author: TALIAFERRO', J.

text:
    No. 3684
    Second Circuit (Second Division)
    JOUETT v. KEENEY
    (July 16, 1931. Opinion and Decree.)
    (August 12, 1931. Rehearing Refused.)
    Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for plaintiff, appellee.
    Frank J. Looney and Frank O. Looney, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO', J.

Mrs. M. E. Keeney, defendant, on December 7, 1907, by warranty deed, in notarial form, sold and conveyed to John Armstead the following described property in the city of Shreveport, to-wit: “Lot seven (7) and nineteen feet and eight and one half inches off of the adjoining side of Lot eight (8) in Block Four (4) of the Holmesville Subdivision in the City of Shreveport, Caddo Parish, Louisiana, as per map in Conveyance Book V, pages 733 & 734— less a strip of five feet wide off the rear end of said lots which is reserved from this sale and dedicated to the City for alley purposes.”

John Armstead conveyed the same property with same exception to Charles R. Jouett, plaintiff herein, and to John H. Jouett, on May 29, 1911, and on "January 16, 1912, John H. Jouett conveyed to "plaintiff his one-half interest in same property. Acts of sale mentioned were all duly recorded in the conveyance records of Caddo parish.

Plaintiff alleges that notwithstanding the reservation and dedication of said 5-foot strip of land off of rear of said lots 7 and 8 for alley purposes, defendant, Mrs. Keeney, now asserts that said dedication has been set aside, that same belongs to her, and she has attempted to inclose same with a fence. He further avers that he acquired said alley rights in the acts of sale to him, and that same are very beneficial and valuable to his said lots, and furnish a means of ingress and egress thereto; that unknown to him and without his knowledge and consent said defendant secured the adoption of an ordinance or resolution by the city of Shreveport purporting to cancel said dedication of said alley as aforesaid, but that such action on the part of said city, being to his (prejudice, is and was illegal and void, for the reason that said alley was dedicated by defendant and was a part and parcel of the property conveyed by her to John Armstead and thereafter acquired by petitioner; that the use of said strip of land has not been abandoned by him and is needed and used by him and was for a number of years used by the public for alley purposes; and that his right of servitude or passage acquired under the deeds above mentioned cannot be thus taken away from him without violating the Fourteenth Amendment of the Constitution of the United States. He further avers that defendant does not own any property abutting said alley, and when same was vacated or abandoned by the city of Shreveport it did not revert to her, but to petitioner, • whose property abuts it; that he acquifed full ownership of said strip by virtue of said resolution of the city of Shereveport setting aside said dedication.

Plaintiff prays that he be recognized as the owner of said strip of land, and, in any event, that his right of passage or servitude over same be recognized.

Before defendant answered, she filed a prayer for oyer of the deeds referred to by plaintiff and .of the resolution of the city of Shreveport purporting to cancel the dedication of said alley. These documents were then produced and filed. The resolution is as follows:

“Resolution No. 173 of 1927.
“Whereas a dedication was made in 1907 by Mrs. James Keeney and others of a strip off the rear of" lots 7-8-9, Block 4, Holmesville Subdivision and a like strip was to be dedicated off the lots in rear of said lots, and
“Whereas said like strip was never dedicated and the dedicated strip was never opened up nor ever used for traffic, 'therefore,
“Be it resolved by the City Council of the City of Shreveport in regular and legal session convened, That the Mayor be and is hereby - authorized to sign a quitclaim deed on behalf of the City, returning this property without warranty to the owners of said lots.”

Defendant avers that the strip of land dedicated by her to the city for alley purposes was never accepted by the city formally or by user thereof and therefore never took effect; that the title to said land was never in the city and therefore could not have reverted to the adjacent or abutting property owners; that said strip of land belongs to her and has so belonged to her at all times, and, even should the court hold that plaintiff had a servitude on the property, he has lost same by nonuser for more than ten years under articles 789 and 3546 of the Civil Code. She admits that she had the city of Shreveport adopt the ordinance canceling the dedication; that she fenced the land in controversy; that she owns no land abutting same; and prays for judgment recognizing her asserted ownership.

The land was adjudged by the lower court to belong to plaintiff, and defendant prosecutes appeal from that decree.

There is no plat of the Holmesville subdivision in the record, but it is admitted that block 4 thereof contains no alley; that is, none was laid out and dedicated when the subdivision was created. The record does not. disclose the fact affirmatively, but we think' this block contains twelve lots, with lots 1 to 6 forming the south tier and lots 7 to 12 forming the north tier, with lots 6 and 7 on the east side of the block. The block is bounded by Stoner avenue on north, Louisiana avenue on east, Eagan street on south, and Nutt street on west. The lots measure 50 feet across, east and west. The two tiers abut each other in the center of the block.

It was evidently contemplated in 1907 that an alleyway would he established through this block 4, 10 feet wide, from Louisiana avenue tq Nutt street, by the abutting property owners dedicating strips of five feet in width from their respective lots, but this did not materialize; hence the declaration in the resolution of the council of the city of Shreveport to that effect.

It is not shown that Armstead used or improved the lots he purchased from Mrs. Keeney, but after plaintiff acquired the property in 1912 he erected a barn on it for use of his horses close to the alley line, and at same time erected a fence on north line of the alley, which remained there, according to his evidence, three or four years. In 1913 he erected a brick store building at the corner of the lot 7, with 38 feet front on Louisiana avenue. The balance of the lot to the alley is vacant and is used for' parking purposes. Plaintiff also erected a wall between 18 inches and 2 feet in height along his property line on Louisiana avenue to the alley. A driveway was provided through this wall about midway of it. The city left open a driveway 10 feet wide in the curb on Louisiana avenue, which we conclude from the evidence was opposite and intended for use of the 10-foot alleyway contemplated through the block. It does not appear when this was done. Plaintiff says he used this driveway in reaching his barn through the corner of his lot, over the eastern end of the alley, until 1917, but, in view ' of the fact that he placed a post of concrete at end of the wall at alley line and opposite side of alley was fenced, we conclude that vehicles did not enter his property across any rpart of the alley.

He states that he bought an automobile in 1917 and thereafter used the driveway in the wall on Louisiana avenue to enter his property.

The contemplated alley was never extended through block 4. The owners of the lots that lay south of lots 7 and 8 declined to make a dedication of a strip adjacent to that dedicated by defendant, but, on the contrary, maintained a fence on their property line for a time and then sold the lots, and a garage or filling station was erected thereon.

It is not seriously contended that this alley could have been used by the public, except by pedestrians entering or leaving the adjacent properties. It was not a short-cut across the block, as it did not extend entirely through it. The evidence shows that vegetation grew and flourished over the alley to such size that the health authorities ordered it cleared, and the fences on both sides decayed and fell into it.

Defendant resumed interest in this strip of land in 1922, some fifteen years after her deed to Armstead. The tax assessor informed her that it was hers, but she was indifferent about it until that official assured her that it belonged to her, and then she consented that she be assessed with it. She thereafter endeavored to sell it to plaintiff. He refused to purchase. She fenced the north side of it, and this suit followed.

The strip was assessed to Mrs. Keeney from 1922 to 1928, inclusive, but from 1908 to 1921, inclusive, it was not assessed to any one, excepting that for the years 1918 to 1926 the entirety of said lot 7 was assessed to plaintiff.

The dedication of the 5-foot strip by Mrs. Keeney to the city of Shreveport was inchoate. The city was not a party to the instrument containing the reservation and dedication, and we do not think it after-wards accepted the stipulation in its favor expressly or impliedly. To effectuate the establishment of the alley across the block, of which this reserved strip would be a part, it was necessary that other owners of lots make like dedications to the city. This was not done, and. the city apparently abandoned the project entirely. The fact that an opening for a driveway was left in the curb, presumably built by the city, opposite the Louisiana avenue entrance to this alley, is pointed to as evidence of the city’s recognition of the existence of the alley, but it does not appear when this curbing was laid. We are inclined to believe it was before 1907, at which time the city evidently indulged the hope to see an alley through the block at this point. It is also argued that, inas much as this strip of land was not carried on the city’s assessment rolls from 1907 to 1921, as being owned by plaintiff or defendant, the city thereby tacitly admitted its ownership to the land, and this operated as an acceptance of the dedication to it by defendant. Defendant answers this argument by saying that the tax assessor who prepares the roll from which the city collects its taxes is not an official of the city, but of the parish pf Caddo, and cites the following authorities to the effect that the acts of a tax assessor do not have the effect of an acceptance by the city of a dedication to it.

“Assessment of property according to a plat does not show acceptance by city of streets and alleys shown by plat, since assessor has no authority to accept dedication of a street.” Boatmen’s Bank v. Semple Place Realty Co., 202 Mo. App. 57, 213 S. W. 900; Third Decennial Digest, vol. 10, page 627.

“Tax assessor has no authority for a city to accept a dedication of lands for street purposes by the owner.” Johnson V. City of Niagara Falls, 230 N. Y. 77, 129 N. E. 213; Third Decennial Digest, vol. 10, page 628.

It is clear to us that the dedication made by defendant was simply one step in the desire to create a 10-foot alley through the block. The ultimate opening of the alley was dependent upon all of the abutting property owners making dedications of land of like width. When concurrence on part of the property owners failed, the project also, failed, and, as declared in the resolution adopted by the city council “the dedicated strip was never opened up nor ever used for traffic.” The 5-foot strip ending near the middle of the block could not possibly serve the purposes for which a passageway of that kind is desired, and, so far as we are able to see, would be of no practical benefit to the abutting lots of either side.

Mrs. Keeney, in the sale to Armstead, positively reserved from it the strip in question. If nothing further had been said by her, in this act, affecting the property reserved, it could not be questioned that she continued to be the owner of it without qualification. If she wished to donate it to any one establish a servitude upon or over it she had the right to do so. She exercised the right with which she was thus invested by dedicating, so far as she could, the reservation to the city of Shreveport for alley purposes. If the purposes tailed of accomplishment, then the proffered dedication ceased to bind the grantor. The city was the grantee and the only one in whom reposed the power and right to accept the offer o.f dedication to it.

We find that there was no express acceptance of the dedication by the city, and none impliedly by user of the property. Therefore the inchoate grant to the city, ‘as a result of its long inaction, ceased to be effective, and, in the final analysis, amounted to nothing more than an offer which, by silence and inaction, was declined.

It is indispensable to the consummation of a dedication of property to public use that there be some sort of acceptance. No exact form for such is prescribed by law. That requirement is enunciated in one of the early cases to reach the United States Supreme Court, that of Cincinnati v. White’s Lessee, reported in 6 Pet. page 431, 440, 8 L. Ed. 452, wherein the court said that there are two principal requirements to be fulfilled in an act of dedication, viz.: “The assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation”; use being equivalent to acceptance.

This doctrine has been uniformly adhered to by our own courts in many decisions. In the case of Linton v. Guillotte, 10 Rob. 357, it is said:

“Although no particular form is required for the dedication of land to public use, the positive assent of the owner, and the fact of the land being used for the public purposes intended by the appropriation, must at least, be shown (Cincinnati v. White) 6 Pet. 431 (8 L. Ed.. 452; Gleisse v. Winter) 9 La. 152; (Municipality No. 2 v. Orleans Cotton Press) 18 La. 122 (36 Am. Dec. 624; City Council of Lafayette v. Holland, 18 La.) 291. When, in 1841, the petitioner bought this property, the reference in her sale.to the plan made in 1830, was sufficient to put her upon the enquiry, why the street, which was contemplated more than ten years before, had not yet been opened. She could easily have ascertained that the project of opening this street had long since been abandoned.”

Also:

“As we have said, there was no dedication. Had there been one, it was inchoate only, until the acceptance of the party for whose benefit the dedication was intended.” Livaudais v. Municipality No. 2, 16 La. 509, 514.
“If any dedication was ever intended it remained inchoate, until some evidence of acceptance was exhibited.” Carrollton R. Co. v. Municipality No. 2, 19 La. 62, 71.

To same . effect is the recent case of Quirt v. Miller, 129 La. 1071, on page 1075, 57 So. 521, 522, wherein the court said: “Dedication of private property to public use should be made to appear; there should an intention be shown on the part of the owner, and it should at least be implied by acceptance by the public.” Citing Elliott on Roads, c. 5, pp. 85, 86; De Grilleau v. Frawley, 48 La. Ann. 193, 19 So. 151; Arrowsmith v. City of New Orleans, 24 La. Ann. 194; Heirs of Leonard v. City of Baton Rouge, 39 La. Ann. 283, 4 So 241.

And in the very recent ease of Jaenke v. Taylor, 160 La. 109, 106 So. 711, 714, the following language is used: “A dedication to public use is inchoate only, until after its acceptance, which acceptance may be shown by authentic act or the use of the property in manner and for the object designated.” David & Livaudais v. Municipality No. 2', 14 La. Ann. 872.

Also: “Until the right is exercised by the public authorities, the 60-foot space is not a public road.” Landry v. Gulf States Utilities Co., 166 La. 1069, 1074, 118 So. 142, 144.

It is contended by plaintiff that the dedication of the strip for alley purposes by Mrs. Keeney was for the benefit of the property sold to Armstead and now owned by plaintiff, and therefore the city had not the right or power to revoke the dedication to his prejudice. Whatever may have been the rights and .privileges of plaintiff originally over this dedicated strip of land such have been lost by nonuser for more than ten years. The evidence is conclusive he has not used the land to any extent as a passageway since 1917. Civ. Code, arts. 783, 789; Thompson v. Meyers, 34 La. Ann. 615; Knox v. L. R. & N. Co., 157 La. 602, 102 So. 685.

The city through the action of its council has disclaimed interest in the strip of land, thereby confining the question of ownership to the parties to this suit.

When the city adopted the resolution mentioned, it conceded its lack of ownership of or interest in the land covered by the dedication, and, in our opinion, that position was correctly taken. Therefore, in declaring the failure of the project to open up an alleyway through the block, and authorize its mayor to execute a quitclaim deed covering the strip of land, it did not divest itself of a real right, or a “thing of value” as embraced in the prohibition of article 4, sec. 12, of the Constitution.

For the reasons herein given, we do not think Act No. 151 of 1910 has any bearing upon the issue of title to the land in, controversy. That act was intended to apply, and does apply, only to roads and streets and alleys which were at one time used as such and had been abandoned or were no longer needed. This conclusion makes it unnecessary for us to consider the attacks of plaintiff against this act on constitutional grounds.

The strip of land in question, in our judgment, belongs to defendant, free of the dedication of it made by her in the deed to Armstead.

For the reasons herein assigned, the judgment of the lower court is annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that defendant have judgment against plaintiff recognizing her to be the owner of the strip of land in . controversy and described in plaintiff’s petition, free of the dedication of same to the city of Shreveport, which is hereby decreed to be without effect, and she is hereby quieted in her possession thereof.

It is further ordered and decreed that ¡plaintiff pay all costs of this suit.


source: Caselaw Access Project

author: TALIAFERRO, J.

license: Public Domain

text:
    No. 4073
    Second Circuit (Second Division)
    LUCAS v. ANDRESS
    (July 16, 1931. Opinion and Decree.)
    (August 12, 1931. Rehearing Refused.)
    Albert P. Garland, of Shreveport, attorney for plaintiff, appellee.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

This is a suit to recover damages resulting from a collision of the automobiles of plaintiff and defendant at the intersection of Fifth street with Centenary boulevard in the city of Shreveport on November 5, 1930. There is negligible difference between the parties as to the facts.

Plaintiff was driving south at the rate of from 25 to 30 miles per hour in his Willys-Knight sedan en route to his home at the southern limits of the city of Shreveport. Leaving the business section of the city via Market street he drove over the Market street viaduct which spans a depression or cut in the earth’s surface of considerable width. This viaduct is constructed of concrete', contains a roadway for vehicular traffic 33 feet wide, and on each side there is a balustrade of concrete approximately five feet high. The roadway from southern end of the viaduct is named Centenary boulevard. Fifth street intersects the boulevard at right angles, on west side, at its north end. The balustrade on west side, southern end, of the viaduct turns west on north side of Fifth street and continues down a slope to the bottom of a depression, as far as that street is paved. This intersection, on account of the obstruction to vision caused by the balustrade on Fifth street and the viaduct, is considered a dangerous one for vehicular traffic.

Defendant, driving his Ford sédan, came from the west on Fifth street, and to make the grade of that street as it approaches Centenary boulevard the car was put in second gear and was moving at the rate of about 16 miles per hour. He was on the north side of Fifth street, near the balustrade, and “cut” the (his) left-hand corner on entering the boulevard. He admits he did not stop the car as the intersection was reached but continued without even slowing down to' observe traffic. He was in the act of turning to his left (northerly) when tlje car of plaintiff, on west side of the viaduct roadNvay, emerged into view. Neither party knew of the other’s presence until within a few feet of each other, and under circumstances which made it humanly impossible' to avert a collision. ' The impact was great. Defendant was knocked entirely from his car and wounded, while the car was turned around, facing south, and that of plaintiff stopped some sixty feet away, with both left wheels upon the' opposite sidewalk.

By ordinance of the city of Shreveport, Market street (including the viaduct) and Centenary boulevard are right of way streets; that is, traffic entering from either side is required to stop before doing so. Persons traveling on these right of way streets ■ have the legal right to assume that the law will be observed by those entering from intersecting streets. Maximum rate of travel on these streets is also fixed by ordinance at 23 miles per hour. At a point a short distance west of the intersection of Fifth street with the boulevard, the city caused to be painted in large white letters the word “STOP,” beyond which, towards the boulevard, was drawn a plain white line entirely across the street. The accident happened at 11:30 o’clock, p. m. The locus in quo is well lighted at night.

Plaintiff alleges that the accident was due entirely to defendant’s carelessness and negligence in not observing the law with regard to bringing his car to a stop at the intersection of said streets, while defendant contends that the accident was duq to. plaintiff’s “dangerous, reckless, negligent and unlawful” rate of speed, in excess of 23 miles per hour as fixed by city ordinance, and to his failure to keep a proper lookout and not having his car under proper control. In alternative, defendant pleads that should it be found that he was to any extent negligent, that as plaintiff’s own negligence contributed to the accident and was the proximate cause ’thereof, he cannot recover in this suit.

Plaintiff seeks judgment for $1,039.98 as follows: Costs of repairing his car, $689.98; for loss of use of car for 30 days, $150, and for depreciation in value of the car on automobile market, as a result of the collision, $200.

He recovered judgment for cost of re-, pairing car and for $100 for inconvenience and loss of its use while being repaired. Defendant prosecutes appeal.

It is conceded that plaintiff was on his side of the road, and that defendant was not on his, when the collision took place. It is admitted by defendant that he did not observe the stop sign at the intersection, and did not “stop, look and listen” as’ he was bounden to do by law and rule of the road, to protect himself and the traveling public from injury. He admits that he was on his left-hand side of the street and undertook to enter the viaduct by sharply turning to his left and “cutting the corner.” Each of these acts constitutes negligence of the grossest sort under the circumstances. This intersection is a dangerous place for traffic and one who fails to strictly observe the traffic regulations applicable to such simply assumes, without prudent consideration, that the way is clear for him to enter the boulevard or viaduct; or else acts with a wanton disregard for the rights of others, and of his own safety.

Plaintiff admits that he was traveling at a rate of speed slightly in excess of that fixed by ordinance, but we are unable to see that this fact contributed in the least to the collision of the cars. Had he been moving faster or slower, defendant, since he did not stop, look and listen at the intersection, would not have discovered his presence, and he would not have observed defendant, any quicker than was done. When defendant suddenly emerged from Fifth street into the boulevard plaintiff’s car was upon him. Had defendant used ordinary care and precaution he could have seen the reflection of the lights of plaintiff’s car coming at right angles to him and the accident could have been avoided. The evidence clearly establishes that defendant’s negligence caused the accident, and therefore he must be held liable for the consequences.

“Ordinance requiring vehicle approaching right of way street to come to full stop must be observed literally; slowing down being insufficient.

“Driver of vehicle has right to presume another driver will obey traffic laws.”

Arena v. Morris & Co., 14 La. App. 563, 130 So. 565.

“It is duty qf automobile driver, before entering main highway from side road, to look and listen for approaching cars.” Bryan v. Magnolia Gas Co., 13 La. App. 52, 127 So. 124.

“If view of highway is obstructed, driver of automobile on side road entering highway must use extreme care, but he is not required to leave his automobile and walk to highway.” Bryan v. Magnolia Gas Co., 13 La. App. 52, 127 So. 124; Pope v. Locaseio, 13 La. App. 304, 126 So. 727, 729.

“If any weight or consideration is to be given to an ordinance giving the right-of-way to vehicles which approach intersections from one street over those which approach from another, we think the driver who is required to yield the right-of-way must exercise a higher degree of care at intersections than the driver of the vehicle which has the right-of-way.” McCalmont v. Sterkx, 5 La. App. 730.

“The traffic ordinance requiring a vehicle approaching a right-of-way street to come to a full stop must be observed literally; it will not be sufficient to slacken speed.” Johnson v. Jahncke Service, Inc., 7 La. App. 348.

“The third charge is that defendant approached First street at a speed of thirty miles an hour, in excess of the speed limit. * * * The limit of speed fixed by the ordinance was twenty miles an hour. The defendant admitted that he was running at a speed of twenty-two miles an hour. The difference between the two is but slight. But the excessive speed was not the cause of the collision, as we shall show hereafter, and the violation of an ordinance cannot be charged as negligence unless it was the cause of the accident.” Lydia Belden v. G. N. Roberts, 3 La. App. 338; Lopes v. Sahuque, 114 La. 1004, 38 So. 810; Hudson v. Jackson Brew Co., 4 La. App. 549; Mrs. B. K. Stern v. Yellow Cab Co., 2 La. App. 273; Uzzo v. Vincent Torres, 3 La. App. 292.

During the trial of this case in the lower court defendant sought to introduce evidence to establish the value of plaintiff’s car before tbe accident and since being repaired but, on objection, sucb evidence was ruled out on the ground tbat it was not admissible under tbe pleadings. Defendant’s position is tbat tbe cost of repairing plaintiff’s car exceeded its value before tbe accident, and we assume was not worth $689.98 after being repaired, and tbat tbe damage tq tbe car could not exceed its value. We are asked to remand tbe case to tbe end tbat testimony of tbis character may be introduced at another trial. Plaintiff contends the evidence defendant sought to introduce was not admissible because the defense, which the evidence might support, was not specifically raised by tbe pleadings. Defendant’s answer to this argument is tbat plaintiff must prove his damages and a denial of his allegations on the question of damages opened the door for admission of the proffered testimony. '

We think tbe ruling of tbe lower court correct. While it is’ true plaintiff carried the burden of proof with respect to establishing the damages sustained by him on account of tbe negligence of defendant, yet, in tbe absence of tbe issue being specifically tendered by tbe answer of defendant, be was not • required to establish, nor to be in a position to traverse testimony of defendant offered to establish that his automobile before the accident, and even after being repaired of damages received in the accident, was worth less than the amount of tbe cost of making repairs.

It is true, as a general rule, tbat a thing cannot be damaged for an amount beyond its true value. What may be tbe true value of a piece of machinery, after being used for a length of time, is a question about which competent persons often widely differ. However, this rule has its exceptions. It now seems to be fairly well fixed in our jurisprudence that damages to automobiles is an exception. The following excerpts from Bianchi v. Mussachi, 1 La. App. 291, sustain this proposition:

“The defendant resists payment on three other grounds:
2. “That the fenders and other parts of tbe car damaged were old and dilapidated. Tbe law makes no provision of old for new. Tbe defendant’s obligation is to replace all the parts of tbe car be bad damaged.
3. “Tbat plaintiff paid only $265.00 for bis oar two years before, and that tbe allowance of $148.85 damages for repairs was out of all proportion, and tbat tbe car at tbe present date was worth only $100.00.
“Defendant’s obligation was to put back plaintiff’s car in tbe same good running order in which it was prior to tbe accident. It is bis misfortune if this has cost $148.85. The price plaintiff paid for it is no concern of his. It often occurs that the cost of repairing a car will amount to more than its actual value, and sometimes to more than the price of a new car, on account of tbe labor of taking the damaged car apart and the costs of the .new parts and tbe labor of assembling them.”

Application was made to tbe Supreme Court to review tbis case but that court declined to do so, thereby, in effect, approving tbe judgment and findings of tbe Orleans Court of Appeal. Since tbe rendering of tbis decision tbe question, in about tbe same form, has been before tbe Court of Appeal twice, and the doctrine affirmed in both of the cases. See Vila v. Westfeldt, 7 La. App. 552; Harrison v. Loyocano, 12 La. App. 228, 125 So. 140.

Plaintiff’s car bad run 4,000 miles when be purchased it for $1,500, eighteen months before the accident. At date of accident it had only been run 24,000 miles, according to the speedometer. The amount of repairs has been established and an itemized list of same was filed in evidence. It is not contended that any of the repairs were unnecessary or that the cost of same or of the labor was more than it should have been.

For the reasons- herein assigned the judgment appealed from is affirmed.


text:
    No. 4062
    Second Circuit (Second Division)
    MILLER v. FRANK GROCERY CO., INC.
    (July 16, 1931. Opinion and Decree.)
    (August 12, 1931. Rehearing Refused.)
    T. Overton Brooks, of Shreveport, attorney for plaintiff, appellee.
    Jackson & Smith, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff brought this suit against defendant to recover compensation at the rate of $16.50 per week for a term of 400 weeks on account of alleged permanent injuries sustained by him on November 26 or 27, 1929, arising out of and in the course of his employment with defendant. He alleged that his duties under his employment were to operate trucks and automobiles of defendant, a wholesale grocery and produce distributing company in the city of Shreveport, and to load and unload same; that while in the act of lifting and carrying a heavy hag • of sugar to he placed on a truck, he fell; that said fall and consequent injury produced a hernia on the right side of his abdomen and in .addition thereto his hack was severely sprained and wrenched; that immediately after said fall he gave notice thereof and was removed to a hospital where he was operated on for hernia on January 3, 1930; that as a result of said injury his right side, leg, knee, back, spinal column and spinal cord have been permanently impaired and affected, and, at the time of filing this suit, he states that he could not perform work Qf any reasonable kind or character; that he is a colored man, without education, and has earned a living by manual labor only, and on account of said injuries has been deprived entirely of a means of livelihood. He also sued for $250 medical, hospital and surgical fees.

Defendant admits employment of plaintiff by it and for the wages alleged; that defendant is an uneducated colored man and that he underwent an operation for hernia on or about January 3, 1930, which operation, it is averred, was successful; that a dispute exists between it and ¡plaintiff with respect to its liability for the payment of compensation. All other allegations of fact of the ' petition are denied.

There was judgment for plaintiff for $10.72 per week for the period of his disability not exceeding 400 weeks, less a credit of $35, with interest on all past due payments from January 3, 1929. Defendant appealed.

On November 26, the date of plaintiff’s injury, he drove defendant’s Ford truck to the Electric Maid Bakery shop to deliver some sugar and to take in exchange for it other sugar which the bakery had purchased of defendant. As he would carry a sack of sugar into the bakery he would bring one out and deposit it in the truck. It was necessary to ascend and descend a flight of steps (the evidence does not show the height) to. accomplish the exchange . of the sugar and while making a return trip towards the truck he slipped' on the greasy floor, according to his testimony,. and fell down three or four steps. The sack of sugar weighed 100 pounds and rolled down the steps to the floor. With some assistance defendant completed the loading of the sugar on the truck and returned it to defendant’s warehouse about the noon hour. His foreman, a Mr. McIntyre, was absent at the time and he testified that he reported his fall to Mr. God-win and to Mr. Rogers, defendant’s shipping clerks who, he said, were busy and gave no heed to what he was saying. However, Rogers denied, or could not recall, that- plaintiff had informed him of his accident. Mr. Godwin recalled hearing that plaintiff had been hurt, but could not say who told him, nor the time, but says it could have been on the day it happened.

Will Vine, a colored boy, an employee of the Electric Maid Bakery Shop, was present at the time plaintiff claims to have been injured there. -He testified that plaintiff brought some sugar to the shop and carried a load back; that the sugar was kept upstairs; that he, witness, “heard a little noise “up there,” and plaintiff came down holding his side and said, “I fell up there and hurt myself.” This witness did not see plaintiff fall, but stated plaintiff came on down the steps immediately after the 100-pound sack of sugar had reached the floor.

Mr. McIntyre, director of defendant’s delivery. trucks and labor, as a witness, testified that on December 1 plaintiff mentioned his trouble to him, stating that he had hurt his side in a fall at the Electric Maid Bakery Shop delivering sugar; that he continued to complain to him at intervals but carried on his work; that defendant sent plaintiff to Dr. Green on December 7. He returned after seeing this doctor and continued to work at his regular employment until December 28, at which time he told this witness that he would not be able to work any more and would have to quit. He again consulted Dr. Green and the operation was decided on. Dr. Green did not perform the operation himself. Plaintiff «testified that this physician, after examining him physically declared that he had hernia and that an operation would be necessary, but that the doctor tried to “get around it” by treating him. He states that he has not tried to work since che operation because he was disabled and afraid he would “bust that place again”; that his hip hurt and ached him. Mr. Brabston, treasurer and' general manager for defendant, authorized the operation and paid the expense bill for his company. He stated that he received information that plaintiff had been injured in some way about two weeks after it is alleged to have occurred.

Defendant dispensed with plaintiff’s services after the operation. He has not been able to do manual labor since.

Plaintiff had been in the employ of defendant for about ten years. He was regarded by his employer’s officers as an honest, reliable laborer, who did his work _ well. Prior to date of alleged injury he was, to all appearances, in good physical condition, though not robust.

Dr. H. A. Durham, chief surgeon of the Shriners’ Hospital for Crippled Children, at Shreveport, specializing in bone and joint surgery, made physical examination of plaintiff on day of trial (October 23, 1930), to ascertain if there -was injury to his back. He also examined the x-ray pictures made of plaintiff’s spine. Dr. Durham found “considerable rigidity in the spine from above the mid-portion down to the hips; that he had no extreme range of motion, and attempting a lateral motion, bending, was painful, evidencing a definite restriction; that there is definite rigidity in the lower dorsal and lumhar portions of the spine.” He stated that the x-ray pictures accounted definitely for the impaired motion; that plaintiff had definite bony changes in the back, a spurring or lipping of the twelfth dorsal, third, fourth and fifth lumbar vertebrae; that a bridge between two of the vertebrae was about half an inch wide and had the appearance of having been recently fractured — within a .few months; that this fracture was through the area formerly fused, an arthritic condition; and that it could have been caused by an accident, such as a fall, and, if so, pain like that complained of by plaintiff would have followed; that if a person affected with such abnormal conditions, as was found in plaintiff’s back, suffered an accident such as plaintiff claimed he had, he would expect, as a result, the pains and aches complained of by plaintiff, to follow.

Dr. Durham also found hernia in plaintiff’s right side, “definitely pronounced but not extremely large,” just below scar left from the operation for hernia by Dr. Pirkle. He abbreviated his findings of conditions in plaintiff’s back as being “a trauma superimposed on an old arthritis,” a condition commonly seen in men that do heavy work and take poor care of themselves; that the arthritic condition found in plaintiff’s vertebrae existed a long time before he was injured, and is discernible from the twelfth dorsal vertebrae to the scrotum; that such conditions are attributable to infection in system and may not cause pain, but when enhanced by irritation, a strain, trauma or wrenching, become painful; that the breaking of the fusion of two vertebrae would be equivalent to a fracture and pain would result, which should be felt by the patient within a very brief time after the injury; that such pain would be referred by the nerves to other parts of the body.

Dr. Durham also found that plaintiff had been previously operated on for hernia in the left side. In his opinion plaintiff’s inability to do manual labor was the result of an injury to him — the fracture — plus the trauma he sustained, and that this condition is probably permanent.

Dr. Edwards made x-ray pictures of plaintiff’s back. He corroborates the testimony of Dr. Durham in respect to the arthritic condition found in plaintiff’s vertebrae, the fracture, the possible causes thereof, and effects. He stated that one whose spine was affected in the manner of plaintiff’s could not continue to do manual work, would' have to quit, and that on account of plaintiff’s age (57 years) his condition was probably permanent.

Dr. Cassidy examined plaintiff twice. Once about a week before trial and then on day before trial. He found hernia of the right side immediately below the scar of former operation. This was a recurrence of former hernia. It protruded somewhat through external inguinal ring, but did not descend into the scrotum, and could have been caused by stitch of old wound not holding. It was about half the size of medium size lemon. His testimony fully corroborates that of Dr. Durham and Dr. Edwards with regard to conditions of plaintiff’s back, disclosed from physical examination and x-ray views. He states that the arthritic condition in and about the joints is attributable to pus focus in the body of long duration, which has been aggravated, and flared up, by some injury, fracture of bones, undoubtedly due to traumatism. He thought plaintiff’s condition was 'permanent.

Dr. Pirkle, witness for defendant, stated that he operated on plaintiff for hernia of the right side on January 3, 1930, and for hernia of left side some four years prior; that the last operation was a successful one; that he had no information concerning, and did not know of, any trouble to plaintiff’s back at-» the time of the operation; that he found a little knot or lump near the point of the operation on right side, was positive it was not a return of the hernia, but a little mass where the sutures held the tissue together; that he could find no objective symptoms of injury to plaintiff’s back, though he made physical examination of him the day before the trial. He admitted tha.t he had certain pride in his operations and seeing them “hold up.” He added that it generally requires three months for a man to recover from an operation for hernia.

Dr. T. E. Williams, associated with Dr. Pirkle, made x-ray pictures of plaintiff’s pelvis and lower lumbar region. He found conditions in and about this part of plaintiff’s body about the same as the other physicians who testified for plaintiff, but thought these conditions could originate from natural exercise of a man without any trauma; that the apparent fracture, seen from the pictures, could have been caused by natural bending of the body, but-added that plaintiff’s back conditions— the fracture — could have been caused by a fall, such as plaintiff claims to have experienced.

It is not seriously disputed that plaintiff, at date of trial of this case, and since he underwent operation, was disabled to such extent that he could not do manual labor, the kind of work he followed until injured. Defendant’s contention is that plaintiff’s ailments came on gradually and •not as the result of accident or injury arising out of.and in the course of his employment. There is some dispute as to whether plaintiff notified any of defendant’s officers of his accident before December 1, when Mr. McIntyre admitted he disclosed the fact to him, but it is not disputed .that he complained regularly of his pains and aches to defendant’s employees until December 7, at which time he was instructed to see Dr. Green for advice and treatment. Dr. Green was not called as a witness and the failure to do so is not explained.

The evidence, in our opinion, fairly well establishes plaintiff’s allegations with respect to him slipping and falling at the Electric Maid Bakery Shop on November 26, 1929. It will not be seriously doubted that if he did fall there with a 100-pound sack of sugar on his shoulder that such could have easily produced the various troubles he claims to be suffering from, and in view of the fact that he was amply able physically to efficiently discharge the duties he owed his employer prior to the accident, and that he was considered by defendant as being an honest, reliable man, coupled with the noticeable change in his physical appearance and condition very soon after the accident, and his own undisputed testimony that he had no hernia prior to that date, we have no difficulty in reaching the conclusion that, within the meaning of the Workmen’s Compensation Law (Act No. 20 of 1914, as amended), the injuries sustained by him, causing his disability, arose out of and in the course of his employment. And this is true, whether the hernia alone, or the fracture in the vertebrae alone, or both, produced or contributed to such disability.

Dr. Pirkle testified that plaintiff should have recovered from the effect of the operation for hernia within three months so as to have resumed the work he was doing for defendant. It is certain he had not recovered his health sufficiently at date of trial, some ten months after the accident, to do manual labor-. This condition primarily was due to one of two causes: the operation on January 3 was not a success and there was recurrence of the hernia, or plaintiff’s continued disability was contributed to, or caused entirely by, other injuries received by him, or latent disease .was aroused and became active, as a result of the accident at the bakery shop, if the operation was a success.

In either case defendant would be liable for the payment of compensation to plaintiff during the period of his disability.

“In compensation case under Employers’ Liability Act (Act No. 20 of 1914), it is immaterial whether employee’s continued disability directly resulted from the injury or from a condition resulting from the injury, or whether the injury was the sole cause, or merely a contributing cause.” Blackman v. Pope Engineering & Supply Co., 11 La. App. 92, 120 So. 682; and re-bent case of Anderson v. La. Oil Refining Corporation, 134 So. 343, decided by this court in May, 1931.

Act No. 85 of 1926 contained special provisions governing actions to recover compensation for disability resulting from hernia, which were not in the original Act nor in amendments prior to that time; but these special provisions were omitted from Act No. 242 of 1928, and are therefore not in effect, being repealed by implication. As the law now stands, an employee whose injuries result in hernia, producing total disability to do work of any reasonable character, may recover 65 per cent, of his weekly wages during the period of disability, not exceeding 400 weeks. James v. Hillyer-Deutsch-Edwards, 15 La. App. 71, 130 So. 257.

Plaintiff admits in brief that defendant has paid all medical, hospital, and surgical expenses on account of his injuries and disability to date of trial.

Judgment appealed from is affirmed.


text:
    No. 4107
    Second Circuit (Second Division)
    THIBEAU v. DUTTON & MERCER
    (July 16, 1931. Opinion and Decree.)
    (August 12, 1931. Rehearing Refused.)

      John G. Gibbs, of Shreveport, attorney for plaintiff, appellee.
    Foster, Hall, Barrett & Smith, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff, while employed by defendant, a co-partnershio, as engineer or operator of a drag-line machine, used in handling dirt, on December 28, 1929, in the course of his employment, suffered injury to his right foot, as a result of the beam or boom of the machine, while in motion, jamming the foot against another part of the machine, fracturing some bones, spraining ligaments, and bruising tissue. He had been in defendant’s employ for more than two years, and was being paid $35 per week for his services. He alleges total and permanent loss of use of this foot and of the right ankle as a result of said injury, and sues for 65 per cent of his weekly wages, not exceeding $20, for a period of 125 weeks, less a credit of $320 compensation he admits defendant has paid him. He also sues for medical expenses to the amount of $250. In a supplemental petition, plaintiff alleges that defendant or its insurer has paid him compensation for 16 weeks at the rate of $20 per week, and that said insurer has provided some medical treatment to him, but has refused payment of further amounts on -this account, or as compensation.

Defendant filed an exception of no cause or right of action which was overruled. It is not insisted on in this court.

Defendant’s answer admits employment of plaintiff as alleged and admits he suffered an injury cf some • kind to his right foot, but denies that such injury was of the nature and extent claimed by plaintiff; and specially denies liability for compensation beyond the amount already paid to him; that plaintiff has been paid compensation at rate of $20 per week for 23 weeks, or a total of $460, from December 28, 1929; and that its insurer had paid, or had obligated itself to pay, medical bills, expenses, etc., on behalf of plaintiff, to the amount of $250. Defendant prays that plaintiff’s suit be dismissed at his cost, and his demand rejected.

The lower court found, as the evidence clearly shows, that plaintiff had been paid by defendant’s insurer $440 as compensation at the rate of $20 per week, and, as' the judgment is silent with respect to medical expenses, we assume it was found, as evidence also shows, that these had been discharged to the maximum of defendant’s liability. The lower court fixed plaintiff’s disability at 30 per cent.

The judgment of the court, in part, is here quoted:

“It is ordered, adjudged and decreed, that there be judgment herein in favor of the plaintiff, John R. Thibeau, and against the defendant, Dutton & Mercer, in the sum of Six Dollars ($6.00) per week for a period of Seventy-three and two-thirds weeks (73%),-less Twenty-two weeks (22) which is credited by. reason of an overpayment as a result of the twenty-two weekly payments' made in the sum of $20.00 per week, totaling < Four Hundred Forty Dollars ($440.00), leaving a balance due of Fifty-one and two-thirds weeks (51%) at $6.00 (Six Dollars) per week, first payment being due June 1, 1930 and weekly thereafter, with interest at the legal rate from June 1, 1930 until paid on any and all past due amounts.”

What the court really awarded plaintiff was compensation at rate of $6 per week for .125 weeks, giving credit at end of the term for 51% weeks overpayment-to June 1, 1930, at which time further payments were refused. Dividing $440 by $6, a product of 73% is obtained, and, deducting from this number the 22 weeks for which payment is admitted, the result is 51%.

Defendant appealed from this judgment. Plaintiff has answered the appeal, and prays that the judgment be increased to the amount sued for.

The day plaintiff .vas injured, he was removed to the Schumpert Sanitarium in city of Shreveport, his foot was set and other treatment administered to him. At the expiration of about three weeks, on account of infection of the outer portion of the foot, an operation was found necessary. A horizontal incision of some inches was made between the little toe and a point below the ankle joint. The evidence does not definitely reveal the exact time required for this wound to heal, but the process was slow. On February 3d, plaintiff left the sanitarium hut continued to make trips hack there, with assistance of defendant, for treatment. At time of trial, December 16, the wound had entirely healed, but the foot had not regained its normal size, requiring a shoe one size larger than worn before the injury. This condition is due to callous on and about the injured bones and will eventually disappear, according to testimony of physicians. Two or three of the bones of the foot in the process of healing grew together, causing an impairment in flexibility.

The evidence does not show total disability of plaintiff, on account of the injury to his foot, beyond two months. When this case was tried, he was again in the employ of defendant, operating the drag-line. It is not shown when he resumed this work. He lived 12 miles from his work and drove his own car back ánd forth. He' testified that in the morning he felt no pain in the foot, but if he walked on it or otherwisé used it for any length of time it did pain him. There is some evidence tending to show that plaintiff will go through life with his right foot “flat,” a condition not existing in the left. However, we do not think the evidence justifies a conclusion to this effect. We think the evidence establishes with reasonable certainty that the abnormal conditions of plaintiff’s foot, noticeable on day of trial, will pass away and that member, for all practical purposes, will again function as before the injury.

As is usually the case, the expert testimony touching the extent of plaintiff’s disability, is conflicting, though not as much as often occurs. With one exception the physicians fix this disability at 20 per cent and 25 per cent. . Dr. Garrett, who treated plaintiff at the sanitarium, testified that when he was discharged the disability, in his opinion, was 20 per cent.

In his brief, plaintiff calls attention to the lower court making no award to him for the period and on the basis of total disability, and then submits two propositions for our consideration:

First. That as plaintiff has sustained a “total partial disability of 50 per cent,” he should be given compensation of $11.37% per week (50 per cent of 65 per cent of weekly wages of $35) for 125 weeks.

But, second. If trial court’s finding of 30 per cent disability is approved, then compensation of $6.82% per week (30 per cent of 65 per cent of weekly wages) for a period of 125 weeks should be awarded.

This contention of plaintiff was first raised in the district court on motion to revise judgment. In overruling the motion, the judge a quo said:

“Now, in support of the motion, plaintiff Cites the ease of Brown v. Vacuum Oil Co. (La. Sup.) 132 So. 117, holding:
“If the plaintiff had suffered the loss of the use of his leg entirely, he would have been entitled to 65% of his wages for 175 weeks, which would have been Twenty & 47/100 ($20.47) Dollars a week.
“As he has suffered only the loss of 30% of the use of the leg, it follows that he is only entitled to 30% per week of the amount due him if he had lost, his leg for a period of 175 weeks, say Six & 14/100 ($6.14) Dollars per week.”

We cannot consider the case as authority. The point in the case at issue did not seem to have been raised in the quoted case, and the court was not even considering that phase. Furthermore, the court, in the first paragraph, fell into an unintentional error in stating the employee was entitled to more than $20 for total loss of use. The court very evidently forgot,. for the moment, that $20 was the maximum recovery in any case.

“What the Court stated in the second paragraph, being based on the unintentional misstatement of the law contained in the first paragraph, carries no weight, and we do not feel constrained to follow it.”

We agree with the ruling of the trial judge on this question. In case of total disability, the injured employee is not entitled to compensation in excess of $20 per week, and, if there is partial disability, the maximum allowance should be reduced in proportion to the extent of the, disability.

In this court, defendant submits and urges two propositions of law.

First. Can a claimant, who has been paid all the compensation due for his injury up to and beyond thé time of filing suit and up to and beyond date of judgment; obtain a judgment for compensation not yet due?

Second. How should excess compensation payments be credited? By reducing the number of weekly payments, or by applying same to the weekly payments as they serially fall due?

Defendant supports the first proposition with argument, forceful and earnest, to the ■ effect that where it is shown that the employer has paid the maximum of compensation for which he is liable, as found by the court, to or beyond the time suit is filed to have the compensation judicially fixed, the suit is premature and should be dismissed.

The Legislature of 1926, to meet the situation created by the decision of the Supreme Court in Daniels v. Shreveport Refining Corp., 151 La. page 800, 92 So. 341, and the decision of the Court of Appeal, First Circuit, in Vining v. Lock, Moore & Co., 1 La. App. 200, amended the Workmen’s Compensation Law by adopting section 18, subdivision 1, par. B, of Act No. 85 of 1926, p. 120, which reads as follows:

“Unless in the verified complaint above referred to it is alleged (where the complaint is filed by the employee or his dependents) that the employee or the dependent is not being or has not been paid, and that the employer has refused to pay, the maximum per centum of wages to which petitioner is entitled under the provisions of this act, the presentation or filing of such complaint shall be premature and shall be dismissed; when such allegation is contained in such complaint and is denied by the employer at the time fixed for the hearing thereunder by the Court, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed; and the question of whether or not such allegation of nonpayment is justified under the facts shall be determined by the Court before proceeding With the hearing of the other issues involved.”

Prior to this amendment, the injured employee or his dependents could invoke the court’s aid and secure judgment fixing amount and term of compensation, although there was no disagreement as to amount. The amendment primarily intended to make this impossible as long as 'employer was complying with the agreement by making the weekly payments.

Defendant’s position, when further analyzed, is this: That since the court has found only 30 per cent disability to plaintiff’s foot and awarded compensation for a period of 125 weeks, and since payment in the aggregate of $440 had been made pri- or to filing of this suit, which was sufficient to discharge the court’s award until May, 1931, only a moot question is presented which the court should not be called upon to decide, and which it should not decide, for, by so doing, defendant would be cast unnecessarily and unjustly for considerable cost.

The allegations of plaintiff’s petition meet the contingency mentioned in the first part of the quoted 1926 amendment, and since defendant denies that it has not paid the maximum amount of its liability as employer, under the law, an issue of prematurity is tendered, under the latter part of said amendment which should be, as required thereby,., disposed of before proceeding to determine other issues involved. The record does not disclose whether or not this question was urged in the lower court. We are disposed to think it was not. It is not specifically raised in the answers.

We quote the following pertinent excerpt from defendant’s brief:

“In the present case, practically the entire controversy on the facts concerns the degree of impairment; and, therefore, a preliminary adjudication of that issue could not have been practicable., The matter is, therefore, now before the Court for adjudication as the original issue to be decided. It is the issue of whether or not the allegation of non-payment is justified which ‘shall be determined by the Court before proceeding with the hearing of the other issues involved’.”

Twenty-two weeks following plaintiff’s injury expired on June first. The evidence in the record does not disclose the extent of his disability on that date, nor does it disclose the extent of disability on July 3d, when this suit was filed. He contended then that the disability was total. Defendant contended, and now contends, that all compensation due by it had been paid; that the maximum of its liability on that account had been discharged, and declined to make additional payments. That position was advanced in its answer and emphasized in argument and brief. Plaintiff still contends that his disability is 50 per cent, and that compensation should be awarded on that basis. In view of these facts and the dispute between the parties, no one could say which, if either, was right, and no means were available to determine that issue, save resort to the court. The court was powerless to decide the matter without the introduction of evidence in a trial, and, when this had been done, the position of neither side was entirely upheld. It is true that, under the court’s award of compensation, defendant had overpaid plaintiff 51% weeks, but it required the institution and trial of this suit to secure this1 definite fixing of the relative rights of the parties.

Subdivision 1 (A), sec. 18 of Act 85 of 1926, p. 120, provides:

“That in case of a dispute over or failure to agree upon a claim for compensation between employer and employee, or the dependents of the employee, either party may present a verified complaint to the Judge of the District Court which would have jurisdiction,” etc.

This complaint should contain the detail data required by the statute so that the judge may be informed thereof, and the defendant, when served, may intelligently answer and defend the action.

Subdivision 1 (B) requires that this verified complaint must allege that complainant or his dependents are not being paid, or have not been paid, and that the employer has refused to pay the maximum per centum of wages to which he, or they, are entitled under the provision of the statute. Failure to make such allegations subjects the complaint to dismissal .as premature. However, if such allegations are made in the complaint and are denied by the employer, if it be shown that they are “without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed.”

Can it not be truly ■ said, in this casé, that defendant has refused to pay the maximum per centum of wages to Which plaintiff is entitled? If so, plaintiff’s complaint is not “without reasonable cause or reasonable foundation.” Defendant refused to make further payments, and refused to agree to make them, after paying $440, which, as subsequent developments revealed, was not sufficient to cover ■the maximum of its liability. The excess payments had no other effect than to shorten the term of the payments.

In Moss v. Levin et al., 10 La. App. 149, 119 So. 558, 120 So. 258, the court held that an injured workman, as long as he was being paid $20 per week compensation, even where there was a dispute as to the period of time over which such payments should be made, could not invoke the assistance of the court to have the period fixed. The converse of the proposition should be true. If such payments were not being made, but were refused, the right to sue arose. This case was decided after the adoption of the 1926 amendment.

“An action is not premature under a workman’s compensation statute, even though defendant is willing-to pay all that he thinks is due plaintiff, if in point of fact plaintiff and defendant differ as to what may be due.” Ford v. Fortuna Oil Co., 151 La. 489, 91 So. 849.

We are of the opinion that the amendment of 1926, q,uoted hereinabove, was not intended to, and does not in reality, apply to a case wherein the facts are as disclosed in the case at bar, and that plaintiff’s suit is- not premature.

We further hold -that, in case of disability, the term “maximum per centum of wages to which petitioner is entitled under the provisions of this act,” refers to and means the maximum per centum of wages as definitely fixed by the statute in particular cases, such as, for illustration, 65 per cent of weekly wages for the loss of a foot, for a period of 125 weeks, or during period of total disability caused by injury to a foot.

“Any voluntary payments made by the employer or his insurer either in money or otherwise, to -the injured employee, or his dependents, and which are accepted by the employee, which, by the terms of this act, were not due and payable when made, may, subject to the approval of the court, be deducted from -the payment to be paid as compensation; provided, that in case of disability, such deductions shall be made by shortening the period during which compensation shall be paid, and not by reducing the amount of the periodical payments.” Subdivision 6, sec. 8, p. 114, Act No. 85 of 1926.

The Supreme Court had occasion to construe this provision of -the Workmen’s Compensation Law in the case of Hulo v. City of New Iberia, 153 La. 284, 95 So. 719, and held that excess' payments, voluntarily made, should be credited by shortening the period during which compensation shall be paid, and not by reducing the amount of periodical payments. This construction simply follows the plain language of the statute.

Counsel of defendant concede the correctness of the court’s ruling on this point when applied to cases of disability, but seemingly argue that plaintiff does not fall in this class of beneficiaries of the law.

There are but two kinds of beneficiaries under the Workmen’s Compensation Law: (1) The disabled employee; and (2) his dependents, when he is killed. With regard to the first class, excess voluntary payments of compensation must be credited by reducing the number of weekly payments; while with respect to the second class, the court has some discretion as to the disposition of such excess payments.

The ruling of the lower court on the question is ' right.

The judgment in this ease made no award to plaintiff on the basis of temporary total disability, but fixed the compensation at an amount and for a period doubtless deemed to be fair and equitable to both sides, in view of all the facts and circumstances of the case.

“For injury producing temporary total or temporary partial disability the Court, may in its discretion, award compensation for a fixed number of weeks to be based upon the probable duration of such disability.” Act No. 242 of 1928, p. 362.

We believ.e the judgment appealed from does substantial justice between p.laintiff and defendant, and it is,, therefore, affirmed.


author: HIGGINS, J.

text:
    No. 13,672
    Orleans
    UNTEREINER v. FEDERAL FURNITURE STORE, ET AL.
    (July 1, 1931. Opinion and Decree.)
    Geo. J. Untereiner, of New Orleans, attorney for plaintiff, appellee.
    A. Melville Wolfson, of New Orleans, attorney for defendants, appellants.
   HIGGINS, J.

Plaintiff is the owner of the premises bearing municipal number 1631 Seventh street. Miss Marie Delery leased these premises for a term of two years commencing October 1, 1928. The other two defendants, to-wit, Richard Perloff and Maurice Cohen, compose a partnership known as Federal Furniture Store. Miss Delery had purchased from Perloff and Cohen furniture for the price of approximately $300, and this furniture had been installed in the leased premises. About one year prior to the events complained of by plaintiff, Miss Delery had found it impossible to make payments on a portion of the furniture and had prevailed upon the vendors thereof to take that particular furniture back, which they had done. On August 13, 1929, Miss Delery had again called on Messrs. Perloff and Cohen and prevailed upon them to take back the balance of the furniture, inasmuch as she was unable to make the payments due thereon. Shortly thereafter plaintiff instituted provisional seizure proceedings against Miss Delery for rent which was past due and which was to become due and, in that suit, by rule, called upon Messrs. Perloff and Cohen to point out the furniture which they had removed.

Plaintiff in that suit has never seen fit to set down the rule for trial, but, instead of doing so, has instituted this action, which is a suit for damages, against Miss Delery and the other two defendants based on a charge of conspiracy; it being alleged that the three defendants conspired together to hide the furniture and defeat plaintiff’s lien.

The record utterly fails to show any conspiracy, and all that appears is that the other two defendants, Perloff and Cohen, to whom the third defendant, Miss Delery, was indebted, found it advisable to permit her to deliver back to them the furniture for which she had been unable to pay. There was nothing unlawful in their «permitting her to do this. Brierre v. Rice-hulling Mfg. et al., 6 Orl. App. 142. It appears to us that if plaintiff has any , rights against Messrs. Perloff and Cohen, they should be asserted under the rule which she has taken against them in the provisional seizure suit, and that in that rule she should call upon them to point out the furniture which she claims is subject to her lien. ' It is certain that she has made out no case against them in this suit.

The court below rendered judgment against Messrs. Perloff and Cohen for $125.75, with interest, etc., and also against Miss Delery. Inasmuch as no conspiracy has been shown, we believe that the entire judgment should be reversed and that plaintiff’s rights against all defendants should be asserted in the provisional seizure suit to which we have referred.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that this suit' be dismissed at the cost of plaintiff, but with reservation of plaintiff’s rights to proceed in the matter entitled “Katherine B. Untereiner v. Marie Delery,” No. 182,444 óf the docket of the Civil District Court for the parish of Orleans.

JANVIER, J., takes no part.


author: ' DUNBAR, Judge ad hoc.

text:
    No. 13,692
    Orleans
    SARPY v. MESMAN
    (July 1, 1931. Opinion and Decree.)
    (July 20, 1931. Rehearing Refused.)
    Normann, McMahon & Breckwoldt, of New Orleans, attorneys for plaintiff, appellee.
    Spearing, McConnell & McClendon, of New Orleans, attorneys for defendant, appellant. • • .
   ' DUNBAR, Judge ad hoc.

This is a suit for damages brought by the plaintiff for the use and benefit of his minor son. Judgment was rendered in favor of the plaintiff in .the lower court, and the defendant appealed.

Plaintiff alleges that on May 30, 1930, at about 4:45 p. m., his minor son, Jules Sarpy, Jr., aged 8 years, was riding on a wagon driven by one Sam Small on Marais street, going north towards the downtown or north lane of Canal street; that the said wagon had entered and pre-empted the intersection of the downtown side of Canal street when defendant’s automobile, traveling on the north lane of Canal street towards the lake, collided with the wagon, and as a result plaintiff’s son was thrown to the ground and sustained the injuries complained of.

The contention of the defendant is that the driver of the wagon was negligent in failing to come to a full stop before leaving the neutral ground and attempting to make the crossing in violation of the city ordinance, which failure to stop seems to be admitted, and furthermore that the driver of the wagon lifted the reins for .the purpose of striking the horse to increase the speed of the wagon across the intersection, and that this gesture of raising the reins to strike the horse indicated to defendant that the wagon was about to be stopped and that defendant would have the right of way at the intersection, and the defendant proceeded towards the intersection under this assumption, and, when the wagon did not stop, as defendant had expected, it was then too late for defendant to avoid the accident.

Plaintiff’s reply to defendant’s contention in this connection is that defendant in his testimony admits that he had seen the wagon on which plaintiff’s son was riding approach when defendant was a block away; that it further appears that defendant was eighty feet from the intersection at the time he saw the driver of the wagon lift the reins, which gesture defendant alleges he interpreted as an indication that the wagon was being stopped; that the physical evidence indicates that the wagon had pre-empted the intersection before it was struck by defendant; that, if defendant had been watching the wagon continuously, as he testified he did, he would have discovered at approximately eighty feet from the intersection that the lifting of the reins followed immediately by a striking of the horse with the reins for the purpose of speeding up the crossing of the wagon at the intersection was not a stop signal; and that, if defendant had been driving at a reasonable rate of speed, with complete control of his car, he was in a better position to avoid the accident than the driver of the animal-drawn vehicle which had already pre-empted the intersection.

The trial judge, who heard and saw the witnesses, adopted plaintiff’s theory and interpretation of the testimony, and evidently based his judgment in favor of plaintiff on the ground that defendant had the “last clear chance” of avoiding the accident. Laughlin v. Sullivan, 14 La. App. 491, 131 So. 687.

We have carefully exaniined .thé evidencé in this case, which is conflicting, and, although there is considerable testimony in support of defendant’s theory of the case in the record, we do not feel, under the circumstances, that we are justified in declaring that the judgment of the lower court is erroneous.

Counsel for defendant also contended that the testimony shows that plaintiff’s son was driving the wagon at the time of the accident and .that he was contributorily negligent, and is therefore precluded from recovery. The evidence is also conflicting on this point. The trial judge found that Sam Small was the driver of the wagon, and that plaintiff’s son, the injured boy, was his guest. After reading the conflicting testimony in relation to this phase of the case, we do not find a sufficient reason to disturb the finding of the trial judge.

Plaintiff’s son, who was 8 years of age, suffered contusions and a laceration of the left hand, which was cleaned, iodized, sutured, and dressed at the Charity Hospital, which left a sear on his finger. The boy was given serum and visited the hospital for a term of one week after the accident. The lower court allowed the plaintiff $150 as damages, which amount, under the circumstances, appears to be reasonable.

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

WESTEREIELD, Judge, and MORENO, Judge ad hoc, participating.


author: MORENO, J. a,d hoc.

text:
    No. 13,698
    Orleans
    MELDE TILE ROOFING CO. v. PARQUET
    (July 1, 1931. Opinion and Decree.)
    W. J. and H. W. Waguespack, of New Orleans, attorneys for plaintiff, appellant.
    W. P. Marcus, of New Orleans, attorney for defendant, appellee.
   MORENO, J. a,d hoc.

This is a suit for $233 for damages alleged to arise out of a breach of contract between the Melde Tile Roofing Company, Inc., and Mrs. Corella Laura Parquet. The plaintiff alleges that on February 4, 1927, defendant entered into a contract whereby plaintiff was to furnish for $498 a red cement tile roof for the construction of a house for defendant at 2634 Louisiana avenue. It alleges that defendant breached the contract, and it claims as damages the profit of $233 which it would have made.

Defendant admits the confection of the contract, but alleges that plaintiff agreed to its cancellation. There was a judgment in favor of the defendant in the lower court, and from this judgment plaintiff appeals.

The principles of law applicable to a decision of the case are simple and there remains only the question of the fact of cancelation. The defendant once having admitted the existence of the obligation, the burden of proving its discharge rested upon her. We believe that the evidence amply sustains its discharge by the agreement of the parties for a release^ of, their reciprocal obligations.

The evidence shows that the defendant employed a man named Joseph to construct for her a house on two vacant lots of ground. Joseph brought Mr. Melde, the president of the plaintiff corporation, to the home of the defendant, and she entered into the contract which is the basis of the suit. Thereafter, she was told by the homestead association which was to finance the construction of the house that the extent of its loan would be less if a cement tile roof were put upon the house than if it had a slate roof. Joseph, the contractor, told this to Mr. Melde, who, according to the testimony of Joseph, agreed to the cancelation of the contract, and said that if Joseph thereafter could secure for him another contract for the roofing of some building, he would appreciate his doing so.

Joseph said that he told Mr. Melde that Mrs. Parquet would probably build another house and that he would try to get the contract for him.

Mr. Melde, however, says that he did not agree to an unqualified cancelation of the contract, but agreed to “switch the roofs from there to the other job which would be in about three or four months.” There is nothing in the record to show that. Mrs. Parquet had any present intention of building any more houses, nor is there anything in the record to show that the roof for which she had contracted could be used on any house which she might build thereafter. No definite time was set for the furnishing of the roof for any house .other than that for which it was originally intended, and the whole matter was so thoroughly indefinite that there is left the firm coñviction that the plaintiff agreed to cancel the contract in the hope that thereafter he might secure additional business from Joseph or from Mrs. Parquet.

The contract was made on February 4, 1927, and suit was not filed until July 11, 1930. It seems somewhat unreasonable to believe that if the plaintiff thought that he had 'a cause of action that he would have waited three and a half years before filing his suit. The delay in filing the suit is doubtless an evidence of his consciousness that be had no cause of' action.

The judge of the . lower court, who saw and heard the witnesses, reached the same conclusion, and we are convinced that the decision of the lower court is correct ancf should be affirmed.

WESTERFIELD, Judge, and DUNBAR, JR., Judge ad hoc, participating.


author: MORENO, J. ad hoc.

text:
    No. 13,843
    Orleans
    ROSSI v. CUST
    (July 1, 1931. Opinion and Decree.)
    George Piazza, of New Orleans, attorney for plaintiff, appellee.

      Walter B. Hamlin, of New Orleans, attorney for defendant, appellant.
   MORENO, J. ad hoc.

This case involves largely the question of the identity of an offending automobile. The plaintiff alleges that the automobile which caused injury to his minor child - was operated by the defendant, while the defendant places his sole reliance upon án alibi. We are convinced that it was the automobile of the defendant which caused the collision which resulted in injury to the minor son of the plaintiff.

Dr. Paul A. Rossi, as tutor of his minor child, Robert P. Rossi, sued Robert M. Oust in the Civil District Court for $2,500 for injuries tq the child, and for the expenses connected with the accident, which had been paid by the plaintiff. There was a judgment in favor of the plaintiff individually in the sum of $75 for medical expenses, and in his favor as tutor of his minor son in the sum of $300, and the defendant has appealed from this judgment.

The undisputed facts of the record show that in> the early evening of Sunday, May 4, 1930, Dr. Rossi and his family were returning on the Chef' Menteur highway from the Gulf coast and that his automobile was being driven by Mrs. Rossi in a lane of traffic on the right side of the road. When the automobile of the plaintiff was about one mile on the city side of the Pontchartrain bridge, aij^ old-fashioned green Lincoln coupe, sitting high in the air, and carrying two spare tires, proceeding in the direction of the city, left the city-bound lane of traffic and darted in between it and the traffic going from the city towards the Pontchartrain bridge. This car was traveling at a high rate of speed and, as it approached a Chevrolet automobile going in the opposite direction, driven by a negro named Henry Owens, the latter saw the Lincoln coupe when a short distance away and pulled as far to his right side of the road as it was possible.

However, the distance between the two lanes of traffic was not sufficient to permit the Lincoln coupe to pass in safety and it struck the Chevrolet automobile and threw it across the roadway. Mrs. Rossi, coming along at a mpderate rate of speed, was suddenly confronted with the situation of a car being thrown across her pathway and turned as far to the right side of the road as possible and jammed on her brakes. There was a slight impact between the overturned Chevrolet car and the Rossi ear, and, either that or the suddenness with which the brakes were put on caused the Rossi child, aged 5, to be thrown forward against «the bar that is attached to the front seat for the purpose of holding coats and other things of that kind.

There can be no question of the fact that this accident was due solely to the negligence of the driver of the Lincoln coupe and there remains only the question as to whether the defendant was that driver. He says that his car was not in the accident, but the direct testimony of witnesses whose credibility remains unimpeached, ánd many collateral circum*stances, convince us that the offending car was driven by the defendant at the time of the accident.

Owens and James Wiggins and Ferdinand Dominick, who were passengers in 'the Chevrolet, all testify that the car which caused the accident was an old-fashioned green Lincoln coupe carrying two spare tires and that after the collision this car went down the road for some distance and thereafter returned and - its driver inquired whether anyone had been hurt in the accident, and then drove out towards the Pontchartrain bridge. They all testify positively that the car which the defendant admits to have been driving on the day of the accident was the one which caused the accident.

Dr. Rossi and Mrs. Rossi testify substantially alike regarding the accident. Dr. Rossi says that he saw the car which caused the accident, and that, after the accident, he kept it in view and it continued down the road for some distance and then returned. He leaves no doubt as to the import of his testimony, which is clearly to the effect that the green coupe which caused the collision and the Oust car are one and the same. He says that a day or two after the accident, he saw this car in the repair shop and positively identified it as the Lincoln coupe which had struck the Chevrolet. While the testimpny of Mrs. Rossi is not as full as that of Dr. Rossi on this point, yet it leaves no doubt regarding her identification of the defendant’s car as the one which caused the accident.

Mr. William R. Lee, the manager of the Drive Yourself, Inc., which was the owner of the Chevrolet car driven by Owens, says that after the accident he made an investigation to ascertain the ownership of the Lincoln coupe. He had been given the license number of the car and found that it had been issued to the owner of a Diana car. This car had been traded to the Lefebvre Motor 'Company and upon taking the matter up with its officials, he ascertained that the license plates had been used on a Lincoln coupe. He was told that this car was in a repair shop, as its left rear fender had been damaged on the day of the accident, while the car was standing in front of the home of a friend of the defendant. The coupe which had caused the accident was also struck on the rear left fender. The paint on this car was the same paint as was found on the fender of the Chevrolet which had resulted from the scraping of the two cars. The mechanic who made the repairs to the Chevrolet car testified that its fenders had scraped with a green car so that there is no doubt as to the color of the car which caused the accident.

Three days after the accident three of the colored passengers in the Chevrolet car went to the repair shop and unhesitatingly ¡picked out the coupe of the defendant as the one which had overturned the car in which they were riding.

There can be no question that, upon the testimony of the witnesses for the plaintiff, the identity of the car which caused the accident has been fully established. There remains simply the question of whether the defendant has produced evidence that would destroy the preponderance of evidence in plaintiff’s favor. We are of the opinion that he has failed to do so. The testimony which the defendant has produced is weak and inconclusive and leaves the court unconvinced of the seriousness of the defense.

Defendant says that on the day of the accident he went to the home of a friend, at 635 Toulouse street, and parked his automobile in front of the house. Some time around 1:30 o’clock p. m., he heard a crash and, leaving the apartment to investigate, he found that his car had been run into by another ear which was proceeding up Toulouse street against traffic and turned into Royal street. After examining the damage to his left rear fender, he returned to the aipartment and remained there until 3:30 or 4 o’clock p. m. He then made up his mind to go riding for pleasure and also for the purpose of finding the automobile which struck his car. He did not have the license number of that car and had caught merely a fleeting glimpse of it, and was not able to describe it more accurately than that it was an old Cadillac open car. He is unable to describe the course that he took, except that he did go to the City Park and West End, and then drove out-the Chef Menteur road until he came to the accident. He says that he stopped long enough- to find out if anyone was hurt and continued on to the Pontchartrain bridge and then returned.

Upon his return he went tq the apartment of his friends and remained there for some time, and when he left, he decided to go to the Third Precinct police station to see if the car which had damaged his car had been picked up. He made no report to the police of the damage to his car and gave the police no ■ description of the car which he said had struck his car. The fact that he waited for a number of hours before going to the police station to report the accident to his car, particularly in view of the fact that he seeks to make it appear that the driver of that car was drunk, and in view of the fact that the police station was but a short distance away, inclines the court strongly to the opinion that his purpose in going to the police station later at night was not to report the damage to his car, but was to ascertain whether or not complaint had been made against him for the accident which had occurred to the Rossi child.

His friend also testified substantially along the lines of the testimony of the defendant, but says that when they left to go riding, it 'was purely for pleasure, as no one had the number of the car which had run into defendant’s car and that, therefore, it would have been foolish to attempt to locate the car while driving aimlessly about the city. This witness is also unable to detail the movements between the time they left the apartment and the time of the accident to the Rossi car. He says that Mr. Oust, left the apartment after the return from the scene of the accident at about 11:30 p. m.„ but did not say anything about going to the police station to report the damage which had been done to the Oust car while standing in front of his home.

The wife of this witness, who was also in the car and knew as much about the matter as the defendant and her husbanu, was not called as a witness. It seems rather strange that in a matter involving the identity of the Oust car as a participant in the accident, this lady should not have been called as a witness if she could have corroborated the testimony of Mr. Oust and her husband. No explanation , is made of the failure to call her. as a witness and there is nothing in the record to show that she was not available, and, therefore, there naturally arises the presumption that if she had been called, her testimony would have contradicted rather than supported the testimony of the two witnesses for the defendant. However, the presumption arising from her- failure to testify is not necessary to support the conclusion that the cause of the accident was the negligent driving of the defendant. That conclusion is amply supported by the, other testimony in the record.

After an examination of the record, we are of the opinion that the trial judge, who saw the child who had been injured and who apparently went into the question of his injuries with considerable care, was correct in awarding $300 for his injuries, and that the other amount claimed by the plaintiff for expenses has been amply proven.

The judgment of the lower court is, therefore, affirmed.

WESTERFIELD, Judge, ana DUNBAR, JR., Judge ad hoc, participating.