Ga. 794, 33 S. E. 876; Hunter vs. Morgan, 108 Ga. 409, 33 S. E. 986; Oliver vs. Macon Hardware Co., 98 Ga. 249, 25 S. E. 403, 58 Am. St. Rep. 300.

Counsel for plaintiff cites the case of Swain vs. Kirkpatrick Lumber Co., 143 La. 30, 78 So. 140, 20 A. L. R. 665, in support of his claim for privilege. The defendant in that case was a manufacturer of lumber, and plaintiff’s claim for a privilege was recognized by the court under Act 23 of 1912, p. 30, but he was a saw filer and the foreman of the mill. As a saw filer, he was a laborer, and, under the express wording of the statute, he was entitled to a lien as foreman.

Our conclusion is, and, we hold, that a bookkeeper is not a laborer under Act 23 of 1912, and therefore plaintiff has no privilege.

For the reasons assigned, the judgment appealed from, recognizing a lien and privilege on the staves seized, in favor of plaintiff, is reversed, and further ordered that the provisional seizure thereof be set aside and the staves released; all costs incurred on account of the main demand to be paid by Horan, the defendant; and all costs incident to the intervention and appeal to be paid by plaintiff, Dodd.

ON APPLICATION FOR REHEARING

PER CURIAM.

Counsel for appellee on application for rehearing says in brief:

“In applying for a rehearing, we do not complain of the learned and exhaustive opinion of the Court to the effect that a ‘bookkeeper’ is not a ‘laborer’ under the Act of 1912, but we do most earnestly submit, that the Court was in error in passing on that question at all, or in holding that that question could he decisive of the issues in this case.”

He now urges the point that this court had no right to pass upon the question whether a bookkeeper is a laborer and entitled to a lien and privilege on the staves manufactured, because that is a question which concerns only the plaintiff-appellee, and the defendant, Horan, who did not appeal, and hence that question is foreclosed by the judgment of the lower court.

The point raised 'on application for rehearing was not raised on the original hearing in this court, and we can not consider it now.

“It is settled practice of the Court not to notice in application for re-hearing points which were not made in the argument of the cause.” Succession of Broom, 14 La. Ann. 67; Nugent & Co. vs. Buisson, 35 La. Ann. 112; Baldwin vs. Sheriff et al., 47 La. Ann. 1470, and authorities cited; Petitpoin vs. Thereze Palmer and Her Husband, 1 Rob. 221.

Not only that, the very point which counsel says the court had no right to pass upon is the one which counsel on both sides particularly stressed in argument and in brief on the original hearing. It is the recollection of every member of this court that the question whether ,a bookkeeper is a laborer and has a privilege on the products of a stave mill, under section 1, Act 23 of 1912, was the only point stressed in argument by either counsel.

Counsel who now says the court had no right to pass on that point, submitted a brief on the original hearing, the syllabus of which is in one paragraph and reads as follows:

“All managers, mechanics or laborers employed by or working in sawmills * * * stave and box factories, shall have a lien and privilege on all * * * staves, boxes and all materials manufactured, * * * for the payment of their salaries or wages; provided that this lien or privilege shall have no effect against bona fide purchasers of said materials without previous notice.” Section 1, Act 23 of 1912; Swain vs. Kirkpatric Lbr. Co., 143 La. 30.

The act (23 of 1912) gives to all managers, mechanics and laborers employed to do work at stave mills a lien and privilege on staves manufactured at the mill, “provided that this lien or privilege shall have no effect against bona fide purchasers of said materials without previous notice.”

The two propositions which counsel stressed in Ms original brief were; First, that plaintiff, a bookkeeper, was a “laborer” and entitled to the privilege; and second, that intervener was not a purchaser of the staves in good faith and without notice ' of the lien in favor of plaintiff, and that, therefore, the staves passed from Horan, the defendant, to intervener burdened with the privilege. So that counsel for appellee came into court and earnestly and ably stressed the point that his client had a privilege on the staves for the reason, as we understand it, that if he had no such privilege, he could have no possible interest in the alleged sale from Horan to intervener. We decided that he had no privilege, and counsel now says the holding is correct. Then whiat further interest has plaintiff in the case? The lower court rejected intervener’s demands, holding, as we understand, that Horan is still the owner of the staves. We left the decision on that point undisturbed. Plaintiff, we think, has gotten all to which he is entitled. He seized the staves, not under attachment or fi. fa., but under an asserted lien and privilege. If he has no privilege, he cannot hold the staves and we dissolved the seizure.


author: HIGGINS, J.

text:
    No. 11,404
    Orleans
    RUEDY ET AL. v. INTERNATIONAL TRADE EXHIBITION, INC.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Paul A. Sompayrac, of New Orleans, and Anna McCay Ellis, of Amite, attorneys for plaintiffs, appellees.
    Dart & Dart, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiffs entered suit against defendant for the sum of $837 for commissions alleged to have been earned under a written contract which was subsequently modified by an oral agreement. The petition alleges that the written contract was entered into on October 7, 1925, and under the provisions of which plaintiffs were to be paid a salary of $50 each per week, and, in addition thereto, 15 per cent commission on the contract price of all exhibit space sold to whomsoever in the state of Louisiana; that on December 31, 1925, the said written contract was modified by mutual consent by a verbal agreement, whereby the plaintiffs were to be paid $100 per week as salary and 15 per cent commission on such contracts for exhibit space as plaintiffs had pending- and which they themselves would bring in, but that plaintiffs were not to receive any commissions on such contracts brought in by Mr. Odenheimer and his committee; that under the said modified contract plaintiffs brought in contracts for space in the defendant’s exhibition totaling 1,860 square feet, which, at $3 a square foot, amounted to $5,580, upon which they were to receive a commission of 15 per cent or $837; that under eight alleged contracts for space by different companies (the names of which are enumerated in the petition), 25 per cent of the year’s rental was paid as required by the contract of October 7, 1925, and therefore there was due plaintiffs the amount claimed, with 5 per cent interest on the amount of the commission due them under the respective contracts from the respective dates on which payments of commission were due plaintiffs.

The defendant answered, admitting the signing of the contract of October 7, 1925, and its provisions, and also admitting the oral contract of December 3, 1925, modifying the original contract, and also its terms and provisions. The answer also admits that the alleged eight contracts for space were obtained and the 25 per cent of the contract price required by the provisions. of the contract of October 7, 1925, was paid, but denies liability on the ground that it was the intention of the parties, in entering into the oral contract modifying the original contract, to' give plaintiffs an additional salary of $50 each per week more than they were receiving under the original contract of October 7th; that this increase in salary was to be in lieu of any commissions which plaintiffs might earn under the provisions of the original contract, excepting the commissions which would be due plaintiffs on contracts that were pending on December 3, 1925, when the verbal agreement was entered into; that only two of the alleged eight contracts were pending on December 3, 1925, but that the other six were not pending, and that the plaintiffs should not receive any commission for these other six alleged contracts; and that, in the alternative, as the '25 per cent of the yearly rental did not accompany the contract for space at the time that these contracts were secured, that plaintiffs had not complied with the provision in their agreement requiring cash payment of 25 per. cent, and therefore . defendant would not be liable except in one case, where the contract was so accompanied by 25 per cent of the yearly rental.

There was judgment in favor of plaintiff as prayed for, and defendant has appealed.

The record shows that defendant, International Trade . Exhibitiqn, Inc., employed plaintiffs for the purpose of securing contracts for space from those desiring to place exhibits on display.

The relevant part of the written contract of employment reads as follows:

“(1) Beginning Wednesday; October 7, 1925, you will be paid a salary of $50 per week each, payable at the end of each week. In addition, you will be paid 15% commission of the contract price of all space sold by whomsoever in the State of Louisiana. You will also have the privilege, with the written specific permission of the management in each instance, of closing space sales to firms outside of Louisiana. All commissions payable weekly ou signed contracts accompanied by check for 25% of year’s rental.”

The pertinent part of the oral contract, .modifying the written agreement, is as follows :

“Meeting Executive Committee.

“December 3, 1925, 4:30 p. m.

“* * * After considerable discussion of the matter, it was moved by Mr.,. Pfaff,, seconded by Mr. Koch and unanimously approved, that during the time Mr. Odenheimer and his Committee are attempting to dispose of space to local manufacturers Mes'srs. Gueydan and Ruedy will be paid $100 per week, with commission of 15% on such contracts as they now have pending and which they themselves will bring in, but that they are not .to receive any commission on such contracts as are brought in by Mr. Odenheimer and his Committee.”

Both plaintiffs testify that the alleged eight contracts for space were secured by themselves and were pending on December 3, 1925, and that 25 per cent' of a year’s rental was paid to the defendant in connection with each of the eight alleged - contracts; and that these contracts were not brought in by Mr. Odenheimer and his committee.

Defendant then undertook to rebut this testimony by two witnesses, W, A..Wittich, bookkeeper and second assistant treasurer of defendant corporation, and G. H. Deekert, its assistant secretary. Wittich was not able to testify .of his own personal knowledge who had secured the alleged eight contracts, but testified with reference to his books concerning these eight alleged contracts, as to the dates they were secured and when the deposits were made. The application for the space in reference to these contracts were introduced into evidence.

Mr. Wittich admitted, on cross-examination that Mr. Ruedy, one of the plaintiffs', had dealt with salesmen and, saw prospects about taking space in the exhibition.

Deckert testified that only one of the. contracts was handed him physically by plaintiffs; the balance of the ' contracts came through the mail. But the witness could not say whether these contracts which had come through the mail had been secured by plaintiffs.

We have therefore reached the conclusion that plaintiffs established a prima facie case and defendant has failed to rebut it.

Counsel for defendant contends that, under the provisions of the verbal agreement of December 3, 1927, plaintiffs were obliged to physically hand, in the contracts after securing them. As the record shows that contracts were solicited from various concerns throughout this section, we do not think that such an interpretation was intended by the parties, and therefore, if plaintiffs secured contracts through the mail, it was a sufficient compliance with their agreement. Counsel for defendant likewise contends that the 25 per cent yearly rental did not accompany the contract, except in one instance, and that therefore plaintiffs have failed to comply with their contract. This was" an alternative defense, and we see no merit in it, as the proof in the record shows that 25 per cent of the yearly rental was actually paid to the defendant corporation.

This case involves only questions ■ of fact, and therefore falls under the jurisprudence to the effect that the judgment of a trial court will not be disturbed unless manifestly erroneous.

We note that the judgment of the district court is silent as to the date from which the 5 per cent interest per annum shall begin, and therefore amend the judgment so as to make the interest run from judicial demand.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be amended so as to allow 5 per cent interest per annum from judicial demand until paid, and, as thus amended, affirmed, at appellant’s cost.


author: WEBB, J.

text:
    No. 3551
    Second Circuit
    SMITH v. SIMPLEX OIL CO., INC.
    (November 18th, 1929. Opinion and Decree.)
    (December 31st, 1929. Rehearing Refused.)

      Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff instituted this action to recover compensation. He alleged that, on July 13, 1928, while performing services arising out of and incidental to his employment with defendant, he sustained an accidental injury to his right eye which had seriously and permanently impaired his vision, and that he was entitled to recover compensation at the rate of $20 per week for a period of 100 weeks, and prayed for judgment accordingly.

On trial, judgment was rendered in favor of plaintiff, awarding him compensation at the rate of $5.40 per week for a period o,f 100 weeks, subject to a credit of $154.20, compensation admitted to have been previously paid; and plaintiff appeals.

The injury which resulted from a particle of steel being blown into the eye had healed at the date of the trial, leaving, however, two small scars encroaching upon the pupillary area, which admittedly impair his vision. Defendant accepted as correct the estimation of the extent of impairment made by the specialist called by plaintiff, which was that the impairment was from 25 to 27 per cent., and the court fixed the rate of compensation at 27 per cent, of $20, the maximum rate of compensation, and the period of compensation at 100 weeks. The award is conceded to have been made under the provisions of paragraphs 9 and 15, subd. (d), subsec. 1, sec. 8, of the statute (Employers’ Liability Law, Act No. 20 of 1914, as amended by Act No. 85 of 1926), and the deduction for compensation previously paid to have been made under paragraph 18 of the same subdivision.

Subdivision (d) of section 8 provides for compensation for the loss of certain members of the body, and paragraph 9 provides that, for the loss of an eye, the rate and period of compensation shall be 65 per centum of wages, not to exceed $20 per week, during a period of 100 weeks, and paragraph 15 of the subdivision declares that:

“In all cases involving a permanent partial loss of the use of function of the member mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such member bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable under this act for the loss of such member.”

And paragraph 18 provides that:

“Where compensation has been paid under- subdivisions a, b, or c of this schedule, the amount of such payment shall be deducted from any compensation allowed under subdivision (d),” etc.

Plaintiff urges that the award should have been máde under the provisions of subdivision (c), subsec. 1, sec. , 8, which provides for compensation for injury producing partial disability, under which the rate of compensation' is fixed at 65 per centum of the difference between the wages received by the employee at the time of the accident, and the wages which he is able to earn thereafter, and the ' (period of compensation is fixed at not more than 300 weeks; or that the' award should have been based upon the provisions of paragraph 16, subd. (d), subsec. 1,' sec.' 8, which provides that:

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

and finally, plaintiff ■ urges that if the award was correctly based upon' the provisions 'of paragraphs 9 and' 15, the rate of. .compensation fixed was inadequate, and that there .should not have been any deduction ‘ for compensation previously paid.

' It is urged ' that the “eye” is not a member, but an “organ” of the body, and that neither paragraphs 15 nor 16 aré applicable when there has been an impairment or partial loss of the use of the eye, and that compensation should be based upon disability to earn wages resulting from the impairment or. partial loss of the eye, or, in" the present case, upon the difference between the wages earned by plaintiff and the wages that he was able .to earn thereafter.

Subdivision (d), as stated, provides compensation for the loss of specific members of the body, among which the “eye” is included, and, although it may be that the “eye” is generally referred to as an “organ,” rather than as a “member” of the body, we think it was clearly the intention of the Legislature to fix the amount to be awarded for the impairment or partial loss of the use of the eye on the same basis as for the impairment or partial loss of other members of the body, such as the hands, feet, etc.

Certainly, if the evidence in the present instance established that plaintiff had earned, .and was able to earn, greater wages than prior to the accident, the court could not refuse to award compensation for the specific disability, impairment,- or loss of the usefulness of the eye resulting from the accident.

It is true that paragraph 15, subd. (d), does not expressly declare that its pro: visions shall be Applied where there: is a partial lo;ss of the use of the eye; neither does it expressly declare that its" provisions shall be applicable when there is a partial loss of the usé of the limbs, or other members of the body, ' for which the preceding paragraphs of the -subdivision fix specific compensation where there is a .total .loss of such members, but we are of the opinion that paragraph 15 is equally as applicable where there is a partial loss of the use of the functions of the eye, or impairment of vision, as it must be conceded that it would be applicable where there is a partial loss of the limbs, or other members of the body specifically mentioned, and while it may be that other provisions of the statute might have been applied to the situation presented,' if paragraph 15 had been omitted, and possibly that the (provisions of paragraph IB may have been applied, but, considering the provisions of subdivision (d) as a whole, it ■ is apparent that the provisions of paragraph 16 are not applicable when there- is a partial loss of the use of the function of any member specifically mentioned in the preceding paragraphs.

While the court -in fixing the rate of compensation was not confined to the estimate of the extent of the impairment of vision, or loss of the use of function of the eye made by the experts, such evidence was the only evidence offered from which the extent of the loss could be ascertained, and, the rate having been fixed at the highest' estimate made by the experts, plaintiff has not any cause to complain.

There is not any ambiguity in the provisions of paragraph 18, which specifically provides that, where compensation has been paid under subdivisions (a), (b), or (c) of subsection 1, section 8, the amount of such payments shall be deducted from any compensation allowed .under subdivision (d), and, the evidence showing that plaintiff was paid compensation during the period he was unable to work, as the result of the accident, the amount paid was properly deducted.

The judgment appealed from is affirmed.


author: WESTERFIELD, J.

text:
    No. 11,570
    Orleans
    DE LATOUR v. LALA
    (December 16, 1929. Opinion and Decree.)

      H. W. Kaiser and J. H. Hammel, Jr., of New Orleans, attorneys for plaintiff, appellant.
    James G. Schillin, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff entered suit on March 8, 1927, on an open account alleged to have been contracted by defendant on January 8, 1925, in the sum of $385.95. Defendant, after answering categorically the allegations of plaintiff’s petition, by way of further defense averred that on March 26, 1926, in the proceeding No. 3116 of the docket of the United States District Court for the Eastern District of Louisiana, he had obtained a discharge in bankruptcy, the effect of which was to release him from plaintiff’s claim.

On the trial of the case, defendant admitted having incurred the indebtedness sued on. His counsel introduced a copy of his discharge in bankruptcy, •whereupon plaintiff’s counsel attempted to prove that plaintiff’s debt was not affected by the discharge in bankruptcy, because it was a liability incurred by false pretenses and false representations, and therefore, under section 17 of the Bankruptcy Act, as amended by Act of February 5, 1903 (U. S. Comp. St. sec. 9601), it was not included among the provable debts for which his discharge was a release. The section of the Bankruptcy Act referred to reads as follows :

“Sec. 17. Debts not Affected by a Discharge. — (a) A discharge in bankruptcy shall release a bankrupt from all his debts, except such as (1) * * *; (2) are liabilities for obtaining property by false pretenses or false representations. * * *” 11 USCA sec. 35.

On objection, the testimony sought to be adduced in support of plaintiff’s contention was excluded upon the ground that there was no allegation in plaintiff’s petition to which the proof sought to be administered was responsive.

The court thereupon proceeded to render judgment in defendant’s favor upon the ground that his discharge in bankruptcy released him from liability to plaintiff.

It is an elementary principle of pleading that the allegata and probata must correspond, and that, in the administration of proof, the parties offering the evidence must be confined to the allegations of their pleadings. But there is nothing in the principle referred which requires the pleader to anticipate defenses and set up “men of straw” for the purpose of knocking them down. Our system of pleading does not require' or permit replication. The plaintiff is pre-. sumed to deny the affirmative allegations of defendant’s answer, and when, as in this case, a special defense is made, there is no necessity resting upon the plaintiff to expressly challenge the facts upon which it is based. He is presumed to have denied them.

In West v. McConnell, 5 La. 424, 25 Am. Dec. 191, it was held that “it is unnecessary for a party to specially plead matters which may or may not become material according to the course which his adversary may adopt.” In Dyer v. Seals, 7 La. 132, the court said:

“The plea in reconvention, authorizes the plaintiff to give in evidence the value of the work done for which he sues, to repel the demand for damages against him for the non-performance of his contract.”

In the case at bar there was no necessity for plaintiff to allege that his debt was excepted from the obligations of defendant released by his discharge in bankruptcy. In the first place, he could not know that defendant would plead his discharge as a bar to his suit, and was under no obligation to anticipate such defense. The defendant having tendered the issue of his discharge under the bankruptcy law, the plaintiff was entitled to repel the effect of such discharge by showing that his debt was excepted therefrom.

In the Louisiana Digest, vol. VI, verbo, “Pleading,” on page 15 we find the following:

“One who accepted a mortgage, though merely pro forma, becomes a party to the act, and is bound by recitals therein contained affecting his interests; and a plaintiff suing for the enforcement of such mortgage need not set up the estoppel in his petition, since one is not bound to allege matters the materiality of which depends upon the possible plea of his opponents. (West v. McConnell, 5 La. 427; Reinach v. Improvement Co., 50 La. Ann. 497 (23 So. 455), cited).” Lafourche Tran. Co. v. Pugh, 52 La. Ann. 1517, 27 So. 958.

Our conclusion is that the action of the trial court in excluding the evidence sought to be administered by plaintiff was erroneous.

For the. reasons assigned, the judgment appealed from is reversed, and it is now ordered that this cause -be remanded to the civil district court for the parish of Orleans for further proceedings according to law, and consistent with the views herein expressed.


author: JANVIER, J.

text:
    No. 11,767
    Orleans
    CHICAGO DEMOLISHING CO., INC., v. WERK
    (January 27, 1930. Opinion and Decree.)

      Woodville and Woodville of New Orleans, attorneys for plaintiff, appellee.
    Pomes and McCabe of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Chicago Demolishing Company, Inc., had undertaken to demolish and remove a large building on Baronne street, near Poydras street, and as Robert Werk desired to purchase the steel framework of the building and certain other parts thereof a contract was entered into between them reading as follows:

“Know all men by these presents, that the Chicago Demolishing Co., Inc., herein represented by E. J. Lamothe, Jr., First Vice President and General Manager, sells, assigns to Robert Werk, the steel frame complete, including three staircases and all skylights, of the old Winter Garden, situated on Baronne between Poydras and Lafayette streets, for the sum of two thousand six hundred and fifty dollars ($2,650.00), on the following conditions, to wit:

“The said Chicago Demolishing Co., Inc., are to demolish and take apart the said frame without injury to its capacity for re-erection and to haul and store same at the expense and cost of the said Chicago Demolishing Co., Inc., binds and obligates themselves to deliver every piece of said ^frame in good condition any time that the said Robert Werk may demand same within the period as fixed by this contract. The additional cost of hauling from the yard of the said Chicago De.'molishing Co., Inc., to any place where the said Robert Werk may desire will be at the cost and expense of the said Robert Werk.

“The said Robert Werk has this day paid to the said Chicago Demolishing Co., Inc., on account of the purchase price herein, the sum of' two thousand dollars ($2,000.00), receipt whereof is hereby acknowledged and-for the balance, the sum of six hundred and fifty dollars ($650-00), same to be paid when the said steel frame is delivered to the said Robert Werk in good condition.

“It is further agreed that the sprinkling system, exclusive of the tank, compressor, water pump, electric motor and base, which was removed by the Chicago Demolishing Co., Inc., from the aforesaid building will be stored by them and they hereby agree to sell same to the said Robert Werk, the same to be delivered at the same time as the steel frame for the following consideration, to wit: Eighteen dollars per ton.

“Signed in duplicate this 19th day of May 1926. Robert Werk. (Signed) Chicago Demolishing Co., Inc., per E. J. Lamothe, Jr., 1st Vice Pres.”

The building was demolished and the steel framework was removed to the yard of the demolishing company. Some six months later Werk employed draymen and moved the material away, and thereafter used most of it in the construction of another building.

Since only $2,000 had been paid by Werk to the demolishing company, there was due under the contract $650, which Werk neglected to pay, and this suit is for the collection of that amount..

As a defense,. Werk contends that he has never received certain framework and material and he itemizes' this shortage as follows:

5 Channels 12 in. 18 ft. long.

1 I-beam 18 in. 27 ft. long.

1 Beam 12 in. 18 ft. 2 in. long.

2 Beams 12 in. 19 ft. 2 in. long.

1 Beam 10 in. 26 ft. 6 in.

1 Beam 10 in. 27 ft. 6 in.

5 Beams 10 in. 27 ft. -6 ’ in.

39 Channels 7 in. from 13 ft.

21 Channels 7 in. to 19 ft. 2 in.

190 Channels 3 in. and 4 in. (with wood) 6 ft.' and 8 ft. long.

6 Stair Rails 28 ft. long by 3 ft. high 2 in. pipe, proscenium railing (2 in. pipe posts).

12 Newels for stairs (3 stairs).

1 Stairs 28 ft. long by 8 in. wide with 26 risers (treads received).

37 Bedplates.

Werk not only refuses to pay the balance claimed, but, by way of reconventional demand, asks for judgment against plaintiff in the sum of $2,554.52, claiming this as the value, on a replacement basis, of the materials which he avers he did not receive.

Some 20-odd years ago the building in question was erected as a beer hall and music garden. The venture proved unprofitable and the structure was then converted into a theater.

Financial misfortune again closed the doors and some time thereafter the owners made the necessary alterations to convert the building into a skating rink. This enterprise also failed, but the owners, with commendable persistency, prevailed upon a prize fight promoter to take over the operation of the place and made such structural changes as were necessary to fit it for the new venture. This scheme, like the -earlier' ones, provéd unremunerative, 'and finally it was decided to use the place as an automobile garage, which, however, like all the former attempts, produced no financial return.

The evidence as to these various enterprises and with reference to the different structural changes necessitated by each is • very meager, but we are well convinced of the substantial correctness of the above historical sketch, and we are also certain that considerable alterations were, from time to time,, made.

The above recital is necessary, because the shortage now claimed by Werk seems almost entirely to result from the fact that he checked the materials delivered to him against the plans and specifications under which the building had been originally erected some 20 or more years before, and as a result of said check found that according to those plans, the materials listed had formed part of the original building but had not been delivered to him.

The first question which we are called upon to consider is whether the contract contemplated that Werk ' was to ' get only what was actually in the building at the time of the contract, or was entitled to receive what had been called for by the plans prepared for the building as erected years before, and as it existed prior to the several alterations.

The only portion of the contract which throws any light on this question is the first sentence of the second paragraph, which reads as follows:

“The said Chicago Demolishing Co., Inc. are to demolish and take apart the said framework without injury to its capacity for re-erection. * * .

Manifestly, it was not within the power of the demolishing company, or of any one else, to take apart any other framework than that which existed at the time of the contract.

If it had been intended otherwise, it would have been a very simple matter to have inserted in the contract that the material sold was such as the framework had originally contained, or some similar words, which would have left no room for doubt. The contract was prepared by Werk’s attorney, and, if it is ambiguous any uncertainties should be resolved against Werk. It would have been very foolish on the part of the demolishing company to have agreed to sell the framework as it originally was erected, because it was clearly not within its power to deliver something that did not exist.

That Werk knew that he was to get only such framework as existed at the time of the confection of the contract is evidenced by the fact that he carefully inspected the framework before he bought it and by the further significant fact that he did not examine the blueprints and plans until long after the material was delivered to him. If he had had any idea that he was buying according to plans he would have insisted on seeing those plans before he closed his contract. An attempt was made to show that he did ask for the plans, but we believe that the evidence to the contrary substantially preponderates.

We feel that Werk was entitled to what was in the building at the time of the execution of the contract, and not to such additional parts as may have been originally included.

The material was stored by the demolishing company for Werk’s account, and was removed by Werk without objection or protest, and, since no charge of shortage was claimed until long after it was in Werk’s possession, we feel that the burden rests heavily upon him to show definitely and positively what parts were not delivered to him, but were contained in the building when the contract was made.

So. far as the bed plates are concerned, it is not disputed that they were cast iron and not structural steel, and it necessarily follows that they were not included in the contract of sale. It is true that some few of them were delivered to Werk, but the evidence shows that this resulted from the fact that the demolishing company had no use for them, and therefore delivered to Werk such as were removed from the structure, although he was not entitled to them under his contract. We are well convinced that very often steel framework of the kind in question is erected on concrete foundations without the use of such bed-plates, and it was therefore not absolutely essential that the purchaser of the framework should also obtain the bed-plates.

Much ado is made over the fact that the agreement specifically included three staircases whereas it is now contended that only two were delivered. On a first reading of the record we gained the impression that one of the staircases was entirely missing. However, an analysis of the list of claimed shortages convinces us that such is not the case, because on the list itself we find the following: “1 Stairs 28' long by 5' 8" wide with 26 risers (treads received).”

The stairway consisted of two sides and the treads. There is no evidence that this. particular stairway, the 28-foot one, ever had any risers, and it is common knowledge that this type of steel stairway is often constructed without risers. Therefore the only parts missing were the two sides. What became of these sides the evidence does not show, but it does show that everything contained within the building was hauled to the yard, and it does show that everything at the yard was hauled away by Werk without protest on his part. However, this item appears to us to be trivial.

The other items are almost exclusively channel irons and beams, and unquestionably were removed during the various remodelings of the structure. Noisen, the expert produced by defendant to check up the material received against the plans, seems to have made substantial errors in his calculations. According to his own testimony, as it appears on pages 38 and 39, many corrections were made by him in his original list.

The evidence as to the burning up of a few channel irons, and as to the sale of a few others, ’ is very unconvincing. Plaintiff explains that the boiler room and storeroom were also demolished, but that the materials contained therein were not sold to defendant, and that such items as were destroyed or sold to others were from these two buildings, and not from the main framework.

We find the testimony of Stockfelt particularly unimpressive. His animosity manifests itself plainly. On two occasions, when his integrity was not in any way questioned, he volunteered the statement: “I am telling what is the absolute truth.” The fact is that he had at one time been employed by plaintiff, but had thereafter been engaged by defendant, and he was as openly antagonistic to plaintiff as he was sympathetic to the cause of defendant.

Werk’s attempt to recover by reconvention for the alleged shortage of a few parts, practically as much as he had contracted to pay for the whole, does, not evidence a reasonable, or fair attitude, particularly as he did not need the new parts, for the furnishing of which he obtained' bids, and did not purchase them, but erected a building with such part of the old framework as was delivered to him.

The entire defense appears to us to be an afterthought, determined upon by defendant to avoid paying the balance due by him. We fully agree with the trial judge, who rendered judgment for plaintiff as prayed for on the main suit, and dismissed the reconventional demand.

The judgment appealed from is affirmed, at the cost of appellant.


author: WEBB, J'.

text:
    No. 3613
    Second Circuit
    WROTEN v. WOODLEY PETROLEUM CO.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    John B. Files of Shreveport, attorney for defendant, appellant.
   WEBB, J'.

In this action plaintiff obtained judgment against defendant for compensation for disability alleged to have resulted from injuries sustained by plaintiff on June 18, 1928, while engaged in his employment by defendant; the award "being made on the basis of permanent total disability to do work of any reasonable character (par. (b), subsection 1, section 8, Áct No. 20 of 1914, as amended by Act No. 85 of 1926)', and defendant appeals.

It* is - conceded that plaintiff sustained an accidental injury on the date alleged which disabled him, and that defendant was liable for compensation resulting from the injury, and it is conceded that defendant paid compensation for the period from the date of the accident to August 1st, 1928, for the judgment allowed credit, and appellant urges that the evidence failed to establish that any disability resulted from the accident after August 1st.

The evidence established that plaintiff, who was thirty-five years of age, about six feet in height and weighing about two hundred pounds, was working near the top of a cylinder shaped oil tank, which was twenty-four feet high, and that he tripped and fell á distance of about eight feet to- an angle bar or iron bracket, which was about two and one-half inches wide and four feet long, which projected from the walls of the tank; that his body landed on and across the bracket, from which he was removed by some of his fellow workmen, and carried to his home where he was attended by a physician.

It is conceded that the fall produced immediate disability, and plaintiff testified that as he fell he caught the bracket with his right hand, but that his right side struck the bracket at about the eleventh or twelfth rib, bruising his side, back and right shoulder, and that he had since the accident suffered with constant pain in his shoulder, side and back, and had been unable since the date of the accident to. work, and that prior to the accident he had been in good health.

The evidence shows that on or about September 10, 1928, plaintiff’s body was stooped or bent to the right, with his left shoulder several inches higher than the right, and that he complained of pain in his side, shoulder, and back, and the same condition was shown to have continued and existed on--the date of the trial in January, -1929, and. we think the evidence establishes that the condition was sufficient to have totally disabled plaintiff to do work of any reasonable character, and appellant does not suggest that he was not, but it is contended that the evidence does not show any connection between the condition and the accident.

Appellant urges, that the evidence shows the condition was due solely to a disease, arthritis, and, while it is apparently conceded that, if the evidence shows that the accident was the direct cause of the disease, or that the disease existed at the time of the accident and had been accelerated or aggravated by the accident, defendant would be liable, it is contended that the evidence did not show that plaintiff had sustained any specific injury, such as a fracture of the bones, or wound of other tissues of the body, which would have tended to cause the disease, or that the defendant was already affected with the disease, which was accelerated or aggravated by the accident.

There were a number of physicians called by the parties, and, while it appears that the weight of opinion was that the plaintiff had arthritis in September, 1928, and that such disease would cause the condition existing at that time, all of the physicians stated that the disease could be caused by trauma, or wounds of th'e tissues of the body, such as fracture of the bones, or bruises, and, although it was not shown that plaintiff had the disease prior to the accident or that there was any source of infection existing at the time of the accident,- yet plaintiff testified that his body had been - bruised at the time of the accident, and, conceding that the condition existing in September was caused by arthritis, the evidence shows that the bruises sustained by plaintiff could have caused the disease. ■

It is conceded that plaintiff was immediately disabled by the accident, for 'which he was treated by a physician for several weeks, and while it was said in argument that the physician (who was not called) had reported * that the plaintiff was able to resume work, plaintiff testified that he had suffered with continuous pain since the accident, which disabled him, and that the physician who attended him had discontinued his services for the reason that he could not do anything further for him, and not for the reason that plaintiff had recovered. And accepting the statement of plaintiff as correct, which the court is bound to do in the absence of any evidence in conflict with his testimony, the situation presented is that plaintiff was well and in good health before the accident, which immediately disabled him, and that he had been in constant pain since that time and unable to work. We think the conclusion should be that the pain and disability were the result of the blow sustained at the time of the accident, which it must be admitted was of such nature as to have caused the result.

And, even though it be conceded that plaintiff had arthritis in September, and that the condition existing at that time could be attributed to the disease, we do not think the conclusion would be affected, especially in' view of the evidence that plaintiff sustained bruises of the body at the time of the accident which could have caused the disease.

We realize that the mere fact that a workman has sustained an injury which produces immediate disability is found some time after the accident to be afflicted with a disease, which may have resulted from the accident, does not raise any presumption that the accident caused the disease; however, when, in addition to the circumstances stated, it is shown that the workman was in good health prior to the accident without any symptoms of the disease, and that he was immediately disabled by the accident in which he sustained wounds which could have caused the disease, and that the illness or pain immediately following the accident had been continuous, we think the presumption should be that the accident caused the disease, and that the workman is entitled to compensation for the resulting disability.

The judgment is affirmed.


text:
    No. 13,115
    Orleans
    WATKINS v. JAHNCKE DRY DOCKS, INC.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      McCloskey & Benedict, of New Orleans, attorneys for plaintiff, appellee.
    Spearing & Mabry, and Wm. H. McClendon, Jr., of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

WiHiam B. Anderson; plaintiff’s husband, died as the1 result of an accident sustained while he was repairing the rudder of a steamship on the dry-dock of defendant floating in the Mississippi river. It is thus evident that he was, at the time of the accident, engaged in a maritime occupation. Gray vs. N. o. Drydock & Shipbuilding Co., 146 La. 826, 84 So. 109. As he was engaged in a maritime occupation, the state’s Workmen’s Compensation Act has no application. Southern Pacific Co. vs. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C 451, Ann. Cas. 1917E, 900; Knickerbocker Ice Co. vs. Stewart, 235 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; Peters vs. Veasey, 251 U. S. 121, 40 S. Ct. 65, 64 L. Ed. 180.

But the fact that Anderson was engaged in a maritime occupation and that thus the compensation statutes of the state do not apply does not deprive the state courts of jurisdiction. On the contrary, the United States Supreme Court, has several times held that the question of jurisdiction as between the federal courts and the state courts is not involved in matters of this kind, and that the state courts may decide the issues presented, subject only to the limitation that the remedy which the state court may afford shall be such remedy as is provided by the “common law” as distinguished from some special remedy furnished by particular legislation, such as state compensation statutes. The right in the state court to proceed with a matter of this kind results from the saving clause in the Judiciary Act of the United States of 1789, section 9, which is now contained in the third paragraph of section 256 of the U. S. Judicial Code (28 USCA sec. 371) which, in matters of admiralty and maritime jurisdiction, vests exclusive jurisdiction in the courts of the United States, but which saves “to suitors in all cases the right of a “common law” remedy where the “common law” is competent to give it.”

The remedy afforded under article 2315 of our Civil Code is such a remedy as is contemplated as being afforded by the “common law” and therefore the state courts are not deprived of jurisdiction. In paragraph 3 of. the syllabus in the matter of Messel vs. Foundation Co., 274 U. S. 427, 47 S. Ct. 695, 71 L. Ed. 1135, appears the following:

“Art. 2315, Louisiana Rev. Code, supra, furnishes the equivalent of a ‘common law remedy,’ saved ' to suitors in the state court by sec. 9, Judiciary Act of 1789, sec. 253 Jud. Code (28 USCA sec.'371) p. 433.”

In that case the Supreme Court reversed the decision of the Supreme Court of Louisiana, which had held that the state courts were without .jurisdiction. To the same effect is the decision of the Supreme Court of the United States in Panama Railroad Co. vs. Vasquez, 271 U. S. 557, 46 S. Ct. 596, 70 L. Ed. 1085, in which Mr. Justice Van Devanter said:

“The sole question presented is whether state courts may entertain such actions, the defendant’s contention being that they are cognizable only in the federal District Courts. * * *

“This clause is a continuation of a like clause in the Judiciary Act of 1789 * * * and always has been construed as permitting substantive rights under the maritime law to recover money for service rendered, or as damages for tortious injuries, to be asserted and enforced in actions in personam according to the course of the common law. * * * And it uniformly has been regarded as permitting such actions to be brought, in either the federal courts or the state courts, as the possessor of the right may elect.”

It thus appears that plaintiff’s action was properly brought in the state court, but that she can recover, if at all, only through article 2315 of the Civil Code, and not under the compensation statutes of Louisiana.

Deceased, Anderson, was in charge of a gang composed of himself and two assistants. Their work required them to be on a scaffold which was constructed of four stepladders about 19% or 20 feet high, across which certain boards or planks had been placed. There were two ladders on each side of the vessel, and some of the boards extended from ladder to ladder, while others ran across from the boards on one pair of ladders to the boards on the other pair. As a result of the breaking of one of the boards on which Anderson was standing, he fell about 20 feet to the floor of the dock and sustained the injuries from which he died nearly two weeks later.

Plaintiff, widow of the deceased, charges that the master, Jahncke Dry Docks, Inc., is liable because it failed to furnish to Anderson a safe place to work. Defendant contends that the construction and altering of the scaffold were entirely within the scope of the duties of Anderson himself; that all the necessary material was furnished for the purpose; and that if he, in arranging the decking of the scaffold, used material that was patently defective, the cause of the accident was his own carelessness in this regard.

The evidence convinces us that it is quite true that these scaffolds are not only temporary in the extreme, but that they must, from time to time, be moved and altered during the course of each particular job, and that it is the duty of the crew engaged in the particular job to do the necessary moving and altering.

It became apparent that the planking on which Anderson was working was not sufficiently wide to afford him reasonable safety, and he caused his two helpers to descend to the deck of the dry dock to select and hand up to him additional planks.

Near the ladders there were a few planks, and at about 50 or 75 feet away (so defendant claims) there was a pile of others of various sizes and grades. Anderson’s helpers handed him a plank which was near the ladders, but he, noticing a knot almost entirely across it, rejected it. His helpers then went to the larger pile of lumber to make a better selection. When they returned someone had placed in position across the ladders boards where it was intended that those for which they had gone should be placed, and they did not hand up the ones which they had brought. A short time later one of the boards, which had been handed up and placed, broke ,|,nd Anderson fell.

Plaintiff charges that one Stinespring, who was superior in authority to Anderson, had ordered the particular board to be placed on the scaffold, and she claims that Anderson was justified in relying on Stinespring’s superior judgment. Stine-spring denies that he had anything to do with the board and states that he was working on the other side of the vessel.

There is really no serious dispute as to the law applicable to this case. Of course, the general rule is that the master must furnish a safe place to work, but it is equally clear that, if it is the duty of the particular servant to prepare the place in which he is to work and proper materials are supplied him, he cannot complain if, as a result of his own neglect, the place in which he works is not safe. As was well said in Griffin & Son vs. Parker, 129 Tenn. 446, 164 S. W. 1142, 1144, L. R. A. 1917F, 497:

“The general rule is that an employer is bound to use reasonable diligence to furnish the employee a safe place and safe instrumentalities for the work to be done; but an exception exists in case of a scaffold where the employer supplies ample material of good quality and competent labor for the construction of such appliance, which he is not required to furnish in a completed state, and which the employees, within the scope of their employment, are themselves required to construct. In such case the employer is not liable to one of the workmen for the negligence of a fellow servant in the construction of the scaffold.”

If the negligence of a fellow servant under such circumstances would deprive the injured party of the right to recover, his own negligence would operate even more effectively as a bar to an action of this kind, if in fact Anderson had anything to do with the alterations.

But it is contended that, although Anderson ordinarily had full authority to repair and alter the scaffold, it was done in, this case by Stinespring, his superior, and without the knowledge of Anderson.

We find the evidence in the record quite confusing. A large part of it consists plainly of hearsay. Most of the testimony of Cox as to what Anderson told him several days after the accident is conceded to be inadmissible. However, Cox testified that he had repeated to Stinespring Anderson’s statement as to the cause of the accident and that he (Stinespring) had said that “that was true, that that particular plank should not have been used and would not have been used, but they were short of material at that particular time.” When Stinespring’s testimony was taken by commission, he stated that he had had nothing to do with placing the board. Therefore the testimony of Cox in that regard was admissible, not for the purpose of proving the fact that Stinespring had ordered the board placed, but solely for the purpose of attempting to impeach Stinespring.

The statement that they were short of material, which is attributed to Stinespring by Cox, is, in effect, denied by the testimony of the witnesses who went to the other lumber pile and state that they secured suitable boards. Then, too, defendant contends that even if there was a shortage of proper material, and even if Stine-spring did order the board to be used, this did not relieve Anderson, a man of discretion and having authority, of the duty of exercising common sense, and did not justify him in blindly assuming that the board placed in position by his superior was sufficiently strong for the purpose for which it was intended. In support of this contention counsel cites the following:

“* * * A servant is presumed to possess, not only common sense, but certain knowledge peculiar to his trade or art. The master may be presumed to hire, not only the bodily services of the servant (his hands, eyes, ears, muscles, and legs), but the skill and knowledge pertaining to the servant’s art or trade, and possessed by the latter. Hence it is steadily held as sound law that the master may trust the servant to perform the intermediate, the ordinary and simple, duties incident to the servant’s employment and resting upon the servant’s knowledge and skill. For instance, a carpenter knows a good board as well as his master, and in many cases better. A master buys a mass of raw materia], some bad, some good — a result incident to all buying by the quantity in market. Must he be present in person, or constructively, at every precise moment of time to select and deliver to that carpenter a sound board, so the carpenter will not hurt himself or his fellow craftsman, or may he trust that carpenter to select a good board from the mass of raw material? We think there can be but one answer to this question.” Forbes vs. Dunnavant, 198 Mo. 193, 95 S. W. 934, 938.

In Connelley vs. Southern Pacific, 140 La. 120, 72 So. 829, 832, the Supreme Court of Louisiana considered a ease the facts of which were in many respects similar to those involved here. The question presented was whether the man working on the scaffold had selected the material, or whether he had been ordered to use it by a superior. Under the facts of that case the court found that the man himself had selected the material and, in discussing the legal question presented, said:

“The doctrine whereby the master is held to the exercise of superior intelligence in regard to the danger which may threaten the servant does not go to the extent of requiring that a man of mature age and apparently fair intelligence should 'be regarded as incapable of distinguishing between a broken and rotten plank and a sound one.”

But whether or not the circumstances were such that a man of Anderson’s experience should have noticed the defect in the board is entirely a question of fact, as is the question of who in fact placed the board, or ordered it placed. The testimony on these points, as it appears in cold type in the record, does not appear to us to preponderate either way, and therefore we do not feel justified in reversing the judge a quo, who saw the witnesses and was therefore in better position to weigh the evidence. The fact that the accident happened at night, and that therefore Anderson’s vision was to some extent limited, and that consequently he did not notice a defect which in daylight might have been apparent, is a circumstance which was no doubt taken into consideration by the judge a quo.

Furthermore, the defense set up is in the nature of a special one, and thus the burden of sustaining it by a preponderance of the evidence is also placed upon the defendant. We do not believe that it has successfully borne this burden.

Since we believe that the . defendant is liable, it becomes- necessary- for us to consider whether or not - the amount allowed by the trial court, $7,000, is adequate. Anderson suffered considerably and did. not die until nearly two weeks after the accident. He- had been earning nearly $200 a month.' His age was ■' 52. Taking all' these matters into consideration, we are of the opinion that the amount allowed was not sufficient and was somewhat below the amounts allowed in similar cases heretofore. It seems tó us that $10,000 would be more nearly correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by increasing the amount thereof to $10,000, and as thus amended, affirmed.