text:
    No. 10,558
    Orleans
    CARLINO v. NEW ORLEANS PUBLIC SERVICE INC.
    (March 12, 1928. Opinion and Decree.)

      (Syllabus Toy the Court)

    1. Louisiana Digest — Automobiles—Par. 4 (a); Street and Interurban Railroads —Par. 31, 34; Evidence — Par. 351.
    A judgment based on a jury’s verdict in favor of a guest in an automobile for seven hundred fifty dollars will be reversed where the preponderance of the evidence fails to show that the motorman of the car was negligent under the circumstances.
    Appeal from Civil District Court, Division “C.” Hon. E. K. Skinner, Judge.
    Action by Thomas Carlino against New Orleans Public Service Inc.
    There was judgment for plaintiff and the defendant appealed.
    Judgment reversed.
    S. Roccaporte & D. Wendling, of New Orleans, attorneys for plaintiff, appellee.
    B. W. Kernan, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Defendant appeals from a judgment for seven hundred fifty ($750.00) dollars, based upon the verdict of a jury, by a 9 to 3 vote.

Plaintiff sued for twenty-two thousand, six hundred and sixty-five ($22,665.00) dollars damages for personal injuries sustained August 23, 1924, in a collision between the automobile in which he was riding as a guest of the driver and a Laurel street car, at the corner of Annunciation and Sixth Streets.

Plaintiff avers (about ten o’clock at night) the automobile was going in Sixth Street from the river and the electric car was going up Annunciation Street toward Audubon Park; plaintiff’s left leg was broken and permanently shortened and he claims the following damages:

For the permanent shortening of his leg --------“---------------------$13,000.00

For the impairment of his constitution and weakening of his nervous system ...... 2,000.00

For pain and suffering endured 7,000.00 For loss of wages ________________________ 665.00

$22,665.00

The negligence of defendant is set forth as follows:

1st. That defendant had torn up the street between the rails of its track in the course of certain construction work at or near Annunciation and Sixth Streets, and had piled material and dirt at the corner in such way as to leave a passageway over Annunciation wide enough for only one automobile to cross at a time, the piles of material and dirt being sufficiently high to obstruct the view of an automobile driver coming from the river and prevent his seeing vehicles approaching Sixth Street from the Canal Street side.

2nd. That, disregarding a sign to go slow, the motorman ran the car over Sixth Street at a speed in excess of thirty miles an hour.

3rd. That the motorman gave no signal whon approaching Sixth Street.

4th. That the brakes of the car were defective.

Defendant denied the allegations of damage and of fault, and averred that the cause of the collision was the negligent operation of the automobile in which plaintiff was riding; defendant also charged that plaintiff was himself negligent, and, therefore, was himself responsible for the injuries he received in that he did not warn the driver of the automobile of the danger of crossing the tracks in violation of the city ordinance, and in that he had his leg extended beyond the body of the automobile.

We briefly summarize the testimony of the. various witnesses:

J. H. Graham, on behalf of plaintiff, driver of the old Ford touring car, Model 1921 or 1923, which was owned by Sydney Casserino, said that he was driving in Sixth Street toward river, stopped with front wheels on first rail, heard someone shouting, looked for car, saw it about fifty feet distant, .coming at twenty-five miles per hour, didn’t back off but tried to beat the car across when auto was struck at rear end and thrown against post at upper lake corner. Car, which was crossing track about ten miles per hour, stopped with rear end at property line, uptown side Sixth Street. Could not see down Annunciation before getting on rail because of the piles of dirt and a shed, dirt pile five feet high, shed eight feet from ground. Eyes of driver of auto about five feet from ground. Annunciation Street is about twenty-five feet wide; about eight feet from curb to first rail of track; from driver’s seat to front of radiator is about four and one-half feet, one length of cross ties had been placed between the rails, even with the tracks, so as to form a level crossing.

Albert Hoffman, a friend of the owner of the automobile, said that he was standing under the shed at the corner of Sixth and Annunciation Streets, saw the automobile come and check speed for the crossing, and that when they saw the car it was on top of them, but they tried to “make it over.” Dirt was piled about five feet high; motorman did not give any signal. He and friend were walking along downtown side of Sixth Street and were waiting for the automobile to cross Annunciation Street so that they could go on to Magazine Street. When they started to cross the automobile was near Chippewa Street and when they were ready to cross the automobile was near Annunciation Street. The driver of the automobile brought the car to a stop two feet from the car track and then went ahead; he did not see the street car until the moment of collision. He could see the top of the street ear over the mud piles; the car was lighted.

Max Piegler, friend of Hoffman and of the owner of the automobile, said that he was talking with Albert Hoffman under the shed at Annunciation and Sixth Streets. He saw the automobile coming out Sixth Street, it stopped for the crossing and wen't over; it was not going fast. There was some dirt piled in the street on the riverside of the car track, the piles were about four or five feet high. He and Hoffman did not stop under the shed any appreciable time; the street car was coming up Annunciation Street and the automobile coming out Sixth Street. As they started across Annunciation, the street car was at Washington Avenue. Had no difficulty in seeing the street car over the piles of mud. The car was coming at a speed of twenty to twenty-five miles an hour. When he saw the car at Washington Avenue the automobile was about a half block from Annunciation Street coming about ten miles an hour. When the auto was about eighteen feet from Annunciation Street he blew his horn; he stopped the automobile eighteen feet from Annunciation Street, blew the horn and went on, went over the car track at ten to twelve miles an hour; the automobile had not reached the corner when the street car was about at the lower side of Sixth Street, and he saw there was bound to be an accident. The automobile was hit in the side in the back where the door opens. The car stopped, partly blocking Sixth Street. When the automobile was crossing Annunciation Street the car was moving about fifteen miles an hour.

Eug. Lapouble, District Superintendent in Department of Public Works, said he was walking along the lower side of Sixth Street toward Annunciation Street. The automobile passed him at the lake corner of Chippewa Str.eet and he had reached about one hundred feet when he heard the noise of the collision. There was a fourteen-foot (or the length of two cross-ties) bridge over the open track work at Annunciation and Sixth Streets.

Harold Raymond, a friend of Carlino, said he was on the right side of the rear seat of the automobile, with Car-lino on the left side of the seat. They were travelling out Sixth Street and when they reached Annunciation the driver brought the automobile practically to a stop and then crossed at about five miles per hour; as he was crossing the tracks the street car struck the automobile; the car was running fifteen to eighteen miles an hour. He did not see the street car until it was practically on top of the automobile; when stopped, the rear end of the car was ten feet past the upper side of Sixth Street.

The automobile was crossing the tracks at two to three miles an hour; it had been brought to that speed when about four feet from the track; at that speed it can be stopped in a foot.

Sidney Casserino, the owner of the automobile, said that he was seated with the driver on the right hand side. When he reached the corner of Annunciation they stopped. The driver could not see the street car because of the dirt piled in the street on the riverside- of the car track. Not' seeing the street car the driver of the automobile proceeded across the tracks and, as the front wheels were on the track, the driver saw the car which was then about five to ten feet from him. No signal was given by the motorman. The car struck the automobile and knocked it against a lamp post at the uptown lake corner of the crossing. 'The car stopped with its rear end about. five feet beyond the property line on the upper side of Sixth Street. Does not' know whether the driver of the automobile looked toward Washington Avenue before going over the tracks. The front wheels' of the automobile would have to be on the first rail of the track before one could see a car coming. The automobile was stopped with its front wheels on the wooden foot bridge on river side of Annunciation Street, and then proceeded over after sounding the horn. The automobile was struck on the side. The shed at downtown river corner of Sixth and Annunciation Streets is about eight feet high at curb of sidewalk; the head of the driver of the automobile was about a foot higher than the pile of dirt, could see down Annunciation Street about twenty-five feet, the shed and the pile of dirt would prevent him • seeing a greater distance down the track. A Ford traveling at five miles an hour can be stopped in about two or three feet.

Thomas Carlino, plaintiff, said that he got into the automobile at Chippewa and Sixth Streets; the automobile was traveling between twelve and fifteen miles an hour until it reached the dance hall in middle of block between Chippewa and Annunciation Streets and from there to Annunciation Street the speed was about three miles per hour. The automobile was stopped on the bridge where people walk (over Sixth Street along river side of Annunciation Street); the horn was sounded and the automobile was started across the street. He did not see the car coming because the man seated next to him was taller than he. Automobile was on track, when he saw car about five feet from the automobile. Because of the crossing the automobile could not' go fast. His legs were inside the automobile. The collision caused his knee to hit the back of the front seat and twist his leg so that it broke. The motorman did not sound the gong. When the automobile stopped on the bridge the driver’s seat would be about six feet from the track, even with the sidewalk. The mud and the shed would prevent the driver of the automobile seeing a street car coming up Annunciation Street. The driver’s head would be about four or five* Feet from the ground; the shed was about eight feet high at the sidewalk curb-. He does not know if the driver looked to see if a car was coming; he looked, but could not see any car; he could see half a block down Annunciation Street.

Marzloff, who was standing on front platform, says car stopped at Washington Avenue to let off a passenger, motorman rang his .bell about fifty feet from Sixth Street and was slowing down to let off passenger at upper side of Sixth Street, when auto, going at moderate speed, ran in front of street car without stopping or looking, auto was struck on side at right rear end and knocked up against post on upper wood side of Sixth Street, car stopped so that its rear end was about middle of Sixth Street, heard no auto horn, thought it was on car track when he first saw it.

Track was in good condition, car, which was crowded, was going at moderate speed, “motorman had his juice thrown off and was working his air brake when auto loomed up,” was looking ahead, motorman rang his bell to warn people on corner, who were running toward gutter and “hollering;” auto was not more than six feet from car at the most, when he first saw it. After the accident driveway was blocked by the street car, and fender of car damaged. Immediately after the accident, auto could not go out Sixth Street, because rear end of street car was blocking driveway. Saw a passenger, Mr. Lehmann, in the car, knew where he lived and thought that he would get off at Sixth Street and when he heard the bell ring to stop at Sixth Street took it for granted he would get off. “It was impossible for motorman to stop quick enough to avoid hitting the auto.”

Panquerne, shoe salesman, who was on rear platform of car with Oyster, speaking to conductor, says car was not crowded, car, which had stopped at Washington Avenue, had a passenger to get off at Sixth Street; thinks car was going eight or ten miles per hour. Rear end of car, when he heard crash, was on lower side of Sixth Street, and after the accident rear end of car was blocking Sixth Street with front end six or eight feet past the corner and auto up against telegraph pole, particularly heard gong ringing near Sixth Street, because streets were torn up, traffic is heavy over Sixth Street all the time; a passenger was abouc to unboard the car at Sixth Street; car, wlj.ich was making a little noise, did not hit auto a very violent blow, top of auto was all broken and back Wheel.

Englebracht, wood turner for New Orleans Furniture Co. for twenty years, was passenger on car occupying third seat from front on left side; when car was slacking up to stop at Sixth Street to let passengers off because of reconstruction of track, saw auto ■ just about a fraction of a second before impact about thirty feet from car, coming at a pretty fast speed, front end of car after accident was eight or ten feet beyond gutter at upper corner and back end was below lower sidewalk, just enough for an auto to go down Sixth Street, but it could not pass to go around; positive he heard motorman ring his gong; looked out of the window opposite his seat after accident, and auto was along side, about a foot in rear; doesn’t think it was the hit of the car that knocked the auto to the post, but the speed of the automobile; trolley may have been off as lights were out; mud was thrown on uptown side of Annunciation Street; front part of street car was just about downtown gutter of Sixth Street when he first saw auto, which -was going at a pretty fast clip, impossible for car to stop, did not hear auto horn, but positive heard gong near the corner; was an ex-conductor and knew by the momentum of car that it was going to stop; doesn’t recall hearing gong at Washintgon Avenue, but positive he heard it near Sixth Street; there was a red light on upper river side of Sixth Street.

King, mechanic, was in front of dance hall on downtown ,side of Sixth Street between Chippewa and Annunciation, saw auto pass, going very fast; went at once to scene of accident and found auto against post and back of street car in middle of Sixth Street; only saw one auto pass.

Gus Lehrmann, laborer, lives at 619 Sixth Street, was passenger, after car had passed Washington Avenue fifty or one hundred feet, rang bell, went back and stood, on rear step to get off at Sixth Street; got off car, which was blocking Sixth Street, after it came to a stop, about two or three feet past lower bridge on Sixth Street; they were repairing track between Washington Avenue and Sixth Street or Sixth and Seventh Streets, not certain; “motorman sounded gong and slackened speed to let me off.” There was no car behind this one; a gentleman got on at Washington Avenue; doesn’t know whether gong sounded at Second, Fourth or Washington, as he wasn’t paying attention, but certain it sounded at Sixth Street, because he was on step; is fifty-nine years old and has been riding on cars a long time; saw auto against post; there was light on corner, but didn’t notice trolley; heard one man holler; if blow had been hard, he would have })een knocked off step; post, on uptown lake corner, against which auto struck, was not twenty feet from middle of intersection; no auto could pass after accident as Sixth Street was blocked by car; front end was ten feet beyond upper sidewalk curb of Sixth Street when car stopped.

Assenheimer, .employee of Lukens Steel Company, was standing in front end of car, between the doors facing uptown, first saw auto going about twenty-five or thirty miles per hour on river side of crossing of Sixth Street where people walk, when street car was about ten feet from lower side of Sixth Street, rear part of auto about a foot in front of back wheel was hit by headlight of car; Sixth Street was blocked by the car. Car was coming to a stop at Sixth Street; motorman sounded his gong about twenty-five feet from corner; saw Marzloff on front platform, but did not speak to him; lights on car went out after it hit the auto until trolley was put back on; he has driven a car about eight years; Sixth Street was in good condition, but car t-rack was torn up in intersection; didn’t hear auto horn, although it was only fifteen feet from track, when he first saw it. Car had stopped at Washington Avenue; they were digging up the tracks on uptown ¿side of Sixth Street and there was a pile of mud about a foot high on the lower river side of Sixth Street; gave his name voluntarily to conductor; there was a red light on the uptown side of Sixth Street; didn’t notice “Go Slow” sign between Washington Avenue and Sixth Street.

Serón, night clerk for Consumers Biscuit Company for four years, was standing on front platform on right side of motorman, saw auto approaching fast about ten feet from car track as car coming ato a stop approached Sixth Street, after accident part of car was in Sixth Street and greater part in next block; gave name to motorman or conductor; motorman gave regular gong signal about twenty-five feet from corner, after he got bell to stop; jumped back, turned his head when he saw accident was about to happen; there was certainly one other person on front platform, but he didn’t pay any attention to him; didn’t see Assenheimer in the front end of car; saw motorman apply brakes about ten feet from curbing on Sixth Street; couldn’t say how fast car was going. Motorman fed his car up to seven or eight points; used to be a conductor, but was discharged for shortage on register; auto was knocked against lamp post, didn’t notice condition of track; automobile couldn’t pass in Sixth Street after the accident because car was in the way; motorman apparently had no trouble with his brakes; motorman after seeing auto put on his brakes and stopped before he reached uptown corner of Sixth Street, where he intended to stop.

Sipansel, New Orleans motorman since January 11, 1926, in citizen clothes on front end of car, right hand side, saw auto about five feet from river side sidewalk line of Annunciation Street coming at a fast. speed about twenty miles per hour; when front end of car was about ten feet from lower footwalk on Sixth Street, motorman, who had heard the bell, was bringing his car to a stop at Sixth Street; auto driver, when he saw street car so near, tried to beat it across; right hind wheel of auto was struck and trolley of car was knocked off; after accident second window of car from front was on upper foot crossing of Sixth Street; helped raise car fender, which was badly bent; heard motorman sound his gong about twenty or thirty feet from lower Sixth Street; two or three passengers were on front platform; car was crowded, another car pulled up behind' the car about ten or eleven minutes after accident. About twenty feet from the lower side of Sixth Street car was going about ten miles per hour and the car could stop in sixty to seventy-five feet. There was a sign “Go Slow” stuck up in the mud on the river side of Annunciation Street, facing the way you come up. After accident auto was facing downto/wn.

Conductor Auster, in citizen clothes, was on rear platform talking to Panquerne and the conductor of the car that struck the automobile, when he wasn’t busy; car stopped at Washington Avenue, a (passenger got up and walked back about middle of block; conductor gave, a signal to stop at Sixth Street; the motorman threw off his power and just as car reached middle of Sixth Street, he heard a crash; got out and saw auto up against post; second window of car from front was about opposite uptown crossing of Sixth Street and rear end of the long car about six or seven feet from lower crossing of Sixth Street, which was completely blocked for automobile usage by the street car; that is a dangerous street and he paid particular attention to the motorman ringing his gong. “I have been on the cars a length of time and I can pretty well tell when the motorman has thrown oh his power and is coasting.” There are vehicles coming in and out Sixth Street at all times and for that reason car is supposed to be under control; made an examination after he got names of witnesses and cross ties were even with rails; car coasting eight to ten miles an hour when it got to lower side of Sixth Street, ¡preparing to stop. These cars, going at that speed, can stop in sixty or seventy-five feet; at the time of the impact, car was going five miles per hour, trolley did not go off and lights did not go out.

Wingerter, conductor since March 1, 1921, was in charge of the. colliding street car, swears car stopped at Washington Avenue, doesn’t know whether motorman sounded his gong, heard crash about time front end of car reached center of Sixth Street; trolley flew off and he found auto up against post at corner on uptown wood side of Sixth Street, rear end of car was in center of Sixth Street, passenger signalled and he gave motorman bell to stop and he began to check his car about a quarter of a block from Sixth Street and it was going about ten miles an hour as it reached lower side of Sixth Street. The motorman was an extra man and that was the first day he worked wifn him.

Chatelain, motorman of colliding car, comes from Marksville and speaks French chiefly, at time of trial was employed by Bancroft Steel Co., worked for street car company eight or nine months and doesn’t remember how long he had been motorman before this accident, but he was then an “extra” motorman, that is one who takes place of a regular employee when he is absent; car had stopped at Washington and he had received signal to stop at Sixth Street about two hundred feet from corner, had cut off power and put on his brake to stop when he got about ten feet from Sixth Street saw auto coming pretty fast, about twenty or twenty-five miles per hour; about twelve or fifteen feet from track, he then put on his brake as hard as he could. “The auto made a little curve like to protect the accident and his front wheel hit the fender of the ear and the auto hit the post;” car rolled a few feet after accident and stopped with front end about ten feet over Sixth Street' and back end not quite in middle of. Sixth Street; couldn’t possibly have stopped sooner after he saw the automobile; had been a jitney driver in Marksville before he came to the city and had been working on that line just' one day, but. doesn’t remember how long he had been employed as a motorman. Two or three (people were on platform, but not talking to him. “I believe I was five or six minutes late, I am not sure.” Didn’t have shades down, but could read all the rules of the company in English and had operated many cars; can stop a car going ten miles per hour in sixty to ninety feet; was discharged about two or three months after this accident, was hitting his gong as he approached Sixth Street.

Cummings, track foreman for defendant for fourteen years, who was reconstructing track on Annunciation Street between Washington Avenue and Ninth Street, says his force stopped work at five-thirty and he stayed around a while to see that all was o. k., identifies the plan in the record as about correct, had finished and closed the track work within twenty-five feet of Sixth Street; had made a roadway of two lengths of ties placed end to end sixteen feet wide in Sixth Street; there was a small dirt pile on the uptown river side of Annunciation Street and a larger one, not more than four and one-half feet high, about seven feet wide at base on the downtown side of the same street, both in Sixth Street; there was a red light on both dirt piles, one on the foot crossing and one on the traffic cross, ties were level with the rails, shed on lower river corner of Sixth and Annunciation Streets was about twelve feet high and there were a dozen lights between Sixth and Seventh Streets; watchman Ralston was on the job that night and he would have reported if lights were not burning.

Cronan, claim agent of defendant, went to scene of accident the. next day, Sunday morning, and made measurements, sidewalk on Sixth Street is ten feet, that on river side of Annunciation is eight and one-half feet, distance from that sidewalk to river rail is ten and one-half feet, gauge of rail five and one-quarter feet, and distance from lake rail to lake sidewalk ten and one-half feet, and width of lake sidewalk on Annunciation Street' is eight fe«t, two inches, width of roadway on Sixth Street is twenty-nine feet, five inches; and width of sidewalk on lower side of Sixth Street is ten feet, two inches and on upper side eight feet, two inches; shed fronts thirty feet on Annunciation and eighteen feet on Sixth Street; his were in middle of Sixth Street; (pile of mud on lower side of Sixth Street was about three feet. As he approached Annunciation from river on Sixth Street, just before he got to the foot crossing, he looked under the shed and could see down to Fourth Street; didn’t measure exact locations of mud piles, just estimated; lower part of shed was about ten feet high, supported by posts; plan in record was copied from a pencil drawing made by him.

Woodruff, employee of defendant, states length of those cars is forty-seven feet, eight inches and weigh eighteen tons.

Although the track was undergoing reconstruction, the passageway over the rails was sufficient for automobile use. The piles of dirt relied upon by plaintiff as showing fault did not cause the accident, for it is established by the evidence that the pile of dirt was not high enough to obstruct the chauffeur’s view of the oncoming accident.

The charge that the speed of the car was in excess of that allowed by law and negligent is not established, for the (preponderance of the evidence is to the effect that the car was being brought to a stop at Sixth Street to discharge a passenger and was, in fact, stopped before reaching the regular stopping place, so as to block Sixth Street for automobiles. Had the car been travelling at thirty miles an hour the car could not have been stopped so quickly.

The charge that no warning was given of the approach of the car is not established, for the preponderance of the evidence shows that the gong was sounded.

Nor is the charge that the brakes were in bad condition proved, for the only evidence on the subject is that they were in good order.

The above digest of the evidence shows clearly that the driver of the auto was negligent as he frankly admits that he drove upon the' track without stopping.

The sole question before this Court is whether the motorman had the last' clear chance to avoid the accident, for the negligence of the chauffeur cannot be attributed to the guest.

See Peterson vs. Railway Co., 142 La. 835, 77 So. 647.

The law applicable is stated by the Supreme Court in the case of Ortolano vs. Railroad, 109 La. 902, in these words:

“The precautions to be adopted and the steps to be taken in the aid of safety increase as the danger of accidents, and injury is increased.”

The fact that the auto was turned around and thrown against the post near the uptown lake corner of Sixth and Annunciation Streets is explained when we consider that the width of Sixth Street from curb to curb is only twenty-nine feet, five inches and the width of Annunciation from curb to curb is only twenty-six feet, three inches as shown by the record. The resultant effect of the combined force when the Ford car going at least ten miles per hour was struck on right rear wheel by the heavy street car weighing eighteen tons, though going slowly, would naturally swing the rear of the auto violently around in the direction it was going.

We are convinced that the plaintiff has failed to prove that the motorman was negligent under all the circumstances and the judgment will be reversed.

The following words of the Supreme Court' in McGinn vs. N. O. Railway & Light Co., 118 La. 822, 43 So. 450, are pertinent here:

“The actual cause set up has been negatived by the testimony. Were the facts such as plaintiff’s counsel claims them to have been, the jury should have accorded plaintiff a larger amount than it did. The verdict was evidently a sympathetic one. Juries cannot be sustained in indulging sympathy on insufficient evidence at the expense of other persons.”

For above reasons the judgment is reversed and the suit is now dismissed.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    First Circuit
    No.-
    SANDERS v. DANTONI
    (February 15, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Refused.)

      (Byllabus by the Editor)

    1. Louisiana Digest — Taxation—Par. 283, 333.
    Notice of tax delinquency to the record owner is a necessary jurisdictional pre-requisite to a tax sale.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Pharis Sanders against Vincent S. Dantoni.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Reid & Blache; of Hammond; attorneys for plaintiff appellee.
    Rownd & Warner of Hammond, attorneys for defendant, appellant.
   MOUTON, J.

In February, 1922, plaintiff acquired a lot of ground in the City of Hammond, from James B. Arnold. In 1925 the property was sold at tax sale for the taxes, of 1924, and was bought in by the defendant, Vincent S. Dantoni. This suit is brought by plaintiff to annul this sale.

It is well established by the record that plaintiff was the record owner in 1924, and also that he was living on the property at that time. It is shown that notice of delinquency for the taxes that were due on the property for 1924 was' given to Arnold from whom plaintiff had acquired, but that no such notice was sent to or received by plaintiff.

This notice of delinquency to plaintiff,, then record owner, was a jurisdictional pre-requisite to the tax sale.

The failure to serve this notice on plaintiff was fatal to the sale, and which was properly annulled by the District Judge. Recker vs. Dupuy, 161 La. 392, 108 South. 782. Plaintiff was correctly decreed owner of the property.


author: WESTERFIELD, J.

text:
    No. 11,110
    Orleans
    BRESSLER v. FREEMAN
    (January 30, 1928. Opinion and Decree.)
    (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact is. amended when clearly erroneous as to amount of judgment.
    Appeal from First City Court, Section “B”, Hon. Val. J. Stentz, Judge.
    Action by Max: A. Bressler against Abraham D. Freeman.
    There was judgment for defendant and (plaintiff appealed.
    Judgment amended and affirmed.
    Weiner & Roos of New Orleans, attorneys for plaintiff, appellee.
    Carbajal, Guidan & De Reyna, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a landlord against his tenant for alleged damages to the leased premises during the tenancy. The lower court allowed $143.45.

The lengthy record, which we have been obliged to read, does not. indicate manifest error in the judgment appealed from. It appears, however, that the court overlooked a stipulation in the lease calling for 10% attorney’s fees in the event of suit. The amount allowed must be increased by $14.35 and, as. thus amended, the judgment is affirmed.


author: JONES, J.

text:
    No. 10,022
    Orleans
    UNITED WAREHOUSE COMPANY, LTD., v. ILLINOIS CENTRAL RAILROAD COMPANY
    (January 16, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    Only questions of fact are involved and the trial judge found correctly that plaintiff had failed to prove his case.
    Appeal front Civil District Court, Div. “B”, Hon. Mark Boatner, Judge.
    Action by United Warehouse Company, Ltd., against' Illinois Central Railroad Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    McCloskey & Benedict, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

The United Warehouse Company sues the Illinois Central Railroad Company for Seventeen hundred fifty-nine and 00/100 ($1759.00) Dollars, with legal interest thereon, from November 12th, 1921, on the following allegations:

Plaintiff is the owner of a warehouse situated in this city, in the square bounded by St. Joseph, North Diamond, Fulton and South Peters street, which it erected in the year 1910. The defendant’s tracks in St. Joseph street and in N. Diamond street at the time of the erection of said warehouse, were below the grade of its floor; from time to time, between the year 1910 and the year 1921, the grade of the tracks of the defendant was raised without the knowledge and consent of the city authorities, and by February 25th, 1920, it was eight and three-fourths inches above the level of the warehouse floor.

The raising of these tracks caused an artificial basin to be created in Fulton street, between St. Joseph and N. Diamond streets, with .the result that the floor of the warehouse was overflowed, and to protect itself the plaintiff erected mud levees within its walls to keep out this flood water and finally raised the grade both of the sidewalk and of the flooring of the building, which cost Seventeen hundred fifty-nine and 00/100 ($1759.00) Dollars, the work having been completed on October 29th, 1921.

Plaintiff further alleged that defendant was duly notified of the damage caused by the elevation of its tracks, but refused to make proper reparation and is, therefore, liable for the cost of raising the floor and the sidewalk.

Defendant answered denying that raising of track was done without the consent of the city and averred that the city had notice thereof and made no objection thereto. It also denied that the raising of the track caused plaintiff any damage. It admitted receiving a letter of complaint from plaintiff, dated February 25th, 1920, and in response thereto its resident engineer explained to plaintiff that no act of defendant affected the drainage, but to satisfy plaintiff, it would install at its own expense a drain underneath the track at Fulton and St. Joseph streets. Plaintiff declined this offer, stating that it preferred to raise the floor of its warehouse and requested defendant to furnish it with sufficient filling free of cost.

Defendant averred that it received a letter from plaintiff, dated February 16th, 1921, stating that it had decided to put a concrete floor in its warehouse and demanding defendant’s cooperation in the work; that upon receipt of this letter, its resident engineer, road master and superintendent, along with City Engineer John Klorer and Assistant City Engineer Valias, went to plaintiff’s warehouse and discussed the matter fully with the secretary and treasurer of the plaintiff cpmpany; that the City Engineer then showed that since April, 1920, the city had installed subsurface drainage and three large catch-basins alongside the warehouse, which were amply sufficient to carry off all the water after a heavy rainfall. The city engineer further stated that additional catch-basins would be furnished, if there should be further trouble. Defendant finally alleges that since the installation of these catch basins there has been np further trouble and pleads the prescription of one year as this suit was not filed until August 29, 1922.

As the question is purely one of fact and as the allegations of defendant’s answer are abundantly proved, it would serve no useful purpose to analyze the voluminous evidence, as the conclusion inevitably follows that plaintiff has failed to prove his case by a preponderance of the evidence. Moreover, the record shows that the alleged flooding of the warehouse floor commenced back in 1912, when the track of defendant was below or on a level with it, that the natural flow of drainage was then and has always been down St. Joseph street from the river to the lake, and there is absolutely no proof that the elevation of defendant’s track ever caused any increased' flooding of the warehouse floor.

For above reasons the judgment is affirmed.


text:
    No. 11,101
    Orleans
    PIERCE v. LIBERTY INDUSTRIAL LIFE INSURANCE CO.
    (January 20th, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Insurance—Par. 80, 104.
    Under Act 97 of 1908, the failure of a life insurance company to make medical examination of insured before issuing policy raises presumption of waiver of all questions of health and precludes such a defense.
    Appeal from First City Court, Division “C”. Hon. Wm. V. Seeber, Judge.
    Action by Mrs. Albertina Pierce, widow of James Hall, against Liberty Industrial Life Insurance Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Norman, Breckwoldt & Schwartz, of New Orleans, attorneys for plaintiff, appellee.

      Guión, Upton, Ogden, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This suit was brought by the surviving widow, beneficiary under an insurance policy on the life of James Hall. The defense is that the deceased fraudulently concealed the fact that he was suffering with syphilis at the time policy was issued and there was no contract.

The policy, which forms part of the record, bears date March 8th, 1926, and it was agreed between counsel as follows:

(1) There was no medical examination of the insured prior to the issuance of the policy.

(2) That the agent of defendant collected premiums on said policy.

(3) That the proof of death showed cerebral spinal syphilis as cause.

(4) That if any amount is due under the terms of the policy, all that could be recovered would be the sum of one hundred thirty-six and 50-100 ($136.50) dollars.

Counsel for defendant placed upon the stand Dr. R. L. Gordon, a genito-urinary specialist, who, after admitting that he had never seen deceased, testified over the objection of plaintiff’s attorney that syphilis constitutes what is known in the medical profession as a venereal disease and that it would be a medical rarity for a man to contract syphilis and die from a condition known as spinal cerebral syphilis within a period of six months, as not one case in 500,000 died in so short a time; death due to this cause usually takes from five to forty years.

The proof of death shows that the insured died on September 22, 1926, about six months after the issuance, of said policy.

Article 6 of the General Provisions of said policy provides as follows:

“This policy shall also be void if assigned, or if the Insured, before its date, has been rejected for insurance by this or any other company, or before said date has been attended by a physician or has suffered from any scrofula or tubercular disease or consumption, or chronic bronchitis or cancer or epilepsy or any disease of the brain or heart or the liver or the kidneys, or of any venereal disease * *

Under the terms of above article, defendant contends that the policy was null and void.

Counsel for plaintiff argues that under the terms of Act 97 of 1908, defendant is estopped from setting up any defense as to the condition of the insured at the time of the issuance of the policy for the reason that no medical examination was made of the insured.

Defendant attempts to answer this argument by saying that the act relied on applies only to answers of insured to questions contained in the application for insurance, but has no bearing on stipulation contained in the policy.

Unfortunately defendant’s contention has been decided adversely to him in the very recent case of Silver vs. National Life & Accident Insurance Co., 6 La. App. 95, where the facts were strongly analogous to the present.

In that case, after mature consideration of defendant’s present argument, this court held that the failure of the Life Insurance Company to require a medical examination before issuing policy and accepting premiums precludes defensd of then existent illness. Later the Supreme Court refused a writ.

For above reasons the judgment is affirmed.


author: WEBB, J.

text:
    No. 3135
    Second Circuit
    AUGUSTIN v. LOUISIANA RAILWAY & NAVIGATION CO.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (April 9, 1928. Writ Refused.)

      (Syllabus by the Court)
    ON MOTION TO DISMISS
    1. Louisiana Digest — Master and Servant —Par. 160 (i), 160 (I).
    Where suit is brought under Employers’ Liability Statute (Act No. 20 of 1914) and, in the alternative, to recover damages under the Federal Act, the case clearly coming under the Federal statute, the Court of Appeal has, under the practice, the right to dismiss the alternative demand as of non-suit.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. L. P. Gremillion, Judge.
    Action by Adison Augustin against Louisiana Railway & Navigation Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    Bordélon & Norman, of Marksville, attorneys for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

This action was initiated to recover judgment against the defendant for compensation under the State Employers’ Liability Statute (Act No. 20 of 1914) and, in the alternative, to recover damages under the Federal Employers’ Liability Statute.

The defendant, following the usual practice in compensation suits, incorporated in its answer an exception of no cause of action and, under reservation of its rights thereunder, denied plaintiff’s allegations as made, with relation to both demands. -

On trial, judgment was rendered rejecting plaintiff’s demands, from ■ which he appealed.

In this court the plaintiff and appellant moved to dismiss the appeal as of non-suit, which was objected to by the defendant and appellee, and before considering the appeal we will first consider the motion to dismiss the appeal as of non-suit.

In that connection we do not find any authority which authorizes this court to dismiss the appeal as of non-suit.

The Code of Practice, Article 491, provides that:

“The plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs.”

And we consider the motion made by plaintiff and appellant to dismiss the appeal as of non-suit as analogous to a motion to discontinue, and considering that there was not any motion made in the trial court previous to judgment, it would have been without authority to discontinue the suit after judgment (Trenchard vs. N. O. Ry. & L. Co., 123 La. 36, 48 So. 575), and this court is likewise without authority to discontinue it on motion, and the motion to dismiss is overruled.

Considering the appeal: the evidence concededly establishes that the State Employers’ Liability Statute is not applicable (Hamilton vs. La. Ry. & Nav. Co., 162 La. 841, 111 So. 184; Porter vs. Lancaster, et al., Receivers, 2 La. App. 47); and it does not establish liability under the Federal statute, and the only objection to the judgment suggested by the appellant is that the court was in error in rejecting his alternative demand rather than dismissing it as of non-suit.

While if the appellate court has not the authority to discontinue the suit on motion of plaintiff and appellant, it may be said that it would also be without authority to dismiss it as of non-suit, but without considering the distinction, the practice has been to dismiss the plaintiff’s suit as of non-suit, rather than to reject his demands, where it appears that his failure to obtain judgment was due to the insufficiency of the evidence, which defect might be supplied (State, ex rel. Albritton vs. Grace, 139 La. 19, 71 So. 203; La. Ry. & Nav. Co. vs. Lawrance, 2 La. App. 440), and where the failure of the plaintiff to establish his case may have been due to his inability to introduce evidence, due to the insufficiency of his pleadings, we think that the same rule should he applicable, the effect, however, of the dismissal to be the same as if the suit had been dismissed on exception of no cause of action.

However, the record shows that the plaintiff knew of the deficiency of his pleadings prior to the cause being submitted, and we think he could have taken a voluntary non-suit on the alternative demand, and that the defendant should not be cast for the cost of the appeal.

It is therefore ordered that the judgment appealed from be amended so as to dismiss the alternative demands of plaintiff as of non-suit, and as amended the judgment be affirmed; the plaintiff to pay all costs in both courts.


text:
    No. 10,641
    Orleans
    MARTIN v. ZATARAIN
    (March 12th, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 7.
    A girl twenty years old is not guilty of contributory negligence, when she stops three or four feet off the neutral ground to let a truck pass, which was coming in the middle of a thirty-foot roadway about twenty miles per hour about forty feet distant from her.
    2. Louisiana Digest — Automobiles — Par. 4 c, 9.
    The driver of an automobile about twenty or thirty feet behind the truck, who had seen the girl when he was forty or fifty feet from the corner, was negligent in striking the girl, and a judgment for twenty-five hundred dollars for plaintiff will be affirmed, when evidence shows she was in the hospital two and one-half months, and must wear a plate in the broken bone all the rest of her life, with one leg three-fourths of an inch shorter than the other, and walk with a limp.
    Appeal from Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by Robert Martin et' al. against John Zatarain.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    James G. Schillin, of New Orleans, attorney for plaintiff, appellee.
    A. A. Moreno, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit by Robert Martin and his wife, on behalf of their daughter, Leathy Martin, against John E. Zatarain for ten thousand ($10,000) dollars, for injuries sustained by her on July 11th, 1925, when she was struck by an automobile of the defendant. There was judgment in favor of the plaintiff for twenty-five hundred ($2500) dollars, from which defendant has appealed.

The petition alleged that on July 11th, 1925, about 11:30 A. M., Leathy Martin was crossing Howard street at the intersection on the uptown pathway of Washington Avenue, going in the direction of the woods; that Howard street is divided by a neutral ground, on each side of which there are roadways about thirty feet wide; that plaintiff had already crossed the neutral ground, which is about twenty-five feet wide, and had taken two or three steps into the uptown right-df-way of Howard street and had come to a complete stop to permit an automobile truck going uptown to pass; the defendant, who was driving his automobile uptown at an unlawful rate of speed, could not stop when the truck in front of him stopped, and therefore swerved his automobile suddenly to the left, struck the plaintiff and dragged her for about fifty feet from the intersection of Washington Avenue; that as a result of the accident petitioners’ daughter suffered a fracture of the lower third of the femur or thigh bone. Petitioners claimed damages in the sum of five thousand ($5000.00) dollars for pain and suffering and five thousand ($5000.00) dollars for permanent impairment of the right leg.

Defendant admitted that he was proceeding up Howard street behind the truck as alleged, but denied thaf he was going at an unlawful rate of speed, and further averred that the accident was due solely to the fault of the injured girl, who suddenly stepped from a safe place on the neutral ground in front of the approaching automobile of the defendant, in such close proximity that it was impossible for the defendant to stop in time to avoid striking her. Defendant further averred that if she had looked she would have seen the automobile, and, in the alternative, that, if she did look and see the automobile of the defendant, she was negligent in attempting to cross its pathway.

The first witness for the plaintiff, Mitchell Jackson, forty-two years old, who had been a letter carrier for eight years, testified that, at the time of the accident, he had left his wagon on the river side roadway of the neutral ground, and had crossed the street to go to the lake side of Howard street, for the purpose of making a delivery, and was standing on the pavement, “about a couple of feet on the neutral ground”. He says:

“At that time I saw coming a paper truck; I can’t say whether ij; was an Item truck ior a States truck; and they were coming out at a heavy rate of speed. The truck was behind and when the truck got to Washington street, in between the two corners, it came to a sudden stop. Of course, it had to deliver papers at the drug store. At the time they came to a stop Mr. Zatarain was coming behind the truck, and to avoid running into the paper truck Mr. Zatarain swerved to avoid running into the paper truck, and this young lady was standing two or three feet off the neutral ground and Mr. Zatarain swerved; and this young lady being two or three feet off the neutral ground, Mr. Zatarain struck her, and what saved the young lady was she fell between the fender and the radiator and Mr. Zatarain dragged her seventy or eighty feet, and Mr. Zatarain was so excitéd his first word was ‘Who seen it? Who seen it? She is in the wrong.’ At that time there was no one there that gave Mr. Zatarain their name. I was there.”

The witness further states that the driver of the newspaper truck (which he says was proceeding up Howard street ahead of the automobile of Mr. Zatarain) put on his emergency brake when its rear was five feet past the property line of Washington Avenue and stopped with rear six or seven feet off property line of Washington Avenue. Zatarain’s car stopped toward the neutral ground. The day was clear, streets dry and Zatarain swerved toward the neutral ground.

On cross-examination, he' testified that he was about fifty or sixty feet from the corner when he reached the curbing on the neutral ground and at that time the truck was between Fourth street and Washington Avenue, and it might be that it had just left Washington Avenue. He says that he stopped three or four feet in the roadway in order to give the truck plenty of room toi pass, because the Item or States trucks are always speeding; he “had had a contact with a paper truck already”; the truck was coming one hundred feet away from her about four or five feet from the sidewalk curb, when she was standing in the roadway; does not know at what speed the truck was going, but these paper trucks always speed and go thirty-five to forty-five miles per hour in the business section, and it might have been going that fast on the day of the accident; roadway is thirty-five feet wide and defendant’s car was right behind the truck; the truck began to stop between the upper and lower property line of Washington Avenue, which is forty feet wide, and put on his emergency brake; that he does not know how far the automobile of Zatarain was behind the paper truck, but he swerved nearly to the neutral ground.

The injured girl, Leathy Martin, testifies that she was twenty years old; that she had left the lake side curb of the neutral ground in crossing the uptown roadway of Howard on the uptown pedestrian path of the Washington intersection and had made two or three footsteps into the road when she stopped to wait for the truck and the automobile coming behind to pass, which were then between Washington Avenue and Fourth street, and which appeared to be coming about thirty-five miles an hour, both near sidewalk curb; the defendant’s automobile was three or four automobile spaces, that is forty feet, behind the Item truck; the Item truck stopped in front of the drug store, its rear end about five feet above Washington Avenue; she was treated at the Charity Hospital for a broken leg where she remained for ten weeks; she was required to use two crutches for two months after leaving the Hospital; she wore a brace from the time she was discharged from bed; and at the date of the trial, which was approximately eight months after the accident, she was using a brace.

John E. Zatarain, defendant, testified, on the day of the accident, he was driving near the curb of the neutral ground on the lake side of the street about eighteen or twenty miles per hour, when he first saw the plaintiff, she was standing on the uptown lake curb and “she appeared to stop”. As he neared her, “she stopped directly in front of my machine and she first appeared as if waiting for me to pass”; he was about eight feet away when she stepped out of the neutral ground into«, the roadway and, as quickly as possible, he applied his brakes, but, notwithstanding everything he could do, it was impossible for him to avoid striking her; there was 'no automobile proceeding up the street in front of him, but an ice cream wagon was standing in front of the drug store on uptown lake corner.

On cross-examination, lie says that he was about thirty or forty feet away when he saw her standing in the neutral ground, she appeared to be standing still and he did not blow his horn; he had not seen her while she was on the river side of the neutral ground, because there was no occasion for him to look for people on that side of the roadway; if she had looked, she would have been bound to see him, as there was nothing to obstruct her vision, but, notwithstanding, she stepped off the curb directly in front of his automobile about four feet into the roadway, so close it was impossible for him to avoid striking her, notwithstanding he applied his brakes as quickly as possible.

James Arnold, seventeen years old, says he was cranking his big white Item truck in front of the drug store, about twenty feet from the corner, when accident happened; didn’t see defendant’s car or the girl until it struck her and didn’t hear him blow his horn, but knows he was coming pretty fast.

Matthew Lewis, an employee of the Liberty Industrial Life Insurance Company, who at the time of trial had been arrested for murdering his brother-in-law, was standing on uptown river corner of Washington and Howard, across Howard street from the girl, on the neutral ground, says: “She was looking in this direction and just as she finished looking she stepped off, the gentleman blowed his horn and applied the brakes almost about the same time and the Item truck drove to Plach’s drug store”; defendant’s car, which was three lengths behind the Item truck, was in the middle of the intersection, when she stepped from the neutral ground.

On cross-examination he swears again that he positively heard defendant blow his horn; Item truck was going pretty fast, about eighteen or twenty miles per hour, in the middle of roadway, and defendant’s car was behind it; truck cut into the right and suddenly came to a stop about eight or nine feet beyond property line on Washington Avenue; defendant, who was going about eighteen or twenty miles per hour, cut to the left. Truck stopped so close to the curb of Howard that he jumped back to keep from getting hit.

It is thus seen that the testimony of defendant to the effect that there was no truck in front of him contradicts his sworn answer and that of all the other witnesses.

Defendant’s able attorney while admitting this contends that the facts must be found from the evidence considered as a whole.

We accept this contention, but we think that the preponderance of the evidence shows that plaintiff, who had started across the uptown roadway of Howard street, stopped about three or four feet from the neutral ground to let the Item truck and defendant’s automobile pass, that the defendant, who was driving at least fifteen or twenty feet behind the truck, suddenly turned his car to the left to avoid striking the truck, which had turned to the right and put on the brakes to stop in front of the drugstore.

In thus swerving to the left and striking the girl, whom he had seen at least forty feet away, the defendant drove negligently. The evidence shows that Washington Avenue at that point is forty feet wide and the uptown roadway of Howard street is thirty feet wide. If the truck, which had been coming in the center of the Howard roadway, turned suddenly to the right and stopped close to the curb of Howard street, and the girl was only three or four feet off the neutral ground, there was space enough for defendant to pass, if he had been driving carefully.

We believe that Lewis was mistaken when he says defendant sounded his horn, as he approached the intersection of these two busy thoroughfares, because defendant and all of the other witnesses deny any such action on his part.

We do not base this conclusion on the ruling of this court in Henican vs. Woolman, 1 La. App. 281, to the effect that a chauffeur must so regulate his distance as not to collide with a car in front of him in case the latter comes to a stop. That rule is subject to modifications. See Testard vs. Board of Commissioners for the Port of New Orleans, No. 10,213, decided February 12th, 1928.

As to the contributory negligence of the girl in standing on the roadway three or four feet from the neutral ground, and as to quantum, we approve the finding of the trial judge, which reads as follows:

“It is argued for the defendant that the plaintiff’s daughter was herself at fault, because she did not wait on the curb of the neutral ground, where she would have been safe, and because, as she .stepped into the roadway, or while she stood there, just before the accident, her head and gaze were turned to her left, away from the direction of the defendant’s approach. The defendant’s counsel are wrong in supposing that the traffic ordinance forbids pedestrians to stand in roadways at intersections, the language in their brief being taken, inadvertently, from an older ordinance, and having been omitted from the one in effect at the time of the accident. Of course, pedestrians have the right to cross roadways at intersections, and nothing forbids them, indeed prudence may require them to halt momentarily to permit the passage of vehicles, the drivers of which will not halt to permit the passage of the' pedestrians. The behavior of this girl was the same as that of many thousands who daily must consider how they may without injury accomplish the crossing of our city streets; and who generally succeed in doing so. One who does what is commonly and safely done by persons similarly situated is not chargeable with negligence. Higdon vs. Pickering Lumber Co., 148 La. 504, 87 So. 252.
“Some of the defendant’s witnesses say that Leathy’s head was turned away when she was struck. But she had looked in the other direction as she approached the crossing, and had seen the truck and the defendant’s car.' Having stopped in such position that, if the drivers of those vehicles had behaved with ordinary prudence, she was safe, the purpose of looking in their direction was served, and she was free to looking around to the other side, where also danger might lurk.
“It seems to me that the plea of contributory negligence must fail.
“Leathy’s right thigh bone was broken and fragmented. An effort was made at the Charity Hospital, to which she was immediately taken, to treat the fracturo with splints and by keeping the leg under tension with weights. After two weeks it was found that the position of the fragments was bad, and then an operation was performed, which consisted in cutting down to and exposing the bone, putting the fragments — or all of them but one — in place, and securing them and the ends of the thigh bone with a metal plate fastened with screws, after which the leg was encased in plaster. Two months and a half after the accident the girl was discharged from the hospital, but was required to wear a brace to keep her weight off the injured leg. At the time of the trial she was still using the brace, and Dr. King thinks she should continue to do so for a year after the operation.
“Her damages are thus seen to be substantial. Her suffering immediately following the accident was severe, and it was renewed when she had to submit to the operation which I have described. Her leg is permanently shortened, and it is somewhat bowed. She will always limp. She is a comely, shapely girl, and this deformity will always distress her. I fix the damages at $2500.00, and there should he judgment for the plaintiffs for the use of their daughter for that amount, with legal interest from judicial demand and costs.”

For above reasons the judgment is affirmed.


text:
    No. 11,118
    Orleans
    RUPP v. REIMANN MANUFACTURING CO., LTD.
    (January 28th, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 154, 160.
    Where the facts show some dependency on the deceased, compensation will be allowed as the statute on February 25th, 1925, the date of the accident, involved herein, only required actual dependency to some extent.
    2. Louisiana Digest — Master and Servant ' —Par. 160 d.
    Funeral expenses will not be allowed where the plaintiff’s minor grandchildren were not heirs of the deceased, did not pay them and were not legally liable therefor.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Mrs. Magdeline A. Rupp, widow of V. B. Schindler, et als., against the Reimann Manufacturing Co., Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    John E. Unsworth and Frank T. Doyle, of New Orleans, attorneys for plaintiff, appellee.
    Monroe & Lemann and Walter J. Suthon, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit for compensation brought by Mrs. V. B. Schindler for the use and benefit of her daughter, Sybil Schindler, and by Mrs. John P. Pfluger, for the use and benefit of her minor sons, John Pfluger and Raymond Pfluger, growing out of the death of Michael Rupp, grandfather of the minors, and also for one hundred fifty ($150.00) dollars funeral expenses.

The only issues in the case are the dependency of the minors and the recovery of the funeral expenses. The fatal injuries to Mr. Rupp occurred on February 17th, 1925, prior to the last amendment to the Compensation Act, and consequently, in order to recover compensation from the defendant company, plaintiffs had only to show actual ■ dependency to some extent, and not actual and entire dependence as required by the amendment of 1926.

The evidence shows that Michael Rupp had two daughters, Mrs. Magdeline Rupp Schindler and Mrs. Katherine Rupp Pfluger. Mrs. Schindler swears that her husband, Y. B. Schindler, died ten years ago, leaving her with two' minor children, practically penniless, and that, in order to live, it was necessary for her to live with her father.

The deceased was making fifteen ($15.00) dollars a week with the Reimann Manufacturing Company, for whom he had been working about twenty years; Mrs. Schindler and her two children, her brother and her father lived together, her father paying her every week the sum of seven ($7.00) dollars, which went into a common pot to pay for the meager living of the family.

Her brother paid a similar amount until he was married about two months before his father was killed and by this time her son was able to go to work.

When Rupp was living, Sybil went to school, but after he was killed she was compelled to go to work.

Rupp’s other daughter, Katherine Rupp Pfluger, was also a widow. At the time the case was tried in the lower court her husband had been dead eight years and, like her sister, her husband left her penniless and with two very young children. At the time of the trial John Pfluger, her oldest child, was fifteen years of age and Raymond was eleven.

Raymond went to school while John worked for the Maison Blanche Company as a check boy for five ($5.00) dollars a week.

When Mrs. Pfluger was asked the direct question whether or not her father ever contributed to the support of her two minor children she replied that once in a while he gave her money to buy shoes and clothes for the children. When she was asked how often he did this, she replied: “When he could spare it”. She testified further that the rent was twelve ($12.00) dollars per month and that her father paid this rent for her every month.

As his two daughters and their children lived in direst poverty, it was impossible for him to live with both daughters; he lived with one and contributed to the support of her children the sum of seven ($7.00) dollars’ a week, while from his meagre earnings he paid the rent of twelve ($12.00) dollars per month for the home in which his two other grandchildren lived, and whenever possible he would buy them clothes and shoes. Out of the seven ($7.00) dollars a week which he paid towards the upkeep of the Schindler home the minor, Sybil, received clothes and shoes sufficient for school, because her mother, as manager of the home, pooled all the money she received and supported everybody in the household on it.

Counsel for defendant contends that Rupp was able to do too much on his meagre ’ Salary !of j fifteen ($15.00) dollars per week, but necessity is the mother of invention, and when we are forced to economize in order to protect and take care of our loved ones, a little may go a surprisingly long way.

Mr. Rupp made sixty ($60.00) dollars a month. He contributed seven ($7.00) dollars a week, or twenty-eight ($28.00) dollars a month, to the support of the family of which his granddaughter, Sybil Schindler, was a member, and to the support of his two grandchildren, John and Raymond Pfluger, he contributed the sum of twelve ($12.00) dollars a month by paying the rent for the house in which they lived. This left him twenty ($20.00) dollars a month for his personal use, and it is not unusual for an old man, a laborer all his life, long accustomed to deprivation, to get along on twenty ($20.00) dollars a month.

When Mrs. Pfluger was asked how was she managing to get along since the death of her father, she replied: “We were not getting along very well.”

Mrs. Pfluger, however, testified that since the death of her father her two children did not get as many clothes as they got while he was living, for the very simple reason that the little family had twelve ($12.00) dollars a month less to spend on clothes, because the grandfather paid the house rent, which to them was a very heavy item, and for the further reason that during her father’s life, whenever he could spare it, he would buy them clothes and shoes.

Another (Witness, Mr. Nussbaum, an old friend of Mr. Rupp, who had known him for about thirty-five years, testified positively and affirmatively that Mr. Rupp came to his house .on a number of occasions and left money there for his grandchildren; he would often come on Sunday and leave it there, and Mrs. Pfluger would come to his home on Monday and get it. He has seen his wife give the money to Mrs. Pfluger.

Defendant argues earnestly that John Pfluger, who was earning five ($5.00) dollars per week and contributing to the family pot, cannot be considered dependent, when the total family income for mother and two sons was only about seventy ($70.00) dollars per month, but the fact that Rupp paid the rent for the house .in which his two grandsons lived is sufficient in our opinion to establish at least partial dependency.

In Joseph vs. Board of Commissioners of the Port of New Orleans, Court of Appeal Reports, Vol. 5, p. 678, we held as follows:

“Actual dependency to some extent, rather than the fact that the minors were residing in the household of the deceased at the time. of his death, is the controlling fact in fixing liability for compensation.”

In the Joseph case, as in this case, Joseph paid the rent for the house in which his nephews lived and defendant contends that the fact that Rupp did not live in the house with these minors cuts them off under the statute.

In Gregory vs. Standard Oil Co., 151 La. 228, 91 So. 717, the Supreme Court allowed compensation to defendant’s parents for the death of their minor son, although he was living elsewhere with his sister.

We think the statute should be construed liberally, in spite of the amendment of 1926, and we follow the Supreme Court which said in Heinzelman vs. Port Commissioners, 149 La. 215, 88 So. 798: “Dependent to any extent is a very broad term and seems to us to include necessary aid furnished for the discharge . of any legal obligation, as well as aid required merely in supplying the personal wants of recipient.

Under this construction, we find both the Pfluger and Schindler minors entitled to compensation, but the judgment appealed from is clearly erroneous in allowing the recovery of one hundred fifty ($150.00) dollars for funeral expenses. These minor children were not the heirs of their grandfather, as their mothers (daughters of the deceased) are living.' The proof does not show that these funeral expenses were paid by the minors, but, on the contrary, the testimony of one of the sons of the deceased is that “we paid them out of his succession”.

These minor children are under no legal liability to pay them, and they accordingly have no right to assert a claim which belongs to the heirs or to the succession.

For these reasons the judgment is reversed in so far as it allowed funeral expenses to the plaintiff, and it is affirmed in all other respects, costs of this appeal to be paid by plaintiff and appellee.


author: CLAIBORNE, J.

text:
    No. 10,060
    Orleans
    ROGERS v. WOOD
    (January 30, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Landlord and Tenant —Par. 67.
    A lessor who takes possession of leased premises and removes therefrom the property of the lessee without his consent and without legal process is liable in damages to the lessee.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Harry Rogers against Robert M. Wood.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Terriberry, Rice & Young and A. R. Martinez, of New Orleans, attorneys for plaintiff, appellee.
    Ernest J. Robin, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit by a lessee against his lessor for taking illegal possession of the leased premises.

The plaintiff alleged that by an act under private signature dated July 1st, 1923, the defendant, Robert M. Wood, leased to him an apartment in the house, No. 1216 N. Lopez street, for the three months, July, August and September, for the price of $60 per month, payable on the first day of each month.

The plaintiff further alleged that at the expiration of said lease he renewed the lease with defendant for two months, October and November, 1923, verbally; that during the term of said lease he and his wife went to California where they remained a number of days; that upon their return to the city he found that defendant had leased his apartment to another person, and had removed the clothes of plaintiff and of his wife with other articles belonging to him and thrown them on the floor of another apartment and caused them much damage; and plaintiff was put to the expense of moving to a hotel and there paying for rooms; that all said damage amounted to $338.67, according to itemized account annexed to the petition; that plaintiff has also suffered humiliation and inconvenience to the extent of $1000. He prayed for judgment for $1338.67.

The defendant admitted the first lease for the three months of July, August and September; but denied all the other allegations. He alleged that at the termination of said lease he renewed the lease with the defendant verbally for one month, ending October 31st, payable in advance like the anterior months; “with the strict understanding, at the time, that said verbal lease was entered into that should the defendant need his apartment at the expiration of the month of October, that he would take possession of same without any further notice, to which plaintiff readily acquiesced;” that the plaintiff had refused to renew the lease for one year, stating that his company had transferred him to Chicago, and that he expected to leave for that city at any time, and if needed that defendant could have his apartment whenever he needed it after a few hours’ notice, and time to pack up his personal belongings; that from October 5th to about November 8th, 1923, plaintiff did not occupy the apartment nor communicate with the defendant; that when November 5th came around and plaintiff gave no intention of continuing the lease, nor paid rent for November, defendant believed that plaintiff would not return, and opened said apartment to be aired, and cleaned and carefully packed and removed plaintiff’s clothes to a lower apartment; that on November 6th he leased the apartment to another person.

Assuming the character of plaintiff in reconvention the defendant alleged that his apartment is equipped with all the modern conveniences of a hotel; that the plaintiff damaged the following furniture therein: the -breakfast table, the ironing board, the lavatory, the rug, broke cups and dishes, that he paid the light bills of plaintiff amounting to $10, and that plaintiff owes him $10 for the rent of the premises from November 1st to 5th. Defendant also claims of plaintiff $1000 for defamatory language addressed to him by plaintiff on his return to the city.

On motion, the reconventional demand for $1000 was stricken out.

The case was tried by a jury who rendered a verdict in favor of plaintiff for $250, dismissing the reconventional demand.

The court refused a new trial.

The defendant has appealed and plaintiff has asked for an increase of the judgment.

The case, turns upon the question of fact, whether the first lease ending October 1st was renewed for one month, October, only as contended by defendant, or for two months, October and November, as alleged by plaintiff; for it is evident that if the lease had been renewed for two months ending on November 30th, that the defendant had no right to take possession of the apartment on November 5th. Therefore the burden is on defendant to overcome the presumption that the verdict and judgment are both erroneous.

Of course the plaintiff swears that he rented the apartment for the months of October and November verbally with Mr. Wood in presence of Mrs. Rogers; that he absented himself on October 5th, but that it was distinctly understood that he was to return; he retained the keys; when he returned to the apartment he found it occupied by another party who refused to surrender it; so he went to the Bienville Hotel; on his arrival at the apartment he received a letter from the defendant,dated November 8th; when he left the apartment on October 5th he locked the door and carried the key away with him.

Mrs. Rogers, plaintiff’s wife, testified that she was present when the defendant asked her husband to take a lease for twelve months; that her husband refused when “it was agreed at that time that we (they) would stay for two months, October and November.”

Mr. Wood, the defendant, testified that arrangements for the renewal of the lease beyond September 30th, 1923, were made in the presence of his wife and niece, and that Mrs. Rogers was not present; he renewed the lease for the month of October only; “it was fo.r one month and paid, and we agreed if he stayed a few days in November it would be all right, provided we could get the apartment when we wanted it,” and he agreed that we could have the premises in November at any time on giving him a day or so notice to vacate as the premises would be $125 a month, which he was not willing to pay; “he was to pay for as many days as he remained in November on the basis of $60 a month”.

Miss Wibker, niece of defendant, was present when tbe lease was renewed for some time after October 1st; she* testified that Mr. Rogers came into the room witb the 12-month lease and tbe notes and said to Mr. Wood: “As I am not going to stay here next year I am returning the lease. If you will let me stay for tbe month of October, or as far into tbe next as I need, I will appreciate it”; and Mr. Wood said: “All right, I will be glad to let you stay until tbe time I can release tbe bouse to someone else”.

Mrs. Wood, defendant’s wife, said:

“My husband told him (Mr. Rogers) that we would need tbe apartment during tbe racing, and it would be a help to him as well as to us if be did remain until other tenants were secured for tbe racing season, and that be could stay until her husband needed tbe place, provided we could get the place as soon as we needed it,” and be said: “All right.”

We are dispensed from weighing tbe testimony in this case, which seems so contradictory, by the following letter dated November 8th, 1923, addressed by the defendant, Wood, to tbe plaintiff, Rogers. It reads in part as follows:

“Mr. H. A. Rogers,
“1216 North Lopez Street,
“New Orleans, La.
“Dear Mr. Rogers:
“For fear that you might arrive back in town while I was away with the family, I thought I would drop you .this little note of explanation on our renting your apartment. We had the opportunity of renting on 1st to Mr. Wilson at $125 and thought it would be better than keeping open until you. returned, not knowing when that would be, and too that it would save you some money, knowing also that you would leave on December 1st.”

This letter shows that defendant expected that the plaintiff would come back.

It could not save Rogers any money, unless he was obligated to pay the rent for the month of November and unless the rent due by him would be paid by the tenant who succeeded him. How could Wood know that Rogers “would leave on December 1st” unless he had leased the apartment up to that date?

This letter, together with the verdict and the judgment, turn the scales in favor of the plaintiff. The judgment is correct and we find no reason to increase the amount allowed. It is in line with previous decisions — Byrne vs. Riddell, 3 La. Ann. 670; Fitzgerald vs. Boulat, 13 La. Ann. 116; Edwards vs. Ricks, 30 La. Ann. 926; Perres vs. Munsch and Arnoudin, 6 La. App. 770; and cases there quoted.


text:
    No. 9707
    Orleans
    McGEEHAN v. BOARD OF LEVEE COMMISSIONERS
    (March 28, 1927. Opinion and Decree.)
    (April 12, 1927. Rehearing Refused.)
    (February 3, 1928. Reversed by Supreme Court on Writ of Certiorari and Review.)

      (Syllabus by the Court)

    1. Louisiana Digest — Levees—Par. 13, 14; Parishes — Par. 47.
    The Board of Commissioners of the Orleans Levee District is not responsible to individuals for damages due to offenses and quasi offenses committed by its officers, agents or employees.
    2. Louisiana Digest — Action—Par. 20.
    There is no difference between an action for damages, due to the removal of dirt from plaintiff’s land, and an action for the value of the dirt removed. Both actions are sounding in damages ex delicto.

      Appeal from Civil District Court, Divisions “C” and “F”. Hon. Percy Saint, Judge.
    Action by William J. McGeehan and Grace Mary McGeehan against Board of Levee Commissioners of the Orleans District.
    There was judgment for plaintiff and 'defendant appealed.
    Judgment reversed.
    Dart & Dart, of New Orleans, attorneys for plaintiff, appellee.
    Arthur McGuirk, Benjamin T. Waldo, E. P. Deutsch, of New Orleans, attorneys for defendant, appellant.
   OPINION

WESTERFIELD, J.

These suits are brought against the Board of Levee Commissioners of the Orleans Levee District, or, as it is more familiarly known, “The Levee Board”, upon similar allegations, of which the following, in the case of Grace Mary McGeehan, are typical.

That plaintiff owned certain real property situated in the Seventh District of this city; that during the month of May, 1922, “defendant, through its agents, servants, employees and contractors, did enter upon petitioner’s property aforesaid and excavated and removed therefrom in excess of three hundred and eleven cart loads of dirt, which defendant appropriated to its own use, without petitioner’s consent, and without compensating petitioner therefor"; that defendant refused to restore the land of petitioner to its former condition or to pay to petitioner the value of the dirt removed notwithstanding numerous verbal and written demands; that petitioner shows that “she has been damaged by the defendant in the sum of * $466.50, being the value of the earth taken from petitioner’s premises”; that suit was filed on the 19th of March, 1923, and on the 25th day of May, 1923, an involuntary non-suit was rendered by the Civil District Court.

A number of defenses were urged in the lower court, but here the defense is twofold, the prescription of one year, and an exception of no cause of action filed in this court.

As to the plea of prescription, it is not sound, for the present suits were filed within one year, if allowance for the interruption of prescription by judicial proceedings is made, as, of course, must be done.

The exception of no cause of action is based upon the principle that a public board such as the Levee Board can not be held liable for the tortious acts of its employees. Turmata vs. Board, etc., 3 La. App. 785.

Plaintiff does not question the principle of law involved, but. she contends that the basis of this action is in contract, not in tort, not ex delicto, but quasi ex contractu. It is argued that actions take their character from the form given them in plaintiff’s petition. 12 Am. 358; 145 La. 159; 150 La. 558; 152 La. 419. In this case it is contended that it is the value of the land taken by the servants of the defendant which is demanded upon a quasi contract arising from the taking of the dirt for levee purposes which it is claimed was a lawful purpose creating an obligation to pay for it.

In the words of counsel taken from his brief:

“On tlie question of the exception of no cause of action we will not burden the court with the academic discussion of whether or not the action is one of trespass ‘de bonis asportatis’, or any other kind of trespass. We are not suing for damages caused by the entry upon the land. Had we alleged that the property had been damaged as, for instance, by disfiguring the landscape, or by destruction of growing crops, etc., the action would probably have been ex delicto, and the defendant board not liable.
“However, we are not doing this. We are suing for the value of property actually taken by the Levee Board; property, namely, earth or dirt, which has an ascertainable market value.
“Section two of Article one of the Constitution provides: ‘No person shall be deprived of life, liberty or property except by due process of law.' Except as otherwise provided in this constitution, private property shall not he taken or damaged except for public purposes and after just and adequate compensation is paid.’
“Section six of Article sixteen of the constitution provides: ‘Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes shall be paid for at a price not to exceed the assessed value for the preceding year; provided' this shall not apply to batture, nor to property the control of which is vested in the state or any subdivision thereof for the purpose of commerce.’ ”

In Millspaugh vs. City, 20 La. Ann. 323, it was held that the action of the city of New Orleans in appropriating cobble stones and using them to repair city streets was an offense and the action to recover the value of the stones, ex delicto and prescribed by one year. See also 20 Ann. 151.

In DeLizardi vs. N. O. Canal & Banking Co., 25 La. Ann. 414, it was held that: “Where a plantation belonging to one person is seized and detained under a writ of attachment issued against another, such seizure and detention constitute a quasi offense and that the claim for damages, which is barred by the prescription of one year, includes that for all rents and revenues save those arising during the year immediately preceding the filing of the suit, holding also that it included the claim of the plaintiff for the value of the sugar and molasses that had been seized with the plantation.”

Quoted from Shields vs. Whitlock, 110 La. 718, 34 So. 747, where the LeLizardi case is discussed.

In the Shields case (supra) we find the following:

“Finally it was suggested in the oral argument (and there seemed to be much force in the suggestion) that there ought to be a difference between the application of the prescription relied on as between the claim for damages resulting from the trespass and the claim for the value of the property belonging to the plaintiff which the defendants have appropriated to their own use. We feel very much inclined to the view that there ought to be such a difference, but it does not seem to be recognized by the law or the jurisprudence of this state.” See also J. H. Bel Lumber Co. vs. Stout, 134 La. 999, 64 So. 881.

Plaintiff’s action, we conclude, is one sounding in damages ex delicto and consequently is within the scope of the principle, which denies a right of action against public boards or other governmental functionaries for offenses of their servants and employees.

The judgments appealed from are reversed and it is now ordered that there be judgment in both cases dismissing plaintiff’s demand.


text:
    No. 10,579
    Orleans
    LEWIS v. SWILER CONSTRUCTION CO.
    (January 28, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    When a ease involves merely a question of fact the judgment will he affirmed unless manifestly erroneous.
    Appeal from the Civil District Court, Hon. Porter Parker, Judge.
    Action by Monroe Lewis against J. J. Swiler Construction Co., Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    F. B. Smith, Paul W. Maloney, of New Orleans, attorneys for ¡plaintiff, appellant.
    Gordon Boswell, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit under the Employers’ Liability Act.

The plaintiff alleged that he was employed as a laborer in a hazardous occupation by the defendants and that on June 25th, 1925, while so employed he was permanently injured on his left leg by an iron pick; that compensation of $22.95 was paid to him for two weeks and three days, by the defendants through an insurance company from July 3rd to July 19th, 1925, but was since denied further compensation; that under Act 216 of 1924 he is entitled to 65% of his weekly wages for 300 weeks amounting to $2895, subject to a credit of $22.95 already paid him.

The defendant admitted the employment of ¡plaintiff in a hazardous occupation; admitted that plaintiff struck himself on the lower third of his left leg with a pick axe which he was using in the course of his employment; admitted the payment of $22.81 instead of $22.95; admitted the demand for further compensation from the insurance company; and avers that the insurance company refused to pay “for the reason that the several doctors who examined plaintiff certified that his liability from the said accident terminated on July 19th, 1925.” They denied all the other allegations of plaintiff’s petition.

There was judgment in favor of the defendant rejecting plaintiff’s demand and he has appealed.

The only question remaining for our determination is one of fact, whether plaintiffs’ disability to work lasted beyond July 19th, 1925.

The plaintiff testified that he had not yet recovered from his injury; that it hurt him all the time; before he worked for the defendant he was driving a wagon; moving furniture up and down stairs; his limbs were all right; he cannot do any ¡physical labor any more; he walks with a stiek since he was hurt; he is 69 years of age; he was earning $2.70 a day when he got hurt; or $15 a week; Mr. Swiler was standing right over him when he struck his knee with the pick; he consulted Dr. Gaines on the day after the accident'; he walked to his office about four blocks off; he returned there about two weeks after; on, the advice of the defendant he went to Dr. Ficklen; he wrapped his knee in cotton, but gave him no medicine, all the medicine he got was from Dr. Mims and Dr. Gaines; “he told me to go back to work, but I wasn’t able. By him telling me to go to work didn’t make me fit, because I wasn’t able”; he went to Dr. Mims in July and August; lie is rubbing with camphor and oil and hot water and salt.

Dr. Mims testified that the plaintiff came to him with an injury to his leg near the shin bone; he showed evidence of-wound; he thinks the plaintiff said three or four weeks after the injury; he came to his office only twice; he gave him medicine and stuff to apply to it; he thinks he showed signs of suffering on his last visit; he guesses, according to his age, he would suffer three or four or five months; he had a scar, from the wound; he could not say how large, he paid no particular notice, it has been so long; there was no other injury.

Robert Brooks testified that he fired with the plaintiff for about a year; then he had a furniture wagon which plaintiff was driving for him and “toting” furniture; he stopped working for witness who did not see him for some time; when he heard he had been hurt he went to see him and “seen his feets all swole” on a chair; some time after the plaintiff asked him for a job, but he told him he would not do, as he could not jump on wagons and hop down, limping as he was. The plaintiff did not produce Dr. Gaines who first treated him.

The defendant Swiler testified that the plaintiff was at work digging a trench in which there were cobble stones; he was using a mad-axe, wide on one side and pointed at the other side; the axe glanced and hit him a light lick on the shin bone; after a while he said his foot hurt; he continued working until 4.30, a full nine hours’ work; plaintiff pulled up his pants and showed him his leg; there was nothing to it, just a little dent; the blade of the axe is dull, having been used for several years; the skin was not cut, just a little dent, no bleeding; he did not come back the next day, only about two or three weeks after.

Dr. J. N. Dicks testified that on September 25th, 1925, he examined plaintiff who complained of a swelling of his ankle; he indicated the place on his leg where he had been struck by the axe; he found no evidence of an injury at that place from the blow; he did not see him any other time; just below the alleged blow there was a scar about three inches in length that he told him he had received some years ago from a burn; there was a swelling on his left foot which was due to his old scar; he could find no signs of any swelling to his leg where he said he was struck; he asked for no treatment, he came only to be examined; witness has been practicing since 1914 and is a graduuate of Tulane.

Dr. E. A. Picklen is a graduate of Tulane and has specialized in surgery; he examined plaintiff in July, 1925; he found no evidence of an injury on the left shin bone, only a small break in the skin; he found that his left foot and ankle were slightly swollen; in his opinion “the swelling was not due to the blow on the shin; it was due partly to the interference with the articulation of the foot by scar tissue, and due partly to extensive hardening of the arteries of that lower extremity”; the plaintiff told him that the scar on his leg was due to an old burn sustained during the time when he was fireman on the railroad; the last time he saw him the break in the skin had disappeared, his normal health was restored and he discharged him on July 20th; he was then able to resume work as a laborer; the blow on the leg did not increase his previous diseased condition; the location of the wound did not interfere with any of the muscles of the leg. The crest of the tibia is covered only by the skin and a few small blood vessels; a blow there is moderately painful, but this man was given the benefit of every doubt; he saw him first about, two weeks after the injury; saw him four times and he allowed him to draw compensation until July 20th; at the time he discharged him he was cured of all injuries according to his sincere opinion.

We are not assured that the judgment is not correct. In the case of Stewart vs. Canal Steel Works, we said: “When a case involves merely a question of fact the judgment will be affirmed unless manifestly erroneous”.

Judgment affirmed.


text:
    No. 10,606
    Orleans
    ABNER v. ORANGE CRUSH BOTTLING CO., INC.
    (January 2, 1928. Opinion and Decree.)
    (January 30, 1928. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    Only questions of fact are involved and the decision is affirmed as there are no manifest errors in the judgment of the lower judge.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    There was judgment, for plaintiff and defendant appealed.
    Judgment affirmed.
    Harold A. Moise, of New Orleans, attorney for plaintiff, appellee.
    Daniel Wendling and E. M. Stafford, attorneys foir defendant, appellant.
   JONES, J.

Plaintiff sues defendant for damages sustained by her by reason of a sign belonging to the Orange Crush Bottling Company, Inc., falling on her head on November 15th, 1925. The sign, which was attached to the second story of a residence at the corner of Freret and Louisiana, as shown by the evidence of Ephie Rosenberg, vice-president of the company, was made of galvanized iron and wood and weighed fifty pounds. It was eight feet long and three feet wide.

The corner of the sign struck plaintiff on the head. The plaintiff was taken to the store of the people who had the sign suspended and from there was removed to her home in a truck. She was under treatment of. a physician for five weeks and his bill was thirty-nine ($39.00) dollars.

The defense was that the plaintiff was not hurt badly and, secondly, that the sign fell down due to an act .of God, the wind being strong on that day, although the defendant’s own witnesses declare it was on a Sunday and the sun was shining.

The court, after hearing the evidence, found for the plaintiff and awarded her two hundred fifty ($250.00) dollars, as it did not consider the injury severe, the scalp not having been lacerated and only a slight swelling on the head having resulted, which had disappeared in ten days.

As the question is one of fact and there is no manifest error in the decision below, it is affirmed.


text:
    No. 10,056
    Orleans
    DESHIELDS v. JEFFERSON-ST. CHARLES TRANSFER
    (January 30, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. — Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact is amended when clearly erroneous as to amount of judgment.
    ' Appeal from the Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by Mrs. William Deshields against Jefferson-St. Charles Transfer Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellee.
    Prowell & McBride, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff was injured when a passenger in an automobile ominbus operated by defendant.

She sues for damages. From a judgment against it, defendant appeals.

There is the usual conflict of evidence in the record; however, there is testimony which, if believed, amply supports the judgment. We are unable to say that the court manifestly erred. Its findings on the question of liability will be affirmed.

Plaintiff’s injuries were not serious. She suffered with muscular strain and a few bruises on her legs and back. Her physician recommended that she rest in bed, which she did a while, but his testimony indicates that this advice was inspired largely by what might happen and but little by what had happened.

She could not have suffered very much and we believe an award of $250.00 to be sufficient.

It is therefore ordered that the, judgment appealed from be amended by reducing the amount awarded plaintiff to $250.00 and, as thus amended, affirmed.