author: ODOM, J.

text:
    No. 2547
    Second Circuit
    MARTIN v. WYATT LUMBER COMPANY
    (April 10, 1926, Opinion and Decree)
    (May 7, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160. (a), 160 (d).
    Although the Workmen’s Compensation Act No. 20 of 1914 does not specifically require that an injured employee shall submit to medical or surgical treatment, nevertheless the injured person must do what he can within' reason to minimize the damage.
    2. Louisiana Digest — Master and Servant Par. 160 (a).
    All operations for hernia are serious to some extent and accompanied with suffering, risk or danger and, therefore, the court in interpreting the Workmen’s Compensation Act No. 20 of 1914 will not deem.it unreasonable •for an. injured employee to refuse to accept treatment involving an operation for hernia.
    3. Louisiana Digest — Master and Servant —Par. 158, 160 (a).
    The Workmen’s Compensation Act No. 20 of 1914 provides that the employee who is disabled by an injury arising out of and in the course of his employment is entitled to compensation, and this is true, although the injured employee refuses to submit to an operation for hernia.
    4. Lousiana Digest — Master and Servant Par. 160 (I).
    Where the injured employee is forty years old and strong, and has a medium-size hernia which has not progressed very far, the court, in order to determine the compensation to be granted, will remand the case for further evidence as to what the injured employee is able to earn with the use of a truss.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine. Hop. Hal A. Burgess, Judge.
    Action by Louis J. Martin against Wyatt Lumber Company for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and case .remanded to the District Court for further testimony as to what plaintiff is now able to earn.
    P. M. Wood, of Leesville, attorney for plaintiff, appellee.
    Ponder & Ponder, of Many, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff was employed by defendant as a common laborer to do work at its sawmill at a daily wage of $2.25.

On August 5,’ 1925, while at work, in the course of his employment, he received an injury which produced an inguinal hernia.

Alleging total permanent disability to do any work of a reasonable character, he asked for compensation at 65 per cent of his wages for 400 weeks.

Defendant set up, in answer, two defenses:

1. That plaintiff refused to submit to a surgical operation tendered him, at its own expense, which, it is' alleged, would cure him; and,

2. That plaintiff is not totally disabled.

The District Judge rendered judgment in plaintiff’s favor of the amount sued for and defendant has appealed.

OPINION.

Considering these defenses in the- order set out above, we must determine first whether plaintiff must forego compensation in view of his refusal to submit to a surgical operation for. inguinal hernia.

Plaintiff is a colored man, forty years old, so far as the record discloses, is strong and in good health.

Soon after he received the injury, which resulted in a medium-size inguinal hernia on the right side, he was taken by Doctor Johnson, the defendant’s physician, who at once carried him to the Fisher Sanitarium, where arrangements were made for an operation.

Owing to the crowded condition of the sanitarium at the time, it was understood that plaintiff should return two days later for the operation.

Whether plaintiff ever consented to the operation or not is not clear, but the record discloses that he did not return, and finally concluded that he would not return and accept the proposed .operation.

The pleadings and evidence make it clear that the defendant has offered plaintiff no treatment except a surgical operation.

Plaintiff had no physician to advise him, and it does not appear that he was consulted as to what treatment should be administered; but .he was carried to the sanitarium, arrangements made for an operation, and he was so informed.

Counsel for plaintiff, in oral argument and in brief, directs our attention to paragraph 1 of Section 1 of Act No. 20 of 1914, which provides that the provisions of the Act:

“* * * {01- such employee and employer the payment of compensation, according to and under the terms, conditions and provisions hereinafter set out in this Act, shall be exclusive, compulsory and obligatory; * *

And to Section 36 of the Act, which provides:

“That no contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Act, except as herein provided.”

With these provisions of the statute in view, counsel for plaintiff asks the court to hold that an injured. employee is entitled to compensation during disability, even though it be certain that a surgical operation tendered him at the employer’s expense would relieve his disability, however simple, and unaccompanied by pain, risk or danger to health or life such an operation might be.

In other words, that under no conditions or circumstances has an employer the right to ask that an injured employee submit to an operation at the employer’s expense or else forego compensation.

To so hold would be equivalent to saying that an injured employee has the right to willfully, arbitrarily and without reason or excuse, prolong his disability, destroy his usefulness to the state and society, deprive his dependents of support and make himself a charge upon the community.

Such conduct on the part of an injured employee would be in violation of every consideration of duty and good citizenship.

To hold that an employee has the right to destroy his own usefulness by willful neglect or refusal to accept simple and harmless treatment, as a means for recovery, tendered him at the expense of his employer, in order to obtain compensation, would be violative of the dictates of reason, common sense and good conscience, and would set the stamp of approval upon the conduct of the malingerer.

■ It is true that our workmen’s compensation statute does not specifically require that an injured employee shall submit to medical or- surgical treatment; nevertheless it is well settled that an injured person must do. what he can, within reason and safety, to minimize the damage. It •has been so. held in personal injury cases by all the courts, including the United States Supreme Court.

See Donovan, et al., vs. N. O. Ry. & L. Co., 132 La. 239, 61 South. 216, and authorities there cited.

The same rule applies in cases arising under the workmen’s compensation statutes.

In the case of Charles Lesh vs. Illinois Steel Co. (Wisc.), 157 N. W. 539, (L. R. A. 1916E), the court held as follows, quoting from the syllabus.

“Continuing disability of a workman injured* in the course of his employment due to his refusal to submit himself to safe and simple medical treatment is not proximately caused by the accident so as to bring himself within the operation of the workmen’s compensation act providing compensation where the injury is proximately caused by the accident.”

In the case of Bronson vs. Harris Ice Cream Co., 150 La. 455, 90 South. 759, the court said:

“At the same time we must recognize that such a thing might be as an injury curable by an operation so simple and unattended by risk that plainly the real cause of the disability would be not so much the injury as the not making use of the easy remedy at hand.”

Many cases to the same effect from other jurisdictions might be cited.

But the question, as' to whether an employee • should submit to an operation tendered at the employer’s expense, depends upon the nature and kind of operation tendered.

In a case note found in 6 A. L. R. 1260 we find the general rule stated as follows:

“It is a settled rule that an injured workman will be denied compensation for incapacity which may be removed or modified by an operation of a simple character not involving serious suffering or danger.”

In support of this rule there are cited cases from Illinois, Indiana, Michigan, England and Scotland.

All the cases hinge, however, upon the question whether the operation is serious and accompanied with suffering, risk or danger, or whether it is .simple and unaccompanied with risk.

In Donnelly vs. Baird & Co., 1 Brit. Workmen’s Compensation cases (Scotland) 95, Lord McLaren said:

“In view of the great diversity of cases raising this question, I can see no general principle except this: That if the operation is not attended with danger to life or health or extraordinary suffering, and if according to the best medical and surgical' opinion the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit to the operation or release his employer from the obligation of maintaining him.”
“The rule, however, is different when the proposed operation is a serious one, and refusal to submit to such an operation will not defeat compensation.”

And in another English case it was held that compensation was not barred because of the- refusal of the workman to undergo an operation, although prohahly successful, “which would be attended with a certain amount of risk”.

In the case of Gilbert vs. Fairweather, 1 B. W. C. C. (England) 349, the court refused' to vary an award to terminate the compensation of a workman because he refused to submit to an operation which was trivial in character and practically certain to prove successful, and held that a reasonable man should submit to the operation, but the matter was one for the Court of Appeals to pass upon, but said:

In a leading case by the New Jersey court, McNally vs. Hudson M. R. Co., 87 N. J. L. (95 Atl. 122), in speaking of the duty of an employee to submit to an operation, the court said:

“Although the peril of life seems to be very slight, forty-eight chances in twenty-three thousand, nevertheless the idea is appalling to one’s conscience that a human being should be compelled to take risk of death, however slight that may be, in order that the pecuniary obligation created by law in his favor against his employer may be minimized.”

Such, in fact, is the holding in Bronson vs. Harris Ice Cream Co., supra, and in the case of Reeves vs. Dietz, 1 La. App. 501.

Therefore, the only question for us to determine is whether an operation for hernia is one simple and unattended by risk or danger to life.

In the case at bar, there ware four physicians called as witnesses by defendant and none called by plaintiff. The substance of the testimony of these physicians is that an operation for hernia- is simple and unaccompanied by risk.

Some portions of their testimony would indicate that they recognize the fact that there is at least some danger connected therewith.

Doctor Johnson, after saying that plaintiff could be cured by a simple operation, was asked, on cross-examination, if the medical authorities did not hold that not all operations of the kind were successful, and he replied:

“Might be one occasionally.”

and was asked if plaintiff’s case might not be one of the unsuccessful ones, and he said:

“Something else might cause his death.”

And that the operation would not • likely do so.

Doctor Lester, the coroner, said there was scarcely any danger from the operation.

Doctor Younger stated that the operation is not attended with risk, but, on cross-examination, he was asked:

“Is it not just a simple operation?”

And he said:

“It isn’t difficult, no, sir.”

Whether he meant that the operation is not accompanied with risk, is not clear from that answer. It seems to us rather evasive of the point. An operation may not be difficult for a surgeon to perform but yet be fraught with serious consequences from the standpoint of the patient.

But even though the four physicians who testified in this case were of the opinion that such an operation is not serious, their testimony does not foreclose the point; for out of the four, only one, Doctor Younger, is a surgeon. Not one of the others had ever performed an operation for hernia, and, so far as we know, had never witnessed one, such practice is out of their line, and we cannot rely upon their opinion, which they confess they know nothing.

Doctor * Younger testified that he is a surgeon by profession, although if he ever performed an operation for hernia or if he ever saw one performed he did not say so. So far as the court is informed, he has had neither experience nor observation in this particular line of surgery. Therefore we cannot be guided in our opinion on the point solely by the testimony in this case.

We are inclined to believe that these physicians were rather slack in their statements as to the seriousness of this kind of an operation, if, indeed, it may be said they knew anything about it. We cannot dismiss from all consideration the common experience and observation of mankind. It is a fact known to all that men do sometimes die from the effects of an operation for hernia.

In an exhaustive note found in 20 A. L. R., beginning on page 48, under the general heading of “Necessity and sufficiency of evidence that disease contracted by applicant for workmen’s compensation is attributable to the employment”, and the subheading “Hernia, the annotator reviews thirty one cases relating to hernia. A reading of his note in those cases will disclose that it is mentioned incidentlly in seven of the thirty-one cases there were operations, and in five of those cases the patient died. In some of the cases the patient had strangulation and in one or two it is mentoned that the patient died from post-operative shock. It may be that all of the cases referred to were aggravated, but the fact remains that the operation was for hernia and that the patient died.

Furthermore we cannot close our minds to what we know to be the opinion and experience of eminent surgeons of great learning and years of actual practice along this line.

Cases involving the nature of this operation and its effect have been before us more than once.

In the case of Robert S. Bossier vs. Louisiana Oil & Refining Corporation, 3 La. App. 205, the plaintiff was suffering from hernia which he had received in the course of his employment.

In that case, as in this, defendant tendered an operation which was refused, and the point was made and strenuously stressed that an operation for hernia is not dangerous. There were four eminent physicians called as witnesses and testified on that point. One of the four said the chances for recovery were fair but not absolute; that there are fatalities attending such operations; another said the conservative treatment for hernia is a truss and the radical treatment an operation, and said, further, that the operation is comparatively safe; that it is as safe as most abdominal operations, and that in some cases the patient loses his sexual powers; another said his observation was that ninety-six or ninety-seven per cent were cured, but that complications some times arose with serious results; and another said that such operations required greater skill than an operation for appendicitis and that some operations for hernia prove fatal.

We have had other cases before us involving the same question in which other physicians and' surgeons have testified, but in no one of them has any physician or surgeon testified that such an operation is unaccompanied with risk or danger to life.

It is a fact known to all that hundreds of men of intelligence and with means to procure the services of the greatest surgeons of the land, go through life wearing trusses for hernia rather than submit to an operation, notwithstanding the fact that a truss is a source of discomfort in many cases and always inconvenient and more or less cumbersome. The average man dreads any kind of an abdominal operation. Instinctively he feels that when he submits to such an operation he takes a chance of losing his life, and from observation he knows that is true.. For that reason men of intelligence endure afflictions through life rather than take a radical treatment which in all probability would relieve the disability but at the same time might end fatally. It may be said, we think, that the more informed people are as to the results of such operations the less they dread them, but the fact remains that the best informed do dread them. That being true, what may be expected of the average- wage-earner who is not informed? He shrinks instinctively from what are recognized to ’ be major or serious operations, and the advice of all the experts cannot remove from his mind the fear and dread of such radical treatment.

His feeling in the matter must be respected. The compensation act provides that the employee who is disabled by an injury arising out of and in the course of his employment is entitled to compensation. He is entitled to compensation as a matter of law and therefore of right. To withhold compensation because of his refusal to submit to such an operation, would be a denial of his rights under the law; for it is unquestionably true that many employees would rather forego compensation than take the chance.

As we have already said, an employee has no right to prolong his disability by unreasonably refusing to accept treatment by a simple, harmless operation when such operation would, in all probability, relieve his disability; but we do not think it unreasonable for an employee to refuse to accept treatment involving an operation for hernia.

This question of whether an injured employee must submit to an operation for hernia or else foregoing compensation, is constantly agitating the bar and is fruitful of much controversy and litigation. We have considered the question thoroughly, and our final conclusion is, that we will not order an employee to undergo an operation for hernia or else lose his right to claim compensation.

In so holding, we have considered first above all the seriousness of any abdominal operation and the instinctive dread that the average individual has for the knife. Surgeons, as a rule, advise such operations as • considering them not extremely dangerous, but if they are pressed for an opinion- they always say that disastrous results may follow either as a - result- of complications or shock or as the result of the administration of an anaesthetic. Complications may arise in any kind of an operation, it is true; infection or blood poison may result from the removal of a finger or a toe, and so an operation on the hand or foot ,may result . in serious consequences; but the difference between an operation on a member of the body and an abdominal operation is: if infection result from an operation on a member of the body, the condition is easily treated and controlled and, as a last resort, the whole member of the body might be removed in order to save the life, whereas if such condition result from an operation on the 'abdomen, it is usually fatal. Hence the dread and fear of abdominal operations.

Another consideration is, that there is another well recognized and very common treatment for hernia, and that is the truss. The truss is the conservative treatment; the operation the radical treatment.

According to the testimony in this case, the use of a truss frequently restores a man to usefulness again. If an employee can be restored to usefulness by the use of a truss, why call upon him to submit to so radical a treatment as an operation?

In this case it was not suggested to plaintiff that he try a truss! All the physicians say he can continue to work even in his present condition. If defendant desires to treat him, why not first provide him with a truss and watch the results? Under the law, where continued disability may be removed by either one of two treatments, the one conservative - and perfectly harmless and the other. radical and attended with risk, the employer has no right to arbitrarily say to the employee that he must accept the radical treatment or else forego compensation.

The court below correctly held, we think, that plaintiff was not unreasonable in refusing the operation.

However, on the other branch of the case, that is, as to his total disability to do work of a reasonable character, we think the court erred, for' the testimony does not warrant that holding.

Plaintiff says he can do no work. We cannot accept his uncorroborated statement to that effect, for the testimony shows and experience teaches that men afflicted as plaintiff is can do some work, especially with the use of a truss.

There are cases where courts are warranted in accepting the statement of an employee that he is unable to work, but in such cases the testimony must be corroborated by the circumstances and the nature of the affliction.

Plaintiff has a medium size hernia, which has not progressed very far. He is forty years old and strong; and all the testimony shows that other men similarly afflicted can do some work. O-ne man testified that he had a hernia and had been afflicted for quite a long time, and that he had worked every day; but he did not say what kind of work he did. Unquestionably the plaintiff can do some work, but we cannot tell what he is now able to earn. The case will therefore have to be remanded for further testimony and the question of his present earning capacity.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from allowing plaintiff compensation as for total permanent disability be reversed and set aside, and it is further ordered that the case be remanded to the district court for further testimony -as to what plaintiff is now able to earn; costs of the appeal to be borne by appellee; all other costs to await the final result.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2569
    Second Circuit
    ARENDER v. DREW BROTHERS
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

      1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial judge on matters of fact where clearly correct are affirmed.
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of Madison, Hon. P. X. Ransdell, Judge.
    Action by L. P. and Ernest B. Arender against Drew Brothers. Two suits which are part of a concursus proceeding. Judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    John B. Stone, of Tallulah, attorney for plaintiff, appellant.
    Drew and’ Drew, of Minden, attorneys for defendants, appellees.
   REYNOLDS, J.

These two suits are part of a concursus proceeding provoked by Drew Brothers where in L. P. Arender, Ernest B. Arender, the Louisiana Highway Commission and others were brought into court by legal citation.

The questions in these cases is as the claim of L. P. Arender for a balance of $1837.08 for gravel hauled and damages of $1852.63, as to which latter claim a non-suit was asked by the claimant; and the claim of Ernest B. Arender is for $1638.00 for gravel hauled.

Both claims grow out of a contract between Drew Brothers and Louisiana Highway Commission for the construction of certain work on what is known as Project Number 117-D.

The district judge before whom the cases were tried, in a well considered written opinion said of the claims.

“The next claim is that of Ernest B. Arender for the sum of $1638.00. This account is interwoven or mixed up with that of Leonard P. Arender which comes next in complainant’s petition. These two men are father and son. There is a question as to whether or not they were partners in the work done by them for Drew Brothers. Drew Brothers insisting that they contracted with the Arenders as partners and looked upon them as such, and the Arenders strenuously denying any such relationship. If we adopt the position of Leonai-d P. Arender, that is, that Ernest B. Arender worked for him as a subcontractor, then we are confronted with what appears to me to be the true status of this case, and that is, that Leonard P. Arender was settled with in full for work done by him and his son on that road; or, if we adopt the contention of Drew Brothers, that the Arenders were partners, the same conclusion, in my opinion, must be reached; for the evidence of Mr. Hellback, the engineer in charge, through whom the settlements were made, is very positive, to ,the effect, that Arender, was settled with in full for all gravel placed on that road by him or his son. See evidence of C. T. Hellback, pages 34 and 37 of testimony. On account of relationship of father and son of the Arenders, it must be assumed that the son was cognizant of settlement made by the father. It is hard to conceive that any such discrepancy existed, or could exist, as claimed by the Arenders, between the figures of the engineer in charge, which were accepted by Drew Brothers, and on which settlement was made by the Louisiana Highway Commission with Drew Brothers, and by them with Arender, and the amounts now claimed to be due them, by the Arenders. The figures by which Drew Brothers settled with Arender were those used by the Highway Commission in settling with them. See testimony, Hell-back, page 66. The testimony of Hell-back, an uninterested party, is supported by Jim Barnett and R. C. Drew. Drew Brothers admit retaining out of earnings of Arender a holdback of $479.00, which amount should be paid. It will be noted that during the time the Arenders worked, it is contended that the son, E. B., was paid nothing on work claimed to have been done by him. L. P. Arender explained this testifying that his son could buy goods on credit ‘and not paying him would enable me to pay my day labor’; but he does not explain how the boy paid his day labor. The provisions of the statute as to notification of the Highway Commission and Drew Brothers in time provided by law of the existence of these claims seems not to have been complied with. When, as I think it is shown, that Arender was settled with in full, excepting holdback of $479.00. That the evidence rather tends to show that a partnership existed, or that others were led to believe that it existed, between the Arenders. That the relationship of father and son existed and that payments on work, the ways and means of conducting their business, etc., were known to each, and that the boy knew his father was being paid for the work, that they do not satisfactorily account for the boy’s receiving no payments during the several months he is alleged to have worked, and from the laws as to notice óf claim, etc., having been communicated as directed by the Highway Commission.
“I fell that the claim of E. B. Arender and L. P. Arender should be disallowed, excepting the amount of $490.00, the percentage held back by Drew Brothers.
“For the reasons assigned, it is ordered, adjudged and decreed that the claim of Ernest B. Arender for $1638.00 and that of L. P. Arender for $1852.00, be and the same are hereby disallowed. It is further ordered, adjudged and decreed that Leonard P. Arender do have and recover judgment of and against the said Drew Brothers in the sum of four hundred seventy-nine dollars with legal interest from judicial demand, and , costs, and that said amount be paid out of funds held by the Louisiana Highway Commission as balance due Drew Brothers.”

The question to be decided is one of fact. The district judge heard and saw the witnesses testify and after due consideration of all the evidence gave judgment as above shown.

We have carefully considered all of the evidence in the record as to both of the claims and are convinced therefrom that the findings of our learned brother of the district court are correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: CLAIBORNE, J.

text:
    No. 9249
    Orleans
    MANDER vs. KEONENBERGER
    (April 12, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Donations—Par. 61; Damages — Par. 3; Pleading — Par. 57, 62.
    A petition which alleges that a person desired to make a testament in favor of the plaintiff and was prevented therefrom by the artifices and false statements of the defendants discloses a cause of action in damages.
    Appeal from Civil District Court, Division “A”, Hon. Hugh C. Cage, Judge.
    Action by Edna Mander, wife of Seymour Kling against Marie M. Keonenberger, et al. There was judgment for defendant maintaining the exceptions of vagueness and no, cause of action filed by him and dismissing the suit. Plaintiff appealed.
    Judgment reversed and case remanded for trial according to law.
    Jos. H. Brewer, of New Orleans, attorney for plaintiff, appellant.
    F. J. Dreyfous and A. D. Danziger, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is an action in damages against the defendants on the allegations that, by fraudulent devices, they prevented one from making a testament in favor of the plaintiff.

The plaintiff alleged that on June 2, 1922, she was employed as a nurse to care for the laté Theresa Keonenberger Koch, who was then suffering from a virulent disease which rendered plaintiff’s duties dangerous and difficult; that when she was engaged it was agreed that she should remain until June 30, 1922; that on June 17, 1922, Mrs. Keonenberger Koch stated to plaintiff that if she would continue to nurse her after June 30th, that she would see that plaintiff would receive $1000; that on said June 17th, Mrs. Keonenberger Koch requested the defendants, her sisters, Marie and Katherine Keonenberger, to send for Felix J. Dreyfous, Notary, in order that she might make her testament, and that “she desired to leave to plaintiff $1000 as compensation for her services, care and kindness to her; that thereupon the said Katherine Keonenberger informed her said sister Theresa Keonenberger Koch, now deceased, that Felix J. Dreyfous, the Notary Public, was then out of the city, although in truth and in fact, the said Felix J. Dreyfous was then in the City of New Orleans, and that immediately thereafter the said Katherine E. Keonenberger went into another room, and, in the hearing of plaintiff, told Marie M. Keonenberger that Mrs. Theresa Keonenberger Koch wanted her, Katherine E. Keonenberger, to send for said Dreyfous to make a new will, and that thereupon Marie M. Keonenberger told her said sister, Katherine, to tell her sister, Mrs. Theresa Keonenberger Koch, that said Dreyfous was out of the city, and that ‘her will is made and it is all right’, and that Miss Katherine K. did so”.

“That by-the actions and conduct of the said Marie M. K., and the said ■ Katherine E. K.,-:who-acted- in concert, and in pursuance -of a-preconcerted and agreed plan to prevent the execution of said last will and testament by their sister, Mrs. Theresa K. Koph, now deceased, in order that they, the said Marie M. K. and Katherine E., K., might benefit thereby, and prevent said decedent from making the bequests aforesaid, and among others complying with the promise, made by decedent, Mrs. Theresa K. K. to your petitioner to make a will leaving petitioner the compensatory bequest of $1000 promised to petitioner as a reward for her kindness, consideration, and care exercised towards the said Mrs. Theresa K. K., as aforesaid, the said Marie M. K. and the said K. E. K., damaged your petitioner in the full sum of $1000 and are liable to petitioner in said sum of $1000 as damages by reason of their wrongful, illegal, and tortious act in preventing and conspiring to prevent the execution of the said last will and testament by the said Mrs. Theresa K. K., in conformity with her promises made to petitioner aforesaid.

That thereafter the said Marie M. K., and the said Katherine E. K., each stated to petitioner, on July 21, 1922, that she, plaintiff, need not worry as they would see that she received what the said Mrs. Theresa K. K. had promised to her; that said statement was made the day immediately following the burial of the said decedent, and that relying thereon, plaintiff was induced to take no action to enforce the recognition and payment of her said claim in the matter of the. succession of said decedent.”

Plaintiff -prayed for judgment for $1000.

The defendants filed an exception of “no cause of action” and of “vagueness”, without stating the reasons why the petition disclosed no cause of action or was vague. '.

The judgment “for the reasons orally, assigned” maintained the exceptions and dismissed plaintiff’s suit.. . .

We are compelled to differ from the learned judge of the District Court.

The defendants were the sisters and heirs of the deceased and, by preventing her from making a testament in favor of the plaintiff were to profit by the sum of the legacy, and the plaintiff was to be damaged by so much.

The rules as to fraud in contracts' are applicable to testaments 7 Aubry and Ran., p. 69 S. 3; 11 Laurent, S. 130; 16 Dalloz Rep. p. 116 S. 243. The maxim of the law is that no one.shall profit by his fraud; and Article 2315 of the Civil Code ordains that “every act of man that causes damage to another obliges by him by whose fault it happened to repair it”.

The amount of the damage is the loss plaintiff has sustained. There is not a single text of the law nor any decision that declares that allegations such as are contained in the petition in this case discloses no cause of action. The allegations of the petition must be taken as true for the purposes of a judgment herein. They are that the deceased, a helpless invalid, requested the defendants to send for Mr. Dreyfous, a notary, in order that she might make her will with a disposition in favor of the plaintiff, and' that these defendants told her that Mr. Dreyfous was out of the city when in truth he was within the city; and then told her other things narrated in thé petition which also were not true.

That hy reason of .these false assertions the deceased was dissuaded and- prevented from making her will is asserted and must he assumed to be true. It would be a reproach to justice, to say the least, and a premium on deceit, to permit the defendants to thus énrich thepiselves, as heir of their sister, by their perfidy and fraud, and to damage the plaintiff with impunity. Such is not the law.

In the case of Kelly vs. Kelly, 10 La. Ann. 622, the plaintiff sued the defendant in damages for having prevented “by threats and violence” her husband from making a will in her favor. The defendants filed a plea of no cause of action, which was maintained by the District Court. On appeal, the Supreme Court remanded the cause to be tried on the merits. The jury rendered a verdict in favor of the plaintiff. On appeal the Supreme Court said:

“Actions of this kind, were admissible under the rules of the Civil La-.v * * * the only remedy known to our jurisprudence in such cases is given to the injured party by an action soundinsv in damages.”
“We incline to the opinion that a sufficient ground of action has been alleged. A case in point has been reported by Ricard, in which the chapter of Vezelay was admitted to prove that Annede Siron, during her last illñess, had often declared to her servants that she desired to -make a will and give 3000 livres to the church of Vezelay; that she had one day demanded the attendance of the notary, but that her father had prevented it, forbidding the entrance of any notary in his house.”

The verdict of the jury was reversed for the reason that there was no evidence to show. that the execution of the will was prevented by the threats and violence charged.

Whether the charge was “threats and violence” or fraud, the law is the same, as fraud vitrates all acts.

But one thing certain is that the deceased was prevented from making a will by the fault of the defendants.

The French jurisprudence is in accordance with the Kelly case.

One page 123 S. 255 of 16 Dalloz Repertoire, which is to the Civil Law what Corpus Juris is to the Common Law, we read (translated):

“If the violence and fraud used to obtain a testament vitiates its disposition, the same means must give rise to an action, if they have been put in operation to prevent an individual from making a testament- The legatee who would pretend that he was to be benefited will be permitted to prove the intentions of the deceased, and to claim, not the execution of the projected dispositions, for a verbal testament is not susceptible to receiving executions, but damages which would vary according to the circumstances and to the nature of the proof.”

The author quotes the case of Formica vs. Buscaglione, decided in 1805.

The facts were as follows:

“On August 25, 1805, there died at Turin one Buscaglione leaving an only daughter married to Formica. He had made no testament, and nevertheless his widow claimed for herself and for her two daughters from a first marriage the liberalities which she pretended her husband had manifested the intention to make to them, and pretended that through fraud Formica and his wife had prevented him from making. The latter who had gathered in the succession, insisted that in the absence of a testamentary disposition which would have realized the liberalities which the deceased might have intended to make his -widow could claim nothing.”

Then follows the allegations that several days before his death her husband in presence of the defendant Fórmica and others had expressed his well defined intention to leave 1000 francs to his wife and 1500 francs to each of his daughters; that Formica and his wife had dissuaded Buscaglione from making the will by promising to faithfully carry out his wishes; that after the death of Buscaglione, Fórmica and his wife had told several persons that they were bound for the lagacies which he had manifested' the intention of making to the plaintiffs and that they would make delivery of them.

The judgment maintained the cause of action in an opinion too lengthy to reproduce in full. We shall quote only extracts: The Roman Code “demonstrates clearly enough that he who would either prevent any one from making a testament or compel him so to do could not escape the pursuit, in a civil action by him who, by reason of those manoeuvres, would have been injured. The case where the writer of the testament was not permitted to enter the room of the would-be testator, or where the witnesses were prevented from approaching, are only partial designations of the means which may be used to prevent the making of the testament; that, as a whole, it is not only a mode of physical coercion which is prescribed but also moral violence, all crafty devices, all malicious and deceiving artifice by which some one has been either induced to make a testament, or dissuaded, or prevented from making one; * * * its disposition (Civil Code) are based upon thé principle upon which rests the sanction of the Roman laws, namely, upon the liberty of testaments, and that no one should be permitted to take advantage of deceit and fraud; We'see besides solemnly consecrated in principle Articles 1382 and 1385 (La. Civil Code 2315-2318) that every act Whatever of man that causes damage to en-other obligates him by whose fault it happened to repair it.

It follows that the appellants have effectively, by a positive assurance given to Buscaglione to execute, as regards the plaintiff and her daughters his wishes verbally expressed, and on the pretext of the want of necessity of an act in form, they have dissuaded him from the idea of making a testament and to exercise by that means the liberalities which- she proposed; their actual refusal to execute their promises, would demonstrate that it is through deceit that they have prevented the deceased from making a testament, and consequently they would be bound in damages to the plaintiff; that it is in vain that the appellants believe that they can escape the payment of these damages, in relying on the absurdity that would follow the system of appellant to claim the payment of lagacies not consigned in one of those acts which the law recognizes as alone capable to transmit, by gratuitous title, the property of another; for it is sufficient to observe that it is not the legacy, as a legacy, that the plaintiff claims but the payment of an indemnity, and that because she alleges that the appellants have used deceiving means near her deceased husband, by which she was deprived of the legacies which he wanted to make to her and which he would have made had he been able to make his testament.

Indeed under the terms of the Article C. C. 1149, (C. C. 1934) damages are due, as much for the .loss sustained as for the profit of which one has been deprived.

Grenier on Testaments commenting on the above decision says on page 355:

“To resume, an abstraction made of all circumstances which may present shades from which might result differences of opinion, the decision of April 23, 1808, has laid down a principle that in order to justify a judgment assessing damages proportionate to the legacies which the testament from which the deceased was dissuaded, it is not necessary that the obstacle preventing the making of the testament should have been the result of physical violence or ill-treatment; that it would be sufficient that the deceased could not make his testament according to his wishes, by means of all moral violence, of all crafty devices, of all artifice malicious and deceiving. Hence, this principle appears to us incontestable, we shall always be moved by the wisdom of the motives which have dictated the decree, and of the healthy erudition which has been its foundation.”

To the same effect is Bedarride on “Deceit and Fraud”, S. 404, p. 457-408-409 and 411, which it would be too long to reproduce here.

“Preventing one from making a testament has always been considered as a fraud giving rise to an action in favor of the one who has suffered from it.” S. 404.
S. 407: “The only action accruing to the one who suffers from preventing the making of a testament is the one in damages against the author of the hindrance; this action is based on the general principle of Article 1382 of the Civil Code.”
S. 408, p. 465: “If the plaintiff alleged that the notary and the witnesses had been knowingly turned away or dissuaded, the facts would be pertinent and serious, for they would in fact constitute artifices, fraudulent manoeuvres, establishing fraud and! giving rise to the obligation of repairing the damage suffered.”
S. 409: “The extent of the damages due to the one who proves the hindrance to make the testament to his prejudice, is measured by the intentions expressed by the deceased.”
S. 417: “Hence he who by virtue of the suppression of the testament, has taken possession of the succession must be condemned to make restitution to the instituted heir who proves the suppression of the institution.”

It is not only the one who prevents the making of a will who is liable to the legatee but the notary who makes an invalid will by design or. ignorance.

A notary who executes a defective will is responsible to the legatees in damages; their measure is the amount of the lost legacy after the payment of debts. Weintz vs. Kramer, 44 La. Ann. 35, 10 South. 416; McConnell vs. Ory, 46 La. Ann. 465, 15 South. 424; 2 Fuzier-Herman, p. 678, No. 106 Dalloz Rep. Vo. Responsabilie No. 307.

Were it not so, the notary might collude with the heirs to defeat legacies intended by the testator.

40 Cyc. 1197: “Where a testator attempts to revoke his will, but is prevented by fraud or subterfuge there is no revocation. It has been said, however, that equity will interfere to prevent a party whose fraud has prevented revocation from taking advantage thereof.” 2 Domat, Liv. III, Tit. 1, Sec. 5, No. 26, p. 553.

It is- therefore ordered that the judgment herein be reversed and avoided, and it is now ordered that the exceptions filed to the petition herein be set aside and dismissed and that this case be remanded to be tried on the merits.

The costs of appeal to be paid by the defendant-appellee and the costs of the district court to await the final judgment in the case.

Judgment reversed and case remanded.


text:
    No. 2571
    Second Circuit
    BLANCHE v. DREW BROTHERS
    (May 7, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 521.
    Where in a concursus proceeding it is impossible for the court to determine what portion of the claim is owing to one of the plaintiffs, the suit will be dismissed as of non-suit.
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of Madison. Hon. F. X. Ransdell, Judge.
    Action by George S. Blanche against Drew Brothers.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Snyder & Sevier, of Tallulah, attorneys for plaintiff, appellee.
    Drew Brothers, of Minden, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a concursus proceeding provoked by Drew Brothers against George S. Blanche, the Louisiana Highway Commission and others, in which the latter were brought into court by legal citation.

The question to be decided is as to George S. Blanche’s claim for $120.30, balance claimed for gravel hauled, and $372.05 for cutting a right of way.

The claim grows out of the contract between Drew Brothers and the Louisiana Highway Commission for the construction of what is known as Project Number 117-B.

The district judge before whom the case was tried rendered a written opinion wherein he said:

“Blanche says he did so much work, amounting to what he claims to be due him. Complainants (Drew Brothers) in their evidence seem to be uncertain as to what was done. I therefore feel constrained to accept Blanche’s version as being correct. Act 224 of 1918 was passed for the benefit of all parties to public contracts, and that a proper adjustment of claims growing out of same might be reasonably effected. While Blanche may have failed to file statement of his account, as provided in the Act, I do not see that under the circumstances of this case that his claim can be defeated by reason of such neglectful act, for if I am correct in allowing it then Drew Brothers, so far as this court is concerned, owes it, and the money for its payment is in the hands of the Louisiana Highway Commission, which commission through their officers employed him to do part of the work. See testimony of George S. Blanche.”

George S. Blanche testified as to his claim for $372.05 as follows:

“Q. The clearing of this right-of-way, did you have a contract with Mr. Drew?
“A. Mr. d’Autremont had me to do some of the job, but the other was a piece they left out and Mr. d’Autremont had me to go cut it. There was a strip left between the first right-of-way and the railroad right-of-way, and they decided they wanted it cut out and they asked some of the people out there to cut it and they wanted 60 cents. Mr. d’Autremont came to me and asked me to go cut it, and told him I could not do it as half the strip was mud. He said go ahead and do the best I could and cut it as cheap as I could and they would see I did not lose anything. When I started I got on the bad end of it first, with mud over knee deep on the mules, and we had to put a snatch-block on and we got along awful slow. When we got two-thirds through the mud he said: ‘You are getting along too slow.’ And I showed him my expense account and he said, ‘that is costing too much and X think you had better quit as you have to move the gravel’. The gravel car was to be in the next day so I knocked off and went to work with the gravel.
“Q. This . statement shows just what you cleared?
“A. Yes, shows the number of feet.
“Q. Did you have any contract with Drew Brothers to do that clearing?
“A. For the first part, not the second.”

R. C. Drew testified:

“Q. You were to pay him $30.00 an acre for the entire strip?
“A. Yes, sir.
“Q. He said something about some work between the railroad and the original contract?
“A. Well, that’s a strip we are talking about. When this road was laid out, after we cut the original right-of-way there was a strip that ran from the corner of Joe’s bayou to about 45 feet at Cows bayou. The engineers agreed to pay us for 45 feet all the way.
“Q. Did he have a contract to clear that all the way through there?
“A. Yes, sir.”

From this evidence it is impossible for the court to determine what portion of Blanche's claim for $372.05 is owing by Drew Brothers, and it therefore follows that plaintiff’s claim as to this amount must be dismissed as of non-suit.

As to plaintiff’s claim for $120.36 for hauling gravel, it is fully established by the evidence and he is entitled to judgment for that amount.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and it is now ordered, adjudged and decreed that George S. Blanche do have and recover judgment against Drew Brothers for the sum of $126.36 with legal interest thereon from August 18, 1924, until paid, and costs; and that his claim against Drew Brothers for $372.65 be dismissed as of non-suit.

It is further ordered, adjudged and decreed that this judgment be paid out of the fund in the hands of the Louisiana Highway Commission to the credit of Project Number 117-B.

The costs of the lower court to be paid by Drew Brothers; the costs of the appeal to be paid by George S. Blanche.


author: BELL, J.

text:
    No. 10,351
    Orleans
    ROONEY v. CHECKER CAB COMPANY
    (February 1, 1926. Opinion and Decree.)
    (March 1, 1926. Rehearing Refused.)
    (May 4, 1926. Writ of Certiorari and Review Denied by the Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 483.
    An appellant who applies for and obtains an order allowing suspensive and devolutive appeals and completes the appeal b,y filing a bond for a suspensive appeal abandons his appeal if he does not file the transcript in the appellate court on or before the return day, and may not thereafter prosecute a second appeal granted by subsequent order.
    Appeal from Civil District Court, Parish of Orleans, No. 156,208, Division “B”. Hon. M. M. Boatner, Judge.
    Action by John F. Rooney against Checker Cab Company.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    B. W. Kernan and M. A. Woodruff, of New Orleans, attorneys for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   BELL, J.

Judgment was rendered against defendant on July 10, 1925; suspensive and devolutive appeals were granted on' motion filed July 20, 1925, and the appeal was completed on the same day by filing a bond in the sum of $1900.00, being an amount sufficient for suspensive appeal.

The appeal was returnable to this court on August 17, 1925, and on August 17, 1925, an order was obtained from this court, under Docket No. 10,226, extending the return day to October 15, 1925.

The transcript of appeal was not filed in the clerk’s office of this court on or before the extended return day, and on November 5, 1925, a certificate to that effect was presented to the District Court, and, on motion, an order of that court was entered recognizing appellee’s right to prosecute execution on the judgment appealed from.

Thereafter, on November’16, 1925, appellant obtained an order granting a devolutive appeal, returnable to this court on December 14, 1925.

On December 16, 1925, appellee filed motion in this court to dismiss the present appeal on the ground that appellant had abandoned the appeal taken, and could not thereafter prosecute another appeal.

Under the record facts above noted, there can be no doubt that the motion to dismiss the appeal should be maintained.

Article 594 of the Code of Practice provides :

“From the moment when the citation of appeal is served on the appellee, the appellant cannot withdraw his appeal; and whether the appellee obtain the rejection of the appeal by producing the record from the court below, or prosecute execution on the judgment appealed from, on the certificate of the clerk that the record has not been brought up by the appellant, the appeal shall be considered as abandoned, and the appellant shall not be afterwards allowed to renew it.”

Where a suspensive and devolutive appeal is completed by the filing of bond, failure to file the transcript in the appellate court on the return day is an abandonment of appeal and appellant may not thereafter prosecute a second appeal under another order of appeal subsequently granted. This rule of procedure is of long standing, and has been consistently observed in the following eases:

Mutual Loan & Building Assn. vs. First African Baptist Church, 49 La. Ann. 880, 21 South. 517.

Laussade vs. Maury, et al., 31 La. Ann. 858.

Sterling vs. Sterling, 35 La. Ann 840.

Hymel vs. I. C. Rd. Co, 116 La. 42, 40 South. 525.

Brooks vs. Smith, 120 La. 454, 45 South. 388.

Girod vs. Monroe Brick Co., 127 La. 328, 53 South. 582.

Cox, et al., vs. Hope Shingle & Lumber Co., 130 La. 231, 57 South. 899.

Edenborn vs. Kirkland, 136 La. 1020, 68 South. 111.

Tolchinsky vs. Succn. of Lirette, 148 La. 1072, 88 South. 458.

Opelousas Bk. vs. Fontenot, 1 La. App. 195.

The motion to dismiss the appeal herein taken under the Docket No. 10,351 of this court is maintained and the appeal is accordingly dismissed.


text:
    No. 9875
    Orleans
    BASS v. ILLINOIS CENTRAL RAILROAD COMPANY
    (January 18, 1926. Opinion and Decree.)
    (February 15, 1926. Rehearing Refused.)
    (March 30, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 630.
    Though a judgment be based on verdict of a jury, it will be reversed and set aside by the appellate court where the verdict is clearly against the preponderance of evidence.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 42, 43.
    Where a plaintiff, a passenger, seeking damages from a carrier for injuries sustained while attempting to leave a railway train which has stopped at an avenue crossing in city limits, charges several acts of omission on the part of the carrier as faults or negligence causing the accident, and where on trial it is established as a fact by plaintiff’s own testimony that only one of said acts could have caused the accident, and where the preponderance of evidence clearly establishes that the defendant was not negligent in the respect ultimately claimed, recovery will be denied.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court for the Parish of Orleans, Division “C”. Hon. Sam A. LeBlanc, Judge.

      Action by Carmen Bass against Illinois Central Railroad Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Jos. H. Brewer, of New Orleans, attorney for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   OPINION

BELL, J.

This is an action in damages for the sum of $10,250.00 for physical injuries alleged to have been sustaned by the plaintiff while attempting to descend from the platform of one of defendant's passenger coaches forming part of a train which had stopped just beyond the point where South Carrollton avenue intersects defendant’s tracks and near the corner of Colapissa street, in the city of New Orleans. The accident occurred about 10:15 P. M. on May 21, 1922. By a jury’s verdict (9 to 3), plaintiff was awarded judgment for $1900.00. Defendant has appealed.

Alleging the place and date of the accident, as above stated, and that the train had come to a full stop, plaintiff avers in her petition, as various causes for the accident, the following:

“That your petitioner proceeded to the platform of the coach of said tr'ain on which petitioner had made a trip from Hammond, Louisiana, for the purpose of alighting from said train, as aforesaid, and relying upon the fact that said employee of the defendant herein had called the 'said stop, signifying that passengers were permitted to alight at such place, and that as petitioner reached the steps of the platform of said coach, owing to the fact that it was quite dark, that no lantern or other light had been provided or was present, and’ the entire absence of the. stool, small bench or step usually provided for passengers to assist them in alighting, your petitioner sustained a severe fall, resulting in severe and painful injuries to your petitioner, as herein set forth.
“That said injuries to your petitioner were caused by the negligence of the employees, agents and servants of the said Illinois Central Railroad Company, acting within the scope and cares of their employment, as aforesaid, first, in calling said stop a,nd indicating that passengers were permitted to alight at the intersection of Carrollton avenue and the tracks of the Illinois Central Railroad without providing the proper facilities for permitting passengers to alight, and secondly, in failing to have an employee present at said platform steps for the purpose of assisting passengers to alight, or at least warn them of danger.”

Defendant avers- by denying the accident and, further answering, avers:

“That the train in question was properly manned, equipped and operated; that the place at which passengers alight at South Carrollton avenue was properly lighted with proper facilities for permitting passengers to alight, and that if paintiff was injured in alighting from said train, as alleged, which is denied, it was due entirely to her own fault and negligence and through no fault or negligence of defendant, its agents or employees.”

It is clear, from the averments of plaintiff’s petition that the only acts of negligence charged against defendant are faults constituting acts of omission respecting a carrier’s duty toward a passenger while the latter is in the act of alighting from its train. Assuming that the plaintiff was not herself in any manner careless or at fault while attempting to alight from the car, it appears from an analysis of her petition that the followng acts of omission are charged against defendant:

First. Not having stopped at a regular station, but at some unusual or makeshift stopping place.

Second. Having an improperly lighted station.

Third. No facilities for alighting from the train, such as a stepping stool.

Fourth. No employee to assist passengers in alighting or to warn them of danger.

Fifth. Darkness on the step- and on the platform of the car. Plaintiff’s own and positive testimony given on direct examination and reiterated on cross-examination entirely obviates the necessity of considering any of the above theories as to the cause of the accident, except the last theory, that is, insufficient light of the steps and of the platform of the car.

On direct examination:

“A. Well, I figured that as everybody else was getting off, and as I live so near to. Carrollton avenue, that I would get off there, too.
“Q. Then what did you do?
“A. It was so dark and nobody there to get you off; the only thing that I can remember was when I knocked my face and after that I was unconscious.
“Q. Where did’ you knock your face?
“A. I knocked my face as I fell, and after that I was unconscious.
“Q. From where did you. fall?
“A. Right'from-“the platform.-
“Q. The platform of- -what?
“A; Of the coach.”-•

On cross-examination:

“Q. You were asked this question: ‘Where did you knock your face?’ and your answer was : T knocked my face as I fell, and after that I was unconscious.’
“A. Positively, I do remember knocking my face and that was all; that was on the side of the ■ train, ■ I guess.
“Q. You were asked: ‘From where did you fall?’ and you answered: ‘Right from the platform.’
“A. From the platform was where I fell.
“Q. Y:ou are sure you fell from the platform?
“A. I am most sure; it must have been from the platform.
“Q. ‘It must have been from the platform’ — in other words, you were standing on the platform of the car and you fell down?
“A. I was coming down the step, and it was so dark I guess I went off.
“Q. Now, is it not a fact that you fell on your face?
“A. No, sir; I knocked my face as I was going down.
“Q. You hit your face before you hit the ground?
“A. Positively.
“Q. Did you hit your face on the side of the car?
“A. That was the only place I could hit it, because I remember hitting my face and I could feel myself going. .
“Q. You fell down and hit the side of your face as you were falling to the ground?
“A. Yes, sir.
“Q. And your fall started up on the platform of the car?
“A. Sure, because I remember knocking my face.”

The record shows that the train on which plaintiff was a passenger consistea of thirteen coaches; that she had been riding in the coach next to the last, and was one of many excursionists occupying the two rear coaches of the train which had come to a stop after clearing the city side of South Carrollton avenue. Attempting to alight from the front platform of the coach, that is, the end nearest the city, plaintiff is shown by the evidence to have been standing, while on the platform, a distance of about 78 feet from the sidewalk corner of South Carrollton avenue and Colapissa street. At this corner city lights were shown by the evidence to have been burning. There is conflicting testimony as to whether these lights sufficiently lighted the station platform or the car platform from the distance mentioned, or whether the light was obstructed by certain nearby buildings and lumber piles. These facts are immaterial, for two reasons: Plaintiff was not stepping upon or using the station platform when she fell, and, furthermore, there is abundance of evidence that the car platform was lighted at all times by the oil lamps of the car, all of which lamps were burning at the time of the accident and reflecting light on the platform through the open doorway of the car.

Julius Wendling, a witness for plaintiff, who had preceded him in attempting to leave the car. On direct examination he states there was no light on the platform, but when confronted, upon cross-examination with a written statement given by him six months prior' to the trial, he testified:

“Q. Now, your testimony grows substantial in what you just stated, except as to one or two breaks. Didn’t you state that at the time the train came to a stop you and Miss Tabry, who was your partner on the trip, went 'on the platform to get out?
“A. Yes, she was back of me.
“Q. And while there was no light on the ground, that there was some light on the train?
“A. In the train, yes, and a kind of reflection to the platform, but not much.
“Q. And that the light from the train threw down this light on the platform?
“A. Yes, sir.
“Q. And that you had sufficient light by which you could see to descend?
“A. I do not know about that, it was pretty dark then.
“Q. Didn’t you make that statement as follows:
“ ‘Q. But there was light enough, you could see?
“ ‘A. Yes, there was enough light, you could see, sure’?
“A. To the exit?
“Q. Yes?
“A. I know I said I could see the light from the train to the platform, but I could not see going out from the steps.
“Q. I don’t want to trip you or anything like that, Mr. Wendling, all I want is to get at the facts, and I know you are trying to state the facts as you remember them. What I am asking you now is, didn’t you make that statement to Mr. C-, who was the stenographer who took the statement in that case: ‘Yes, there was enough light, you could see, sure’.
“A. I did not specify ‘see where’, but I could see to the platform when I had gotten out, but going down the steps there was absolutely no light, it was absolutely dark.
‘.Q. But you did make that statement I just read you?
•“A. Yes, in regard to that platform.
“Q. ‘There was enough light, you could see, sure’?
“A. To see to what, to see to where?
“Q. See to get off the train?
“A. No, you could not see to get off; it was dark on the steps. There was only light on the platform.
“Q. Now do you deny making the statement that was taken diown in shorthand, that ‘there was enough light, you could see, sure’, to get off the train?
“A. That oiie súbject, yes; I said on the platform or I meant on the platform.
“Q. But you made that statement, didn’t you?
“A. I did if it’s written down, I did, yes, sir.”

Plaintiff herself testifies, while under cross-examination, that there was sufficient light while she was out on the platform for her to see the shadow of her young nephew who was being carried in the arms of a friend preceding ber.

Erickson, a conductor on the train, testifies on cross-examination as follows:

“Q. What kind of light did the coaches 1503 and 3726 have?
“A. Oil lamps.
“Q. Any lights on the platform?
“A. Yes, sir, they have them on the, platform.
“Q. What kind of lights?
“A. Lights at the door, there is an oil lamp.
“Q. Were any of these lamps lit that night?
“A. To my recollection, yes.
“Q. And some may not have been lit?
“A. They were all lit; I went back at Hammond and looked at them.
“Q. You don’t know whether any went out?
“A. They didn’t, because I worked the train at every station.”

Other evidence offered for defendant establishes the fact that the passengers (some 100 or more) had sufficient light to get off the train, and that all passengers, several of which were in plaintiff’s car, alighted safely. The train being at rest, the burden was upon plaintiff to clearly establish the cause of the accident which befell her. There is nothing from the evidep.ce above noted, nor as otherwise shown in the record, which accounts for the accident, and we are forced to conclude that there was no condition of darkness on the platform of the car which could have caused plaintiff to fall therefrom.

It' is with reluctance that appellate courts reverse a judgment based upon the verdict of a jury, having for its particular duty that ¡of determining issues of fact. It is nonetheless our duty to review the facts and to reverse the findings when a preponderance of evidence indicates, as in this case that the jury’s findings are clearly erroneous.

In the case of Chisolm vs. Roppollo, 1 La. pp. 269, the rule of law which compels appellate courts to reverse verdicts and judgments resulting from erroneous findings of fact has been recently stated, upon abundant authority therein noted.

Even though the place at which plaintiff was invited to alight was an unusual one, not a regular station, this fact itself would not impose upon the carrier the duty of exercising unusual care and of giving unusual warning or notice to its passengers.

Clogher vs. N. O. Ry. & Lt. Co., 143 La. 85, 78 South. 247; Freeman vs. N. O. Pub. Serv. Inc., 1 La. App. 600.

We conclude, from the facts in this case, that the plaintiff has failed to establish with any reasonable certainty that the defendant was guilty of any acts of, omission, or that it was in any manner negligent in the operation of the train upon which plaintiff was injured.

It is therefore ordered that the judgment herein be reversed and set aside, and that there now be judgment in favor of defendant, reversing plaintiff’s demand at her cost in both courts.


author: CLAIBORNE, J.'

text:
    No. 9206
    Orleans
    PETERSON v. SUTTER
    (February 15, 1926, Opinion and Decree)
    (March 15, 1926, Rehearing Refused)
    (May 4, 1926, Writ of Certiorari and Review denied by the Supreme Court)

      (Syllabus by the Court.)

    1. Louisiana Digest — Builders and Buildings. — Par. 17.
    A contractor may recover the value of his work and materials which have enured to the benefit of the owner although the work be defective or unfinished.
    Appeal from the Civil District Court for the Parish of Orleans, Division “A”, Hon. H. C. Cage, Judge.
    Action by A. F. Peterson against Sam E. Sutter. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    • L. L. Dubourg, of New Orleans, attorney for plaintiff, appellant.
    Chas. Schneidau, of New Orleans, attorney for defendant, appellee.
   OPINION

CLAIBORNE, J.'

This is a suit on a building contract.

The plaintiff alleged that on August 23, 1922, he -made a contract with the defendant for demolishing certain buildings, and for the raising of a house and making alterations and additions on the1 premises owned by defendant on Carondelet Street for the price of $3500 as appears by the annexed contract; that plaintiff proceeded to execute his contract with materials and labor; that on October 20th all work under contract was stopped by' ’ defendant who informed 'the plaintiff that he would take over the work and complete it; 'that said agreement was confirmed in writing by plaintiff; but that defendant on the following day, through his attorney, denied having made such an agreement,,.and notified plaintiff to resume work on October 23rd; that notwithstanding said letter, the defendant- took possession--of . the premises and placed his own workmen in control thereby cancelling the building contract; tthat defendant is indebted to the plaintiff for all materials and labor furnished by plaintiff'and for the profit he-would have made on said contract; ■ that these- amount to $1980.25 for which he claims judgment against the defendant.

The defendant denied any. indebtedness to the plaintiff; he admitted the contract, but averred .that it had been .amended; he denied that the plaintiff had proceeded with the work, or that he had interfered with him, or had agreed to take over the building; and that he took charge of the contract only after plaintiff had abandoned it. - , •

There was judgment in favor of defendant dismissing plaintiff’s suit.

He has appealed.

The evidence satisfies us that plaintiff abandoned the contract. After some disagreement between the plaintiff and the defendant, the former understood that the latter was willing to cancel the contract and to execute himself, and he wrote the defendant that he was willing to accept his proposition. The defendant quickly denied- any such proposition on his part and called upon the plaintiff to carry - out his contract and to resume work on October 23rd. The plaintiff acquiesced-in writing to .the demand and promised to resume work at once. But he failed to do so; and the defendant took charge of the building on October ' 25th. We interpret plaintiff’s action as an abandonment of the contract. His rights under these conditions are set forth in Babst vs. Perity, No. 7548 of this court in which we said:

“A contractor may recover the value of his work and materials which has enured to the benefit of the owner although the work be defective or unfinished.” See numerous authorities therein quoted and Allen vs. Wills, 4 La. Ann. 97.

The uncontradicted evidence is that the plaintiff began work on September 2nd and continued until October 16th when he withdrew.

That he paid out during that time:

To raise the house________________________________$325.00

For the brick work________________________________ 250.00

For a new window frame____________________ 20.00

$595.00

For labor ________________________________________________1167.25

Making a total of ________________1_____________$1762.25

That he received the first payment of ______________:_______________________________________1200.00

Leaving a balance due of--------------------$562.25

The plaintiff also claims the value of the old ■ materials from the demolished buildings which were used in the new building or which remained on the premises upon the following clauses of the specifications:

“All old materials including . bricks, slates, and lumber to be cleaned at -the expense of the contractor and stacked up in places where it will not interfere with the construction of the building or in the way of the owner’s business. All material that is good and sound to be used in the alternative, construction, and remodeling of the present building. •
“It is understood between the owner and contractor that all the old material from-the building demolished is to be used in the construction and remodeling of the present building. * * * Should any material be left over from the • demolishing of these two old buildings, same to be the property of the contractor and to be removed by him and the premises upon the completion of the remodeling of the present building to be left in first class and clean condition.”

According to these specifications the material from the demolished buildings or the debris were divided into two clásses, viz:' first, that part which could be utilized in the construction of the new building, and second, the other part left over or which could not be utilized,' was to become “the property of the contractor (or of plaintiff) and to be removed by him”.

As to the first part, it was originally the property of the defendant and was specifically stated that it would continue to remain his property and become incorporated into the new building. There is no reason therefore why the defendant should pay the plaintiff for its value..

As to the second part, which could. not be utilized, it was to become the property of the plaintiff, and he was to remove it. There is no contention that defendant used any part of it for purposes other than the building or that he has refused to deliver it to the plaintiff; on the contrary defendant testifies to his willingness to deliver it to plaintiff on demand.

The plaintiff also claims $350, or the ten per cent profit, he calculated he would have made upon the contract. This condition is evidently upon the theory that the defendant dismissed him C. C. 2765. But we have found, on the contrary, that plaintiff abandoned the contract. The reason of law in allowing plaintiff the amount expended by him in labor and material is the presumption that the owner has benefited by them. But the plaintiff cannot say that the defendant has benefited by his services, when he has abandoned the contract. He is therefore not entitled to his anticipated profit. If such were the law it would encourage contractors to abandon their contracts and set up claims for services not rendered to the same amount as if they had been rendered.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that the defendant Samuel E. Sutter be condemned to pay to the plaintiff Albert F. Peterson five hundred and sixty-two 25-100 dollars with five per cent per annum interest from October 31, 1922, till paid and all costs of suit. '


text:
    No. 2622
    Second Circuit
    BANNISTER v. CITY OF MONROE
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 29, 62.
    If a petition states a cause of action on any branch of a case, an exception of no cause of action is bad. Legier vs. Braughn, 123 La. 463, 49 South. 22.
    2. Louisiana Digest — Municipalities—Par. 246.
    The liability of a municipality lawfully engaged in the business of operating an electric light plant to light its streets and public places and to sell electric current to its inhabitants, is governed by the rules applicable to any private corporation or individual conducting a similar enterprise.
    Elias vs. City of New Iberia, 137 La. 691, 69 South. 141.
    Solomon vs. City of New Orleans, 156 La. 634, 101 South: 1.
    Appeal from the Fourth Judicial District Court, Parish of Ouachita, Hon. Percy Sandel, Judge.
    Action by William Henry Bannister and wife against the City of Monroe. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Huey P. Long and G. T. McSween, of Shreveport, McHenry and Montgomery and Lamlrin and Lamkin, of Monroe, attorneys for plaintiff, appellee.
    H. H. Russell, of -, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit by William H. Bannister and his wife against the City of Monroe to recover $15,000.00 damages alleged to have been sustained by them in the death of their minor son Troy Ellsworth Bannister, alleged to have been caused by the negligence of the defendant in failing to keep its electric light wire properly insulated and in allowing a “live wire” to come in contact with a chain that thereby became heavily charged with electricity and came within three or four feet of the sidewalk and which killed plaintiffs’ son by his coming in contact with the chain while he was passing along the sidewalk.

Defendant filed an exception of no cause or right of action, which was referred to the merits, and later an answer denying any fault, negligence, recklessness or carelessness on the part of itself or its employees, and alleged that the death of plaintiffs’ son was due to unavoidable accident.

On these issues the case was tried. There was judgment in favor of plaintiff for $750.00, and defendant appealed. Plaintiff answered the appeal and asked that the amount of the judgment be increased to $10,000.00.

OPINION

Defendant’s exception of no cause of action apparently is based on plaintiffs’ failure to include in their petition a statement of the various items for which damages are asked.

In paragraph XVII of their petition, plaintiffs allege:

“That from their said son’s death, your petitioners have lost his companionship, support, love and affection and petitioners and their said son have been deprived of things as above set out, for all of which they are entitled to recover from defendant not less than fifteen thousand ($15,000.00) dollars.”

We think that under all the allegations of their petition plaintiffs have expressed a cause of action, and that if defendant was desirous of having additional information, its remedy was to file a motion for a bill of particulars, and not an exception of no cause of action.

The exception of no cause of action must be overruled.

The evidence shows that a chain was used by the employees of defendant to raise and lower arc lights, and that this chain) had become charged with electricity, and that it was fastened to a ■ bolt on the electric light pole near the edge of the sidewalk, about three or four feet from the ground and within easy reach of a child or other persons passing; and that plaintiffs’ son was passing the electric light pole and in some unexplained way came in contact with the chain and was killed by a shock of electricity. '

It was gross negligence on the part of the city of Monroe to allow the chain so charged with electricity to be exposed to the touch of any one passing along the street, and in the absence of any excuse for leaving the chain so exposed defendant must be held liable for the death of plaintiffs’ son.

This brings us to the question of damages.

Plaintiffs cite us to numerous decisions in the direction of an increase in the amount of damages awarded.

Plaintiffs’ son was 12 years old, at the time of his death, and unusually bright and affectionate to his parents.

In Kent vs. Baton Rouge Electric Co., 154 La. 142, 97 South. 344, cited in plaintiffs’ brief, the Supreme Court said:

.“«■* *■ we cannot estimate grief and suffering in,.dollars and cents. In the assessment of such damages for offenses or quasi offenses, says Article 1934 of the Civil Code, much discretion must be left to the judge or jury,. and it is well settled that the article refers more particularly to the discretion of the trial judge than to that of the judges of appellate courts. See Grover vs. Shreveport Railways Co., 144 La. 705, 81 South. 258. We do not see any reason why the judgment should be either* increased or reduced.”

The above expression of the Supreme Court, we think is sound both in law and logic and we adopt it as the law of this case.

' It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.