text:
    No. 2368
    Second Circuit Appeal
    ROBERT EARL ELLZEY v. BOOTH FURNITURE AND CARPET COMPANY, LIMITED
    (June 27, 1925, Opinion and Decree)
    (Oct 21, 1925, Reversed on Rehearing.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Pleading—Par. 62, 71.
    An exception no cause of action founded upon the failure to allege that the negligent acts of defendant’s driver were done in the exercise of the functions for which he was employed, can he corrected by an order of the judge.
    2. Louisiana Digest — Master and Servant —Par. 164.
    Master’s liability for servant’s acts does not cease merely because the servant is acting contrary to, or in defiance of, express instructions from the master.
    3. Louisiana Digest — Automobiles—Par; 6a. Master and Servant — Par. 161, 164.
    Where the defendant’s employee was driving its truck back to defendant’s place of business after having delivered a kitchen cabinet, and the act that caused the wreck was the act of the driver in turning the truck to the left of the center of the road, the employer is liable for the act of its driver of its' truck on the occasion of its accident.
    4. Louisiana Digest — Master and Servant —Par. 165.
    The employer of a truck driver is responsible for his negligent acts unless it be shown .that he intentionally injured another or his machine • with employer’s truck.
    (ON REHEARING)
    5. Louisiana Digest — Automobiles—Par. 4; Negligence — Par. 25.
    The main and the sole purpose of requiring the passing vehicle is to notify the driver of the vehicle to be passed, so that he may make way. Where one, in attempting to pass a truck, saw that his signals had not been heard, he is guilty of contributory negligence barring recovery if he proceeds to pass the truck without further signaling.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a suit for damages for the wrecking of an automobile which resulted from the reckless and illegal driving of defendant’s motor truck by an employee of defendant. There was exception no cause of action finding which was overruled. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF CASE

REYNOLDS, J.

Plaintiff sues for $1050 as damages for the wrecking of his Nash automobile claimed to have resulted from the reckless and illegal driving of defendant’s delivery truck.

Defendant filed an exception of no cause of action.

Reserving its right under its exception of no cause of action, defendant answered, denying liability on the grounds:

1. That the act of its driver, if it caused the accident, was not done in the course of his employment, and that if the driver of its truck drove it recklessly or at a rate of speed in excess of that allowed by the ordinance of the town of Cedar Grove, he was not acting within the scope of his employment and defendant is not liable for the consequences of his acts.

2. That plaintiff was guilty of such gross negligence in the operation- of his car and in driving it at a rate of speed in excess of that permitted by the ordinance of the town of Cedar Grove and in placing himself in a position which made his injury possible as to constitute contributory negligence and bar his right to recover.

3. That plaintiff was guilty of reckless and careless driving and that his own acts and not those of plaintiff’s driver caused the accident.

The exception of no cause of action was overruled. The case was tried on the above stated issue and there was judgment for the plaintiff. Defendant appealed.

ON EXCEPTION OF NO CAUSE OF ACTION

The exception was founded upon the faliure to allege that the alleged negligent acts of defendant’s driver were done in the exercise of the functions for which he was employed. The defect in the petition was cured by an amendment filed under order of Judge E. P. Mills signed November 13, 1924.

OPINION

Plaintiff, a traffic officer of the town of Cedar Grove, attempted to pass a truck belonging to defendant and driven by one of its employees at. a speed of about 35 miles per hour. As plaintiff was about to pass the truck, the driver pulled his truck to the left of the center of the road in such manner as to make it necessary for the plaintiff to drive his car into the ditch at the side of the road in order to prevent a collision with the truck. In being thus forced off the road plaintiff’s automobile was completely wrecked, and in this suit he is asking for damages done to his car.

Defendant insists that the driver of the truck in turning his car to the left of the center of the road and in exceeding the speed limit fixed by the ordinance of the town of Cedar Grove was not acting within the scope of his employment.

Sam Emery, the driver of defendant’s truck, testified, page 18:

“Q. Have you any recollection of when a man by the name of Ellzey had a car wreck?
“A. Yes, sir.
“Q. Who was driving the Booth Furniture Company truck at that time?
“A. I was.
“Q. What were you doing for the Booth Furniture Company that day?
“A. I was delivering furniture; my last delivery was delivering a kitchen cabinet to the place where I just told you and I wa3 on my way back to town to the Booth Furniture Company’s store.”

In Cusimano vs. A. S. Spies Sales Co., 153 La. 551, 96 South. 118, the Supreme Court said:

“Master’s liability for servant’s acts does not cease merely because the servant is acting contrary to, or in defiance of, express instructions from the master.”

And, again:

“Though employee engaged in making deliveries turned aside from employer’s business for some purpose of his own, where he had fulfilled such purpose and was either continuing deliveries or returning to employer’s store, the employer was liable for his negligence.”

Defendant cites in support of its defense Williams vs. Palace Car Co., 40 La. Ann. 87, 3 South. 631.

In that case the porter of the Palace Car Company was held to have committed a willful, wrongful trespass.

In the present case, defendant employee was driving its truck back to defendant’s place of business after having delivered a kitchen cabinet, and the act that caused the wreck was the act of the driver in turning the truck to the left of the center of the road.

There is no evidence, in our opinion, that would warrant this court in holding that the driver of the truck intentionally turned the truck toward Mr. Ellzey or that he knew Mr. Ellzey was attempting to pass him.

Mr. Ellzey testified, page 3:

“As the front of my car got even with the hack of his he pulled over to the left and there was nothing for me to do but to hit him or go into the ditch.”
(Page 12)
“Q. Was there any especial noise being made that would prevent him from hearing it? '
“A. No, sir, only the way he was running that truck.
“Q. Do you think the ordinary man would have heard that horn of yours blowing?
“A. He should have, yes, sir, if he. hadn’t been driving a big truck like that, making so much racket he couldn’t hear us.”

C. W. Wierick testified, page 20:

“Q. State, Mr. Wierick, whether he sounded his horn or not.
“A. Yes, sir, he blew his horn.
“Q. As he went to go around him or before?
“A. Before.
“Q. Did the driver seem to observe it?
“A. Apparently he did not.
(Page 21)
“Q. Was the horn on Mr. Ellzey’s car working?
“A. Yes, sir.
“Q. What kind of a horn has he?
“A. I don’t know.
“Q. Well, would it blow loud? .
“A. Fairly loud.
“Q. How much did he blow it?
.“A. Blew it a couple of times.
“Q. How close to the truck was he when he blew it?
“A. Must have been a hundred feet or more.”

Under the above evidence and the authority quoted we think the defendant was liable for the act of the driver of its truck on the occasion of the accident.

Defendant further insists that plaintiff was guilty of contributory negligence in violating the speed ordinance of the town, of Cedar Grove and of reckless driving that amounted to contributory negligence when: he attempted to pass at a speed exceeding thirty-five miles an hour the truck on the left side of the road.

Under the evidence we do not think plaintiff was guilty of contributory negligence. His duty as traffic officer required him to take into his custody those who violate the speed ordinance and his task would be fruitless if he were prohibited from traveling at a rate of speed that would enable him to overtake one traveling at a prohibited rate of speed. Besides, the accident would not have occurred, notwithstanding the speed of plaintiff’s car, if defendant’s employee had not turned his truck to the left of the center of the road in front of the pursuing officer. It was not plaintiff’s fast driving that caused the wreck but the truck driver’s turning his car to the left of the center of the road that brought about the accident.

Whether plaintiff 'had a right to violate the speed ordinance of the town of Cedar Grove in order to overtake and put under arrest one who was violating that ordinance need not be passed on in this case;, for under our. view of the evidence the accident was caused by the driver of defendant’s truck turning his car to the left of the center of the road in front o£ the traffic officer attempting to overtake and place him under arrest.

Defendant’s third ground of defense that plaintiff’s attempt to pass the defendant’s truck at a high rate of speed was the proximate cause of the accident is not, we: think, sound, for the reason that the evidence convinces us that. it was the turning of defendant’s truck to the left o£ the center of the road that was the proxL mate cause of the accident.

This brings us to the question of damages.

Plaintiff testified that his car at the time of the wreck was worth $1100 to $1200; that .he paid for it, second-hand, $1340. He traded it in on a new car for $300. The District Judge'allowed him for the damages to his car $700, and we think the evidence sustains this estimate of plaintiff’s damage.

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

CARVER, J.

In our original opinion we held that the proximate cause of the injury in the case was the act of the defendant’s truck driver in suddenly turning to the left and that this was negligence for which defendant was responsible. We adhere to this view, but think we were in error in holding that such turning to the left was the sole proximate cause.

The act of the plaintiff in drawing alongside the truck was a concurrent proximate cause. If, therefore, his doing this without assuring himself that his signals had been heard was negligence on plaintiff’s part, such negligence would bar recovery.

Plaintiff’s counsel in their' brief do not discuss this precise question, but contend, and in our original opinion we held, that in exceeding the speed limit himself the plaintiff was not guilty of negligence contributing to the injury for the reason, first, that his duty as a traffic officer required him to arrest speeders, to do which he must speed himself; and, next, that plaintiff’s excess in speed did not contribute to the accident, which would not have happened, notwithstanding that speed, if the .truck driver had not turned to the left.

We still think that plaintiff’s speed had nothing to do with the accident, for which reason it is unnecessary to express an opinion as to whether the courts have the right to except traffic officers from the provisions of town ordinances fixing speed limits where the ordinances themselves fail to do so, and recall what is contained' in our original opinion on that subject.

Authorities are cited both ways on the question, some of which we have read, but without further investigation, which we think it unnecessary to make, we are unable to form a final opinion on it.

Plaintiff cites:

State vs. Gorham (Wash.), 110 Wash. 330, 188 Pac. 457, where a police officer was pursuing an automobile thief.

Defendant cites:

Keevil vs. Ponsford (Tex.), 173 S. W. 518.

Desmond vs. Basch, 92 N. J. 52, 108 Atl. 362.

State vs. Collins (Wash.), 167 Pac. 557.

But, as said above, we do think that plaintiff’s drawing alongside the truck did contribute proximately to the accident. Was this negligence?

The ordinance permits cars to pass each other but requires the driver of the passing car to signal. Section 12 of the ordinance provides:

. “Be it further ordained, etc., that upon signal that an oncoming vehicle desires to pass, all vehicles signaled shall pull over to the right and as near the curb as possible with safety, so as to permit the passing of such oncoming vehicle.
“When one vehicle overtakes another, it shall pass to the left of overtaken vehicle and shall not return to right until clear thereof.”

Of course, it goes without saying that in requiring the overtaking vehicle to signal, an effective signal is meant.

Mr. Wierick testifies that when plaintiff signaled he was 100 feet or more from the truck and that the truck driver apparently did not hear it.

Plaintiff’s petition, in Article V, alleges that he was unahle to attract the attention of the truck driver hy any . signal or noise.

It can hardly be contended that traffic officers are exempt from the duty of signaling, there being no reason why they cannot signal as well as others.

Without reference to the ordinance, though, we think ordinary prudence required him not to attempt to pass when it was evident that his signal had not been heard.

It may be claimed that plaintiff could have passed the • truck driver safely but for the latter’s turning to the left. This is true, but the driver could also have turned to the left without injuring plaintiff if the latter had not been there.

The need for plaintiff to pass and stop the truck driver was not, we think, so urgent as ■ to justify his doing so without more effective signaling. A heavy truck traveling rapidly on a paved road or street, of course, makes considerable noise, and it is no wonder that the' driver did not hear a horn blow 100 feet away.

Evidently plaintiff saw that his signals had not been heard, and we think his attempting to pass the truck without further signaling was negligence barring recovery.

In Lopes vs. Suhuque, 114 La. 1004, 38 South. 816, at page 1015, and again in Darasam vs. Kohlman, 123 La. 164, 48 South. 781, the Supreme Court held that while the violation of a statute may be negligence per se, yet it did not abrogate the ordinary rules relative to contributory negligence.

In the Darsam case the court quotes approvingly the following- statement of the rule:

“The fact that defendant’s violation of duty consists in the violation of a statute will not relieve the plaintiff of the obligation of showing that he was in the exercise of due care.”

The main if not sole purpose of requiring the passing vehicle to signal is to notify the driver of the vehicle to be passed so that he may make way. If the signal is not given or so given as to be evident that it is not heard, it seems to us that the negligence of the passer in trying to pass is fully as great as that of the other' party in turning, to the left.

For these reasons it is decreed that the judgment of the lower court be reversed and plaintiff’s demands rejected and - his suit dismissed at his cost.


source: Caselaw Access Project

author: CARVER, J. REYNOLDS, J.

license: Public Domain

text:
    No. 2390
    Second Circuit Appeal
    LAURENCE R. CONNELL AND VELMA CONNELL v. GILLILAND OIL COMPANY
    (June 27, 1925, Opinion and Decree)
    (July 11, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 154.
    Under Section 9, Paragraph 3, of the Workman’s Compensation Act No. 20 of 1914, as amended by Act No. 38 of 1918, it is the duty of the court, upon the application of either party, to order an examination of the employee to be made by medical practitioners in case of dispute as to the condition of the employee.
    2. Louisiana Digest — Master and Servant —Par. 159, 160 (j).
    Where an injured employee is suing for compensation under the Workman’s Compensation Act No. 20 of 1914, the fact that light work such as plowing made him go back to bed and use crutches determines the fact that his disability is total.
    3. Louisiana Digest — Master and Servant —Par. 158.
    If an old injury to an injured employee together with the new injury upon which he is suing, contributed to produce the disability complained of that would not bar recovery.
    -4. Louisiana Digest — Master and Servant —Par. 159, 159 (a).
    Where at the time of the rendition of the judgment the injured employee has not recovered, the court will not decide whether a total disability is only temporary but will give judgment for the period of disability not exceeding three hundred weeks.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon.. Stephens, Judge.
    This is a suit brought by the father and mother of an injured employee, a minor for compensation under the Workman’s Compensation Act No. 20 of 1914, as amended by Act 216 of 1924. There was judgment for plaintiff for a smaller amount than sued for and plaintiff appealed.
    Judgment amended and affirmed.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellant.
    Alex F. Smith, of Shreveport, attorney for defendant, appellee.
   CARVER, J.

Plaintiffs, father and mother of Jarrell G. Connell, sue for compensation under the Workmen’s Compensation Act (Act No. 20 of 1914, as amended by Act 216 of 1924) for injuries received August 21, 1924, by their son in an accident arising out of and in the course of his employment by defendant. They claim $20.00 a week for 400 weeks.

Defendant admits that Jarrel received injuries, but alleges that they have not and will not result in serious or permanent disability, and says ' it believes, and therefore alleges, that he has recovered.

T'he District Judge gave judgment for $20.00 a week during disability, not to exceed 300 weeks.

We are not informed whether the District Judge regarded the disability as only partial, therefore falling under Clause (c) or total but only temporary, and. therefore falling under Clause (a).

Plaintiffs appeal, claiming it is total and permanent and therefore falls under Clause (b).

Defendant took an order of appeal but did not perfect it.

Section 8 of the Act, as amended by Act 216 of 1924, reads in part as follows:

“Section 8. (1) That for an injury producing disability compensation shall be paid under this Act to an injured employee in accordance with the following schedule of payments:
’ “(a) For injury producing total temporary disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not, however, beyond three hundred weeks.
“(b) For injury producing permanent total disability to do work of any reasonable character sixty-five per centum of wages during the period of disability, not, 'however, beyond four hundred weeks.
“(c) For injury producing partial disability to do work of any reasonable character, sixty-five per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not, however, beyond three hundred weeks.”

I.

IS THE DISABILITY TOT AT,?

The accident occurred August 21, 1924. The injured boy was sixteen or seventeen years old and for about eighteen months previous to the accident had been doing the Work of a roustabout in an oil field which, the testimony shows, was hard, manual labor.

His father testified that he was a big-sturdy boy.

After the accident he had to lie in one position in -bed for eight or nine days and could not turn over unassisted. On getting up he could walk around on crutches.

The testimony of his father and himself was taken December 11, 1924. Up to that time he had done no remunerative work since the accident except to sell hosiery in Haynesville, near which he lived at the time of the accident, and in Vivian, where he lived at the time of the trial. The returns from these sales were only fifteen or twenty dollars. In getting about he had to use crutches.

After introducing the' testimony of the boy and his father the plaintiffs rested their case, and defendant’s counsel announced that he had no evidence to offer. Thereupon the District Judge, on his own motion, appointed Doctor E. L. Sanderson to examine the injured boy and report his findings. Defendant’s counsel objected to this and also objected to Doctor Sander-son’s report when made.

We. think these objections were properly overruled.

Paragraph 3 of Section 9 of the Compensation Act, as amended by Act No. 38 of 1918, makes it the duty of the court, upon the application of either party, to order an examination of the employee to be made by medical practitioners in case of dispute as to the condition of the employee.

We think the court had the right, without any application, in order to satisfy itself, to make the appointment.

Doctor Sanderson reported in writing as follows: '

“December 11, 1924.
“Hon. J. H. Stephens,
“First District Court, Caddo Parish, La.
“Dear Sir — I have just completed the examination of Jarrell Connell, of Vivian, Louisiana, who claims to have been injured on August 21, 1924, while in the employ of the Gilliland Oil Co., at Haynes-ville, La.
“I find a well-nourished healthy-looking young man who claims to be unable to get about without crutches. In bending forward and sidewise the lumbar region of the spine is rigid. There is increased knee jerk, which indicates possible cord pressure. He has slight inco-ordination of the lower limbs, which suggests cord disturbance. The X-ray made by Doctor Barrow shows evidence of injury to the left transverse process of the fifth lumbar vertebra with slight forward displacement of the body of this vertebra.
“I think it reasonable to attribute his symptoms to the abnormality of the spine. However, I feel sure that he is exaggerating the effects considerably. But the abnormality is definite and, of course, is permanent, as pressure on the cord tends to degeneration instead of recovery.
“Very respectfully,
“E. L. SANDERSON,
“Hutchinson Building.”

On January 29, 1925, further testimony was given by the boy and his father, and testimony by Doctor E,. L. Sanderson, Doctor S. C. Barrow, Doctor W. L. Waller and Doctor Thomas Ragan was also taken.

Doctor Barrow explains that the injury to the fifth lumbar vertebra spoken of in Doctor Sanderson’s report was a fracture which at the time the X-ray picture was taken had not become completely ossified.

He also corroborated Doctor Sanderson as to the displacement of this vertebra.

Doctor .Waller, who treated the boy just after the accident, testified chiefly as to what the boy’s father told him about the 'accident occurring in the boy’s childhood and which is hereafter discussed.

He also testified that at first he thought the boy’s back was only sprained, but on his failing to recover he had him sent 'to an orthopedic surgeon.

When asked:

“You are more familiar with the history of this case than any other physician that has seen Mr. Connell, and I will ask you to state to the court whether or not you think this boy is very seriously injured?”

And lie answered:

“Well, Mr. Smith, to be honest, I can’t tell you — I can’t make a prognosis of this case now; however, I didn’t think he was injured much at the time.”

Doctor Sanderson testified:

“Q. Doctor, as a general statement as to this boy’s condition, do you think there is very much the matter with him?
“A. I consider there is considerable.
“Q. Doctor, speaking about the effect <of this injury, I will ask you to please =state if it has been your experience that it is reasonable to expect a person in this ■.shape to do serious heavy manual labor?
“A. No, it is expected under circumstances of this kind of an injury that you would not be able to do heavy manual labor.
“Q. Doctor, I wish - you would explain this from your report. You say, ‘.I feel sure that he is exaggerating the effect considerably.’ What do you mean by that?
“A. Well, I believe it is almost impossible in a case like this to analyze or quite understand for - himself the effect of the injury.
“Q. Do you not think the fact that he has a claim pending in court, the- outcome of which depends upon him being injured, that it would have some effect upon making him believe he was injured?
“A. I think it does.”

The testimony of Doctor Ragan is not materially different from that of Doctor Sanderson, though he does not seem to have observed or did not remember the displacement of the vertebra, of which both Sanderson and Barrow testify; and while admitting that the boy has some disability thinks it not very great.

However, neither he nor Doctor Sander-son expressed the opinion that the boy is malingering; nor do they indicate how much disability they think there really is.

The boy .and his father testified that between the two trials the boy tried to work. He helped his father saw two or three sticks of wood and later plowed four or five rounds, the length of which is not stated. Jarrel says the sawing made him feel sore and he could hardly get up the next morning.

As to the plowing, he says:

“Q. What effect did that have on you?
“A. Well, I like not to have got back to the house. I was plowing along and my plow hung under a root and it jerked me and I like not got back home. It hurt my back awful bad and then I was back on my crutches again after that.”

His father says:

“Q. What did he do after that? (Meaning after the sawing).
“A. Well, he didn’t do anything for several days; he has been helping around the house with his walking cane and walked around with his walking cane without his crutches for some three or four days and after that he went back to his crutches and then several days later he come to the field where I was plowing and asked me to let him plow a round or two, and I did, and, of course, this other is hearsay as the man over there says, as to what he said or the way it affected him; but me and my wife went off to a different part of the field looking over the place and when I come back he wasn’t working and he said that the plow hit a root and hurt him again.
“Q. Has he been on his crutches since then?
“A.' Yes, been in the house most of the time since.” . *

The proof does not show when the plowing was done.

Summing up the evidence, we find it not disputed that there is a slight forward displacement of the fifth lumbar vertebra; that the left transverse process of this vertebra was fractured; that the lumbar region of the spine is rigid; and that there is slight inco-ordination of the lower limbs, suggesting cord disturbance.

Some disability is admitted by all the doctors who testify concerning it, and while two of them think the boy exaggerated the injury they express no opinion as to the real amount of injury or disability, nor do they say they think he can get along without crutches.

The efforts of the boy to do work were followed up with disastrous consequences and the father says he cannot dispense with crutches.

On the testimony as a whole, we think total disability is shown. %

There is some suggestion that the boy’s condition may be due wholly or partially to an injury received when he was a child two or three years old, at which time a wagon rolled over him.

It seems clear to us, though that whether that caused the displacement of the vertebra or not, it certainly could not by itself have caused the injury which now disables him.

His working at hard, manual labor for eighteen months while only fifteen or sixteen years old proves conclusively to our mind that the old injury could not, unassisted by the new, be the cause of his present condition. If it contributed, together with the new injury, to produce the disability, that would not bar recovery.

Fox vs. U. C. & O. P. Co., 147 La. 865, 86 South. 311.

Behan vs. Honor, 143, La. 348, 78 South. 589.

Plaintiffs counsel cite:

Moore vs. Peet, 162 Pac. 295; 99 Kansas 443, as holding:

“The phrase, ‘total incapacity for work,’ as used in the Workmen’s Compensation Act, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual task of a workman in such a way as to enable him to procure and retain employment is ordinarily rated as totally incapacitated.”

He also cites in support of this proposition:

Jarrell vs. Battalle, 93 Kansas 390.

London G. & Acci. Co. vs. Industrial Comm., 199 Pac. 962 (Colorado).

Meyers vs. Wadsworth, (Michigan), 183 N. W. 913.

We have not verified this citation by a reference to the cited cases, but the citation seems to us to express the law correctly.

IS THE DISABILITY ONLY TEMPORARY?

We must decline to enter into this inquiry. To do so would be to assume the functions of prophets for which we are neither authorized by law nor qualified by nature. If in any case of still continuing total disability we could, from the testimony of medical experts in the record, form any opinion of our own as to how long disability would last, we could not do so in, this ease which is totally lacking in such evidence.

For these reasons it is decreed that the judgment of the lower court be amended by decreeing the plaintiffs, for the us.e of their son, Jarrel G. Connell, entitled to compensation at the rate of $18.00 per week during his disability, not to exceed 400 weeks; the first payment decreed due August 28, 1924, together with five per cent per annum interest on each payment from the time of the maturity thereof.

The judgment herein rendered is decreed subject to the contract between plaintiffs and their attorney, Huey P. Long, whereby they agree to pay him for his services one-third of what may be recovered in the suit.

And as thus amended the judgment appealed from is affirmed.

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

Defendant asks for a rehearing on the ground that the judgment should have been for compensation for an Injury producing temporary total disability as provided for in sub-section (a) of section 8 of the Workmen’s Compensation Act and not for an injury producing permanent total disability under sub-section (b) of section 8 of that act.

As stated in our former opinion, it is impossible for us to tell under the evidence for what length of time the disability will continue.

As to when 'the disability will cease is a question beyond our ability to determine, and under the evidence and the provisions of the Workmen’s Compensation Act the plaintiff is entitled to compensation during disability, not exceeding 400 weeks.

Rehearing refused.


author: REYNOLDS, J.

text:
    No. 2313
    Second Circuit Appeal
    JOE WHEELER DEDMAN v. CADDO STEEL PRODUCTS COMPANY, ET AL.
    (June 27, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 154, 159 (a).
    Plaintiff suing under Workmen’s Compensation Act No. 20 of 1914 is entitled to collect compensation under only one of the provisions of that Act.
    2. Louisiana Digest — Master and Servant Par. 160 (i), 160 (j).
    Under the evidence plaintiff is entitled to compensation under Subsection 1 (e) of Section 8 of the Workmen’s Compensation Act, and the fact that. he collected compensation under Subsection (a) of Section 8 of that Act during his total temporary disability, does not estop him from now electing to come under Subsection 1 (e) of Section 8 of the Act for his compensation.
    3. Louisiana Digest — Master and Servant Par. 160 (b).
    Under the Workmen’s Compensation Act No. 20 of 1914, the only effect of an injured employee having accepted payment for temporary total disability during the time of that disability is to make it incumbent on him to account for the amount so received in the suit he elected to file.
    (The recent amendment to Section 8 of Act 20 of 1914 is Act 216 of 1924. Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    This is a suit under the Workmen’s Compensation Act No. 20 of 1914 for compensation to an injured employee.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Barnette & Roberts, of Shreveport, attorneys for defendants, appellants.
   REYNOLDS, J.

This is a suit under the Workmen’s Compensation Act for $18.00 per week for 300 weeks.

Plaintiff in .the course of his employment by defendant, Caddo Steel Products Company, was struck by a piece of steel or iron on the right leg above the ankle joint, causing him a severe injury, in consequence of which he was totally disabled to do work of any reasonable character for twenty-seven weeks, during which period of time Caddo Steel Products Company paid him the full compensation provided by law for injury producing temporary total disability.

The District Judge gave plaintiff judgment for $18.00 .per week for 100 weeks under Subsection (e) of Section 8 of the Workmen’s Compensation Act. Defendant appealed.

OPINION

Under the evidence in this case we think it conclusively shown that plaintiff received an injury that has seriously permanently impaired his usefulness of one of his members — ankle and foot.

The question presented for our determination is whether plaintiff is entitled to recover under Subsection (e) of Section 8 of the Workmen’s Compensation Act after he has already accepted compensation from his employer for total temporary disability during twenty-seven weeks under Subsection (a) of Section 8 of that Act.

Plaintiff’s counsel contend that he can, and cite us to the case of Porter vs. Amer, 146 La. 618, 83 South. 852, in which the Supreme Court says:

“It is equally clear that, while that disability did not last for 300 weeks, the statute makes no provision for the cumulative effects -of plaintiff’s different injuries, but that, when to the injury of her right foot, resulting in its total loss, there is added the injury to her left foot whereby its usefulness is seriously, permanently impaired, particularly in view of the fact that, she has now only the left foot to stand on and hear the greater weight on, loss of the great toe from that foot is much more serious than if it were the only injury that she sustained.
“We therefore conclude that the judgment appealed from should be amended by increasing the award therein made to $4.44 per week (being 55 per centum of plaintiff’s weekly wage of $8.07 9-13 per week) for 225 weeks under Clause (d), and 100 weeks for loss of great toe on left foot, under Clause (e) of Section 8 of Act 38 of 1918.”

The decision in that case is not applicable to the case at bar, we think, for the reason that in the cited case the court was dealing with an injury that had caused damage to two separate members.

In the present case the injury complained of is only to one member, that is, to the foot and ankle of one limb.

Defendant refers us to the case of Craft vs. Gulf Lumber Co., 151 La. 281, 91 South. 736, in which the court says:

“The plaintiff has answered the appeal, praying for an additional allowance of 100 weeks for the permanent and serious impairment of an important physical function, but additional compensation is not •allowable under other provisions of the statute. Section 8 (e), Act 38 of 1918.”

Under this decision we think the plaintiff, under the evidence herein, is entitled to collect compensation under only one of the provisions of the compensation act.

Under the evidence plaintiff is entitled to compensation under Subsection (e) of Section 8 of the Workmen’s Compensation Act, and the fact that he collected compensation under Subsection (a) of Section 8 of that Act during his total temporary disability does not, in our opinion, estop him from now electing to come under Subsection (e) of Section 8 of the Act for his recovery.

The only effect of his having accepted payment for temporary total disability during the time of that disability is to make it incumbent on him to account for the amount so received in the suit ■ he elected to file.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows:

It is ordered, adjudged and decreed that the plaintiff, Joe Wheeler Redman, do have and recover judgment against the defendant, Caddo Steel Products Company, and Union Indemnity Company, in solido, for weekly compensation of eighteen dollars per week for one hundred weeks, beginning November 1, 1923, with legal interest on each payment from the time it became due until paid; subject to a credit of four hundred and eighty-six dollars heretofore paid by defendant to plaintiff; said four hundred and eighty-six dollars to satisfy the first twenty-seven weeks’ compensation awarded under this judgment.

The fee of the attorneys representing the plaintiff herein are hereby fixed at one_ third of the amount recovered by the plaintiff under this judgment.

Defendant to pay all costs of this suit.


author: CLAIBORNE, J.

text:
    No. 9952
    Orleans Appeal
    ENOS BALDWIN, Appellant, v. CONSUMERS ELECTRIC LIGHT AND POWER CO.
    (June 29, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Municipalities — Par. 171, 173, 174.
    It is not for the citizen to question the necessity or expediency of a City Ordinance. It is his duty to obey it.
    2. Louisiana Digest — Municipalities — Par. 268.
    The fact that a pedestrain walks -upon a sidewalk in broad day light and stumbles upon an obstruction is not conclusive proof of negligence on his part barring him from recovery. It is a question of evidence.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a suit for damages for personal injuries caused by an obstruction on the sidewalk.
    Defendant filed an exception of no cause of action which was maintained, dismissing plaintiff’s suit.
    Plaintiff appealed.
    Exception dismissed and case remanded.
    W. J. Waguespaek, H. W. Waguespaek, attorneys for plaintiff appellant.
    John P. Sullivan, David Sessler, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit for damages caused by obstructions on the sidewalk.

The plaintiff alleged that on February 29th, 1924, at about 10:30 o’clock a. m. The defendant was working on a manhole on the sidewalk of Tchoupitoulas street, that the said manhole was left open by the defendant, without placing around it any railing as required by the City Ordinance; that it had placed upon said hole two loose planks about one inch thick by 18 inches wide standing on edge across the sidewalk without any signal of their .dangerous condition as required by City Ordinances, that while plaintiff was walking upon said sidewalk with two persons walking ahead of him, he stumbled and tripped against said plank and fell to the pavement fracturing his arm and receiving other injuries for which he claims of defedant $5,000 damages.

The defendant excepted that the petition disclosed no right or cause of action.

There was judgment maintaining the exception and dismissing the suit:

The plaintiff has appealed.

The defendant’s argument and brief disclose that the exception of no right or cause is based upon the propositions that the precautions used by defendant of putting planks were just as sufficient as the railing required by the ordinance, and that the hole and the planks were visible and should have been seen by plaintiff, and that if he did not see them he was guilty of contributory negligence.

1st We have decided, following the Supr.eme Court, that it was not for the citizen to question the necessity or expedience of a City Ordinance passed for the protection of the people; that it was the duty of the citizen to comply with the Ordinance. The violation of an ordinance is a presumption of negligence.

2nd The fact that a pedestrain walks upon a sidewalk in broad day light and stumbles upon an obstruction is not conclusive proof of negligence on his part barring him from recovery. It is a question of evidence. The allegation of negligence is one of defense and not of exception.

Babin vs. Sewerage Board, No. 9769, 57 S. W. 319, 28 Cyc. 1443; 28 Cyc. 1419, 1514; Beuchner vs. City of New Orleans, 112 La. 599, 36 South. 603; Weber vs. Union Development and Construction Co., 118 La. 77, 42 South. 652; Stern vs. Davies, et al., 128 La. 182, 54 South. 712; Robertson vs. Town of Jennings, 128 La. 806, 55 South. 375; Lemoine vs. City of Alexandria, 151 La. 562, 92 South. 58.

The exception of vagueness was not well founded.

We think the exceptions should be dismissed and the case remanded for further proceedings. It is so ordered.

Judgment reversed.


text:
    No. 10,085
    Orleans Appeal
    MERCANTILE ADJUSTMENT AGENCY v. SALVADORE PALMISANO, Appellant
    (June 29, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest^- Pleading — Par. 51.
    An exception filed on the ground that the paragraphs of the petition are not numbered will have no effect unless accompanied by a certificate of counsel tnat it is filed in good faith and not merely delay. See 1 S. first and sixth of Act 228 of 1924 p. 443-446.
    2. Louisiana Digest — Bills and Notes— Par. 218.
    In a suit on a promissory note the burden of proof is upon the defendant to support the allegation of want of consideration.
    3. Louisiana Digest — Bills and Notes— Par. 218.
    The note carries with it the presumption of consideration.
    4.Louisiana Digest — Appeal—Par. 512.
    When the judgment allows eight per cent upon the amount of a note of $232 and twenty per cent attorney’s fees no damages will be allowed for a frivolous appeal.
    C. P. 907.
    Appeal from First City Court, Hon. Val. J. Stentz, Judge.
    This is a suit to collect the sum due on a promissory note. ‘ There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. A. Casey, attorney for plaintiff, appellee.
    Puneky and Barrios, attorneys for defendants, appellants.
   CLAIBORNE, J.

Plaintiff alleges that it is the holder and owner of a promissory note for the sum of $290, dated November 8th, 1924 payable in installments* of $29 on the 8th day of each month, paraphed for identification with an act of chattel mortgage before Jos. A. Casey, Notary, of the same date; that defendant has paid oh account of said note $58, leaving a balance due of $232.

For exception the defendant alleged “that the paragraphs of plaintiff’s petition are not numbered as required by Act 228 of 1924” Sec. 1 p. 443 S. First; S — Sixth p. 446 of same Act provides:

“Every exception which may be filed in advance of the filing of an answer shall be accompanied by a certificate of the counsel filing the same to the effect that it is filed in good faith and not merely for the purpose of delay; * * * Unless accompanied by the certificate of counsel aforesaid, no such exception shall have any effect as a defense or to prevent the taking in regular course of a judgment by default and c.”

No certificate of the counsel for the defendant accompanies the exception. Therefore it can have no effect.

The answer the defendant admitted he signed and endorsed the note, but averred that there was a failure or want of consideration and therefore he was not indebted to the plaintiff.

The note carried with it the presumption of consideration Act 64 of 1904 Sec. 24 p. 152. Therefore the burden of want of consideration was on defendant Sec. 28-1 H. D. 175.

Upon the trial of the case the defendant was absent and unrepresented.

There was judgment for plaintiff as prayed for, for $232 with eight per cent per annum interest from March 5, 1925 till paid with twenty per cent attorney’s fees with recognition of plaintiff’s chattel mortgage.

The defendant has appealed. He has made no appearance here.

In this court . the plaintiff has prayed for damages for frivolous appeal. Considering the rate of interest and the amount of attorneys fees allowed by the judgment we do not think the plaintiff entitled to damages. C. P. 907, Osborne and Tolle vs. Powell & Co., 17 La. Ann. 169; Paul LaFrance vs. Jourdain Martin, 17 La. Ann. 77; Henry Renshaw vs. Keene Richards, 30 La. Ann. 400; Citizen’s Bank of La. vs. N. M. Benachi, 38 La. Ann. 376.

Judgment affirmed.


text:
    No. 9736
    Orleans Appeal
    MRS. NORBERT J. WILTZ v. CITY OF NEW ORLEANS, Appellant
    (June 29, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Municipalities—Par. 255.
    As a general rule the City of New Orleans is liable in damages to a pedestrian who walks over a sidewalk and suffers injury owing to its defective condition.
    2. Louisiana Digest — Municipalities—Par. 257, 260.
    But that responsibility exists only when the defective condition is dangerous or calculated to do injury, and when the city had actual or constructive knowledge of the defective condition.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court. Hon. Percy Saint, Judge.
    This is a suit for damages arising out of a defective sidewalk which caused an injury to a pedestrian.
    Judgment for plaintiff.
    Defendant appealed.
    Judgment reversed.
    H. W. Robinson, Daniel Wendling, attorneys for plaintiff and appellee.
    W. C. Jones, Francis P. Burns, attorneys for defendant and appellant.
   CLAIBORNE, J.

Plaintiff stepped into a hole on a sidewalk and suffered an injury for which she sues the City of New Orleans.

The plaintiff alleged that on December 19, 1922, at 4:45 P. M., she was walking along the river-side sidewalk of Dauphine street, between Canal and Iberville streets, when about some thirty feet from 'the corner of Canal she stepped into a hole on the sidewalk near the wall, about nine inches wide, one foot in length and from four to six inches deep; that she sprained her ankle, was confined to her bed for three weeks, and to her home for six weeks* that said street is all day constantly crowded with pedestrians, and that.it was gross negligence on the part of the city to leave holes in the sidewalks of which it had actual or constructive knowledge for months prior thereto. She claimed the following damage:

Servant hire __________________----------------------$ 30.00

Dr. Stone __________________________________________________ 25.00

X-ray -------------------------------------------------------- 7.50

Dr. Heninger ---------------------------------------- 5.00

Medicine ------------------------------------------------- 2.00

$69.50

Suffering ------------------------------------------------ 5000.00

$5069.50

The defendant denied the allegations of the petition and alleged that the injury was due to the carelessness of the plaintiff.

There was judgment for plaintiff for $569.50, from which defendant has appealed.

The District Judge found that the hole in the sidewalk was about fourteen inches wide and four to six inches deep; that the hole had existed for about six months, during which time several people had stumbled into it; that the city had actual or constructive notice of it on account of the prominence of the locality and should have repaired it.

It is true as a general rule that the City of New Orleans is liable for an injury suffered by a pedestrian in walking over a sidewalk owing to its defective condition. But that responsibility exists only when the defective condition is dangerous or calculated to do injury, 28 Cyc. 1367, note 86, pp. 1384, 1388, and when the city has actual or constructive knowledge of the defective condition.

In the leading case of O’Neil vs. City, 30 La. Ann. 220, a plaintiff fell from a gutter crossing in bad condition. The court said; “The defect which caused the accident was often seen by and was Well known to some of those employed by the city to repair its streets,” and the plaintiff was allowed a judgment. Blume vs. City of New Orleans, 104 La. 345, 29 South. 106; Aucoin vs. City of New Orleans, 105 La. 271, 29 South. 502; Labarre vs. City of New Orleans, 106 La. 458, 460, 30 South. 891; Buechner vs. City of New Orleans, 112 La. 599, 603, 605, 36 South. 603; Lorenz vs. City of New Orleans, 114 La. 802, 38 South. 566; Weinhardt vs. City of New Orleans, 125 La. 351, 51 South. 286.

In Mrs. Elsie Peetz vs. St. Charles St. Ry. Co., 42 La. Ann. 541, 7 South. 688, the court said on p. 547:

“It is not shown that the defendant company had notice of the condition of the bridge or that any complaint was made prior to the accident or that the crossing was at all hazardous."

In Labarre vs. City of New Orleans, 106 La. 458, 30 South. 891, the court said on p. 460:

“The evidence shows the condition of the sidewalk at the point where the fall occurred was such as to present the element of danger to pedestrians on a dark night.” Yerser vs. Murdock, 126 La. 795, 52 South. 1028; Goodwyn vs. City of Shreveport, 134 La. 820, 64 South. 762.

In Weinhardt vs. City of New Orleans, 125 La. 351, 51 South. 286, the court said on p. 356:

“There is no negligence for which she can be held, unless it appears that she has been warned or notified, either expressly or by implication.”

In the case of James vs. City of N. O., No. 8950, this court said that the fact that others besides the plaintiff’s mother had slipped upon the manhole and had received injuries would not serve as evidence of actual or constructive notice to the city in the absence of proof that those accidents had be'en communicated to the city authorities. In this case there is evidence that some few persons tripped into the hole, but the evidence is that they were not hurt thereby.

“Prior accidents at the precise place where plaintiff was injured and caused by the same defect or obstruction do not necessarily show negiigence on the part of the municipality.”
“If the full description of the alleged defect in a municipal case shows that it was not naturally dangerous, and must almost inevitably occur in the many street miles of a city, unless a grievously burdensome degree of care and expense is to be exacted, a recovery will not be allowed even though witnesses do testify to prior accidents.” 86 N. E. 833.
“The city is not an insurer against accidents upon sidewalks.” 4 Dillon S. 1711, 3 Abbott S. 1001, Elliott S. 793, 29 C. J. 680.
“The sidewalk in this case was not absolutely safe but it was reasonably safe, and that is all the law requires.” 32 Grat. 798, 64 N. Y. Supp. 636, 199 N. Y. 79, 28 Cyc. 1366.

In the present, case the testimony is that the pavement of the sidewalk is concrete; that up against the Wall there was a hole in the pavement about 10 or 12 inches wide by 10 or 12 inches long and about four inches deep.

Wm. Odom for the plaintiff is the only witness who says that it was 12 or 14 inches wide and 4 or 5 inches deep; no witness says it was 6 inches deep; the hole’ had existed for six or eight months prior to the accident; the same Odom testified that he sold newspapers at a stand some thirty feet from the hole; that many people passed on that sidewalk which led to Holmes’ store on one side and Canal street on the other; that during that time he saw half a dozen persons put their foot into that hole and that he himself did it, but that no one was ever hurt; and that he told no one of the existence of that hole. No other witness testified to the existence of that hole.

On the other hand, Officer Apkin, whose duty was to check traffic on Dauphine street, between Canal to Iberville, from 10:30 A. M. to 6:30 P. M., and who passed upon that sidewalk from once to twice per hour never noticed any defect on the sidewalk; and never heard any complaint from anyone, not even from the newspaper dealer; his duty is also to report defective sidewalks.

Sergeant Hemard had charge of traffic from Iberville to Howard avenue; there was not a day that he did not stand in the alley leading to the back of Katz & Besthoff, waiting for his car on his way to dinner. This alley opens on Dauphine within 30 feet of the hole. Never noticed any hole in the sidewalk, nor did anyone speak to him about any. He would have reported it had he known of it.

Edward L. Chapotel is manager of Katz & Besthoff store at the corner of Canal and Dauphine.

The hole was on the Dauphine side of his building. No one had ever made any complaint to him about a hole. The first time he heard of it was after the accident and after this suit. A representative of the city of New Orleans called upon him to ask him whether he knew anything of the accident and he told him no; he walked out and “located a small hole”; he immediately had it filled up; it was the first time he had seen the hole or heard of it, although he had occasion to go upon the sidewalk in the management of the business; “anybody that would fall through there would have to rub their shoulders very close against the wall.”

Philip Mouledons was sidewalk inspector on the date of the accident; it was his duty to investigate sidewalks and to hear complaints about them; no complaint was ever mads to him'about any defect in that sidewalk except after this suit.

Joseph Maes was a member of the police force; his beat included Dauphine street, between Canal and Iberville; went up and down Dauphine street often; never noticed any defect in the sidewalk; it was his duty to report any; none was reported to him.

James A. Gazan was a policeman; same beat as Officer Maes, only he was on duty from 7 A. M. to 3 P. M.; he walked up and down the river side of Dauphine street from Canal to Iberville about five or six times every day; never noticed any hole nor was any complaint made to him; it was his duty to report holes in sidewalks.

Odom says the hole “was only a worn place in the sidewalk up near the building,” and he never “thought to report anything like that.”

Defendant’s counsel’s brief in Goodwyn vs. City of Shreveport, 134 La. 820 (824) 64 South. 762, is copied in the report; among other authorities quoted by it we cite one.

In speaking of an accident from a depression in a sidewalk 7 inches by 2% feet across in the center of the sidewalk by a depression of 2% inches, for which the city was sued, the court said:

“If the existence of such a defect is to be deemed evidence of negligence on the part of the city, then there is scarcely any street in any city that is reasonably safe within the rule, and when accidents occur the municipality must be treated practically as an insurer against accidents in the street. The law does not prescribe a measure of duty so impossible of fulfillment, or a rule of liability so unjust and severe. It imposes upon municipal corporations the duty of guarding against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care. But when an accident happens by reason of some slight defect from which danger was not reasonably to be anticipated, and which according to common, experience was not likely to happen, it is not chargeable with negligence.”

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

Judgment reversed.


author: WESTERFIELD, J.

text:
    No. 8592
    Orleans Appeal
    PANAMA SASH & DOOR CO., Appellant, v. CHARLES G. DELISLE, ET AL., U. S. FIDELITY & GUARANTY CO.
    (April 21, 1923, Original Opinion and Decree.)
    (June 29, 1925, Opinion and Decree on Rehearing.)
    (September 29, 1925, Writ of Certiorari and Review Denied.)
    Appeal from Civil District Court, Parish of Orleans, Division “B”. Hon. Fred D. King, Judge.
    For the reasons assigned, our former-opinion and decree is reinstated.
    A. D. Danziger, attorney for plaintiff and appellant.
    J. Zach Spearing, attorney for defendant and appellee.
   O-N REHEARING

WESTERFIELD, J.

A thorough reconsideration of this case and of the able briefs and arguments of counsel convinces us of the correctness of our former- decree. Whatever may have been decided in La. Glass and Mirror Works vs. Irwin, 126 La. 555, 52 South. 765, and in Carr vs. Weir, 133 La. 22, 62 South. 219, so confidently relied upon by defendant, and no matter how close the analogy between Act 134 of 1906, the controlling statute when these cases were decided, and Act 262 of 1916, which we are presently considering it is impossible to escape the effect of the later jurisprudence beginning with Shreveport Mutual Building Association vs. Whittington, 141 La. 41, 74 South. 591, and affirmed in Audubon Homestead Association vs. A. Stef Lumber Company, 158 La. 1054, 105 South. 62; and Fidelity Homestead Association vs. Kennedy and Anderson, 158 La. 1059, 105 South. 64.

We quote the. following from Fidelity Homestead Association vs. Kennedy and Anderson:

“Regardless of what any other court may have at one time said, and with what good reason, the fact remains that in Shreveport Mutual Bldg. Assn. vs. Whittington, 141 La. 41, 74 South. 591, this court held that the service of a sworn account on the owner was not a condition precedent to recovery against the surety on' a contractor’s hid; and the reason there given.by the court is equally applicable to the failure to record the claim in the Mortgage Office, to-wit: That by the terms of the statute, ‘The surety * * * shall be limited to such defenses only as the principal of the bond can make.’ And on the strength of that r-uling, material men have since very generally neglected, as a useless formality, the service of accounts upon owners, and even any recordation thereof in the Mortgage Office. It would therefore be wholly improper to change that ruling without warning; and any desired change should be sought at the hands of the law-making department of the government. Accordingly, this court has again reaffirmed that doctrine in Audubon Homestead Assn. vs. Stef Lumber Co., our No. 25,904, not yet reported; and we adhere to it now.”

As to the contention that the failure of plaintiff to record his claim in time caused defendant to return certain security it had exacted from the owner as indemnity and otherwise prejudiced defendant in its relation to its principal, we quote the following from the same source:

“The surety contends that it is not liable at all upon the bond, for this, to-wit: That plaintiff was having said building erected for account of one Mrs. H. B. Stackhouse; and that, to the knowledge of plaintiff, there was a side agreement between the contractor and said Mrs. Stackhouse, whereby the price to be received by the contractor was, not $5000.00, as declared in the building contract, but $6500.00; of which $1500.00 was to be paid by Mrs. Stack-house; and of which the surety knew nothing. And it complains that the trial judge refused to admit any evidence on that point.
“This matter presents two aspects; one, as between the surety and the plaintiff, and the other, as between the surety and the furnishers of material.
“(1) As between the surety and the material men, such evidence was irrelevant and could not affect their claims. It is now well settled in this state that the surety on a builder’s bond, given in accordance with the requirements of the statute, cannot escape liability towards laborers and material men on the ground of some breach of the contract on the part of the owner, or because of some equity which might estop the owner himself from recovering against said surety. First Nat. Bank vs. Hudson Construction Co., 156 La. 352, 100 South. 451, and authorities there cite'd.”

For the reasons assigned our former opinion and decree is reinstated.


author: ODOM, J. REYNOLDS, J.

text:
    No. 2293
    Second Circuit Appeal
    MRS. MARGERY M. ROARK ET AL. v. DR. J. I. PETERS ET AL.
    (June 30, 1925, Opinion anid Decree)
    (July 11, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Physicians—Par. 5.
    Where the physician operating on a patient left a sponge in the abdomen which caused pain and suffering until it was discovered and removed by another physician, the fact that this sponge was left in the abdomen did not constitute negligence per se. The evidence showed that the physicians and nurses used due and proper care and diligence during the operation and after, thus precluding a recovery for damages against them.
    2. Louisiana Digest — Negligence—Par. 41; Evidence — Par. 53, 59, 60.
    The absence of evidence that the sponge did not have tape attached to it does not discharge the plaintiff of the burden of proof that physicians were negligent. She has failed to prove negligence on the part of physicians.
    (Civil Code, Art. 2315. Editor’s note.)

      ON APPLICATION FOR .A REHEARING.
    I. Louisiana Digest — Pleading—Par. 62; Negligence — Par. 38, 39'.
    Allegations in a petition that the injury was due to gross fault, carelessness, and negligence of a physician and the nurses, employees and representatives of a hospital, but do not point out any specific account of negligence of the nurses, employees or representatives are not sufficient to support a demand for damages against those in charge of the hospital and therefore, an exception no cause of action will be sustained.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides. Hon. John A. Williams, Judge. Hon. Leven L. Hooe, Judge. .
    This is a shit to recover damages for pain and suffering and impairment of health caused by alleged negligence of physician and nurses in an operation. The court sustained exceptions no cause of action to plaintiff’s demand against all of the defendants except Dr. Peters, and on trial of the ease rejected their demands in toto.
    Plaintiffs appealed.
    Judgment affirmed.
    •B. T. Dawkins, of Alexandria, attorney for plaintiffs, appellants.
    Overton & Hunter, of Alexandria, attorneys for defendants, appellees.
   ODOM, J.

The plaintiff, Mrs. Margery M. Roark, who expected soon to be a mother- for the first time, went to the city of Alexandria to be confined. Upon the advice of relatives and friends she sought and procured the services of Doctor J. I. Peters to attend her during this period. Doctor Peters visited her during period of delivery and made such examinations and administered such treatment as was necessary.

On the evening of February 19, 1922, Mrs. Roark, the plaintiff, who was then at the home of her sister, Mrs. Thompson, suffered a severe hemorrhage. Doctor Peters was sent for hurriedly and when he arrived he found plaintiff lying on the bathroom floor in a pool of blood. He made an examination of the patient and reported to the members of her family that she was in a critical condition and asked that another physician be called in consultation, whereupon Doctor G. M. G. Stafford was called. It. was decided that in order to save the life of the patient the child should be delivered at once, and Mrs. Roark was carried to the Baptist Hospital in an ambulance. The physicians decided that a Caesarean section operation offered the safest method of delivery both for the mother and the child. It seems that this conclusion was communicated to the relatives, who agreed to it, and that thereupon two other physicians — Doctor Rand and Doctor Anthony— were called in to assist in the operation. In addition to these four physicians there were three nurses — Miss Jane Yates, supervisor of the operating room, Miss Cleve and Miss Poe, hospital nurses — in the room assisting in the operation. The operation was performed by .Doctor Peters, but, as stated, assisted by the other physicians and the nurses. Both the mother and the child were saved.

After the operation the plaintiff did not recover rapidly. She suffered from severe p'ains in the abdomen; at times was troubled with constipation and at times with dysentery; she could not straighten her-body without pain.

Doctor Peters continued to attend her but failed to discover the cause of the trouble.

After several months she went to relatives in Mississippi where a physician was called. This physician examined her and concluded that' there was something seriously wrong and 'the patient was carried to a hospital in Memphis where Doctor J. A. Crisler, an eminent specialist of that place, examined her and finally, with the assistance of Doctor Vaughn, he performed an operation and found in and removed from- her abdomen a large lap or towel sponge which had been left there by Doctor Peters at the time he performed the operation at Alexandria.

The patient rapidly regained her health and has recovered.

She brings this suit against Doctor Peters and his- partner, Doctor Anthony, and. against the Baptist Hospital for damages for pain and suffering and impairment of her health, expenses, etc., and she alleges that her condition subsequent to the operation was caused solely by the presence of the sponge in her abdomen; and she alleges that in leaving said sponge in her abdomen Doctor Peters was grossly careless and negligent; and further, that the hospital nurses were grossly careless and negligent and that the hospital is therefore liable with Doctor Peters for her injury.

The court sustained exceptions of no cause of action to plaintiff’s demand against all the defendants except Doctor Peters, and upon trial the court rejected her demand in toto. She has appealed.

OPINION

The major act of negligence which plaintiff charges against Doctor Peters and the nurses is that her wound was closed without removing the sponge. This, it is contended, was negligence per se. But even if it be conceded that the closing of the wound by the operating surgeon without removing the sponge was negligence per se it does not necessarily follow that a physician who fails to remove a sponge or a tube from a wound made by the operation is guilty of such negligence or carelessness as to make him liable in damages for the injuries resulting therefrom.

The question in this case is not whether Doctor Peters was careless in leaving the sponge in Mrs. Roark’s abdomen, because it may be conceded that he was guilty of a degree of negligence in doing so; but the question' is whether he used that degree of care and caution in removing the sponge and checking them up and having them accounted for previous to the closing of the wound which is required of surgeons in such cases.

Physicians are human and therefore are not perfect. They are liable to err. They are not infallible. It is top much to expect that an ordinary human being will not make mistakes.

“A .physician or surgeon undertaking the treatment of a patient is not required to exercise the highest degree of skill possible. He is only required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by the members of his profession in good standing practicing in similar localities and it is his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning and to act according to his best judgment.” 30 Cyc. 1507.

The above is a correct statement of the rule with reference to the degree of learning and skill which must be possessed and exercised by physicians and surgeons.

But in a case like the one under consideration, it is not a question whether Doctor Peters possessed and exercised the required degree of skill and learning, for it takes no learning to dictate the necessity of removing a sponge from the patient’s body after an operation. He is not charged with- lack of skill but he is charged with negligence in failing to remove the sponge. But the above rule is illustrative of the point in this case. That rule requires that a. physician or surgeon use reasonable care and diligence in the exercise of his skill and the appli-' cation of his learning. Not the highest skill possible but reasonable care and shill.

So it is with reference to the point in the instant case. Doctor Peters was expected to exercise reasonable care and diligence. Plaintiff had a right to expect of him reasonable care and diligence and' not perfection. Therefore, even if he did leave a sponge in her body, if he exercised that degree of care, diligence and prudence in checking and accounting for the sponges prior to the, closing of the wound, which is reasonable and in accordance with the rules and methods practiced by the members of his profession in good standing, plaintiff had no ground to complain.

In the case of Sasingham vs. Berry, 150 Pac. Rep. 139, the Supreme Court of Oklahoma said:

“It is a matter of common knowledge, based upon everyday experience, that even in the exercise of the utmost care all men do make mistakes. And it was not error, under the pleadings and evidence in this case, for the court to instruct the jury that, though they believe the defendant left sponges in the body of the deceased, and her death was the natural and proximate result thereof, yet if they also believe from the evidence that the defendant in performing this operation exercised ordinary care in keeping track of the sponges, and seeing to it that they were all removed, before the incision was closed, he could not be held liable for negligence. The basis and gist of this action was not the result of the operation, but negligence in the performance of it. If there was no negligence in the performance of the operation, then there was no cause of action and could be no recovery; if there was negligence in the performance of the operation, then a recovery could be had. Whether or not' the defendant exercised that degree of care in performing the operation that the law imposed upon him was the paramount question and the test of the rights of the parties.”

The above language was used in a case where the following charge was requested.

“Common sense dictates that leaving the sponges in the abdominal cavity is absolutely and totally inconsistent with the exercise of ordinary care.”

The court refused to sanction this charge to the jury.

In the case of Ewing vs. Goode, 78 Fed. 442, Justice Taft made use of the following language:

“A physician is not a warrantor of cures. If the main ‘Res ipsa loquitor’ were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the ‘'ills that flesh is heir to.’ ”

Judge Taft did not have before him a “sponge case” involving a surgeon’s neglect to remove a sponge before closing the wound, but the doctrine announced by him is illustrative of the point raised in the case at bar. If the bare fact of leaving a sponge in the patient’s abdomen were sufficient evidence of negligence on the part of the surgeon to warrant recovery by the patient in a case like this there would be few who would be willing to perform an operation, for, as stated in the Oklahoma case, supra, even in the exercise of the utmost care all men do make mistakes.

Plaintiff has cited a long list of authorities from the high courts of all sections of the country, which we. have read and considered with the utmost interest; but none of them hold that a physician or surgeon is required to exercise more than ordinary care in checking and accounting for the sponges before closing the wound.

In the case of Barnett’s Adm’r vs. Brand, 177 S. W. 461. it was held that a surgeon should exercise reasonable care and skill in the removal of gauze pads necessary to a successful operation, and may not relieve himself from liability for leaving a pad in the wound by any custom requiring attendant nurses to count those used and removed.

See, also, to the same effect:

Davis vs. Kerr, 86 Atl. 1007 (46 L. R. A. N. S. 611).

In the case of Evans vs. Munto, 83 Atl. 82, it was held that in an action against a surgeon for negligence, proof that a drain was left in a' wound and allowed to remain there after the wound had healed, the burden was on defendant to show that its presence was not due to his negligence.

In the case of Samuels vs. Willis, 118 S. W. 339 (19 Ann. Cases 188) it was held that where in an action based on negligence of a physician in leaving a sponge in the abdomen after an. operation, the question whether he exercised proper care was still for the jury, since, because all men are at some time careless, does not relieve one from legal consequences of his careless act.

In the case of Arkridge vs. Noble, 114 Ga. 942, it was held that the removal of sponges is a part of the operation, a part which requires the exercise of skill.

In the case of Pare vs. Carter, 188 N. W. 68, a Wisconsin case, it was held that a surgeon’s duty of exercising due care to see that no packing is left in the abdomen of one operated on is not conclusively shown by evidence that lie followed the usual practice and custom among skilled practitioners of relying on count by the nurses.

The plaintiff cites these decisions and many more. They illustrate the points stressed by counsel but they are in no wise at variance with the general rule that a physician or surgeon is held to no more than ordinary and reasonable care and diligence in keeping track of and accounting for all sponges used in the operation, and that nothing more than reasonable care and skill are required of him in seeing that all sponges, etc., are removed before the wound is closed. The decisions hold that the- physician must not rely conclusively upon the count and checking of the sponges by the nurses. He must personally use his own skill and exercise his own faculties in accounting for them.

The question whether due and reasonable care and prudence have been exercised by the physician or surgeon is one to be found by the jury or the court and each case must be determined according to the facts and circumstances surrounding it.

In the case at bar the point for the court to determine is whether the operating physician and the nurses who were supplied by the sanitarium where the patient was operated on used due and proper care and diligence.

. There were seven people — four doctors and three nurses — who witnessed the operation. The four physicians and one- of the nurses testify as witnesses and there is but little difference in their versions of what transpired.

Doctor Peters, the defendant, testified about the operation in detail and after concluding his minute description of it, he says, with reference to the sponges:

“At this stage of the operation we are ready to remove the sponges and other appliances used in conducting the operation, which were introduced into the wound itself. The sponges were all removed, the large ones especially being looked for. The little ones were scattered over the operating room floor, about tbe table. As many sponges, referring to the large ones, or laparotomy sponges as were used were removed from the wound insofar as it was possible to determine by inspection, exploration and so-called feeling around or probing of the cavity of the abdomen and pelvis. It should be remembered that we have a great deal of loose space in the abdomen, an amount corresponding to that which was previously occupied by the child, the afterbirth or placenta and its membranes, and the ammotic fluid and the amount of blood that flows out, the latter, however, being the least consideration in the volume. The fact of the amount of space necessary to explore makes it necessary to go over the various recesses and amidst the cause of the intestines, and into the recesses of the pelvis and abdomen in search of the sponges .employed. All this was done as carefully and as thoroughly as we ever do in exercising care to prevent a sponge being left. After having satisfied myself that no sponges had been left, the nurse was asked for a counting and accounting of the sponges, as a check against our conclusions that none had been left. After satisfying myself that no large sponges had been left and after having assurance from the nurse that she had checked the sponges and none had been left, and that all were accounted for, that had been used, we proceeded to close the wound. The wound, however, was not closed for an interruption was indulged in while the supervisor and unsterile nurse counted the' little sponges which they were doing. They were slow accounting for the little sponges and we requested an accounting for the little sponges. 1 was told that a little sponge was missing, meaning a small one, meaning a sponge which isn’t a laparotomy sponge; whereupon we suspended procedure in the operation pending an account for the small sponge. At this time the patient’s condition was extremely grave, even critical. Her condition was not good. The doctor had stopped the anaesthesia, or was giving very light anaesthesia,- realizing that any other course was hazardous, and the patient showed signs of reacting, whereupon we instructed the anaesthetitst, who was Dr. P. K. Rand, to resume the anaesthesia in order that we might further ex plore for the missing small sponge, if necessary. My assistant and consultant, Dr. Stafford, expressed himself that no small sponge was used, and that expression was agreed to as being in conformity with my opinion in the matter, but that we would not complete the operation and close the abdomen further without a general exploration for this missing, small sponge, if the same was not found. The condition of the patient was such that any exploration or trementish or manipulation or delay was to be avoided, if possible.”

And he was asked;

“Q. Did I understand you to say that after you had performed the operation that you removed all the sponges that were visible to the eye or touch?”

And he answered:

“A. I did, and all that could be found by reason of exploration.”

And he was ‘ asked if, after making an individual search and exploration for sponges he then required the nurses to count and recheck the sponges and he said:

“A. We did and we never finished the operation until it had been done.”

He testified, and the physician administering the anaesthesia also testified, that the operation was held up for fifteen or twenty minutes pending a search for a missing sponge and that the wound was not closed until it was found.

Doctor G. C. Anthony testified that he did not personally look for the sponges as he was assigned to look after the baby, but he recalled the report that a small sponge was missing and that the operation was suspended until it was found. He says that the custom at the Baptist Hospital is that the operating surgeon removes all sponges visible or which can be detected by touch and then to call on the sponge nurse for a count and check, and if her check accounted for all of them that is accepted as final. He says that in this particular case everybody in the room joined in the ' search for the missing sponge. He says that Doctor Peters announced that he would open the abdomen if the missing sponge was not found.

According -to all the testimony, a nurse finally announced that she had found the sponge and then the wound was closed.

Doctor K. P. Rand only administered the ■anaesthesia and did not look after the ■sponges, but he recalls that before the closing of the wound there was a check and count of the sponges and one was found to be missing, and that the operation was suspended until it was found, a period of some fifteen or twenty minutes. He says that during that time some three or four nurses were counting and hunting for sponges.

Doctor G. M. G. Stafford, who was •called in as consulting physician and who assisted in the operation, testified that he was present during all the time and assisted Doctor Peters' and. was asked to detail what Doctor Peters did with reference to the sponges, and he said:

“Well, when the patient had been anaesthetized and prepared for operation the abdomen was opened. The intestines and the cavity were walled off with sponges, the uterus was delivered and opened. The baby and placenta delivered therefrom. The incision in the uterus was closed and I held the wound in the abdomen open while Dr. Peters searched for and removed the sponges that were in the field of operation. When he had removed all that he 'could see or feel, he told the nurse that he was ready to close up and wanted to know how the sponges checked. The nurse answered that all the lap sponges were accounted for, and I don’t know whether it was right at that moment or a moment afterwards, she said: ‘But there is a small sponge missing.’ Dr. Peters then remarked to Dr. Rand, who was giving the anaesthetic: ‘Doctor, keep your patient under the anaesthetic until this sponge is accounted for.’ I remember remarking at the time that I wasn’t worried about the small sponge because I knew none had been used in the abdominal cavity. Doctor Peters then told the nurse again; he said:' ‘Find that sponge, I am not going to let this patient leave the table until you find it.’ In a few moments, I d'on’t know what length of time, but a very short while, she said: ‘Thank God, here it' is, we have found it.’ We then being satisfied closed the abdomen and sent the patient to her room.”

Miss Jane Yates, supervising nurse, was present during the operation and was asked about the sponges and whether or not she examined them at the time they were brought into the- operating room, and she said:

"Well, I counted them as they were undone from the packages.”

And she said further that the lap sponges and all others were checked, and she was asked:

“Did you count and account for all of the sponges, both large and small, that had been used by Dr. Peters in the Roark operation?”

And she said:

“Yes, sir.”

And she further testified that she, reported to Dr. Peters before the operation was closed that all the sponges were found and accounted for.

With reference to the count of the sponges, she says that before the operation the sponges were brought in in packages and laid on a table and the packages were opened, when she counted the number in each package, and that after the operation and just prior to its completion the number of sponges that remained on the table were counted, as well as those which had been used and thrown into the bucket, and that the total of those not used and those used checked with the number taken out of the packages originally. She said that she counted both the used and the unused sponges and that they checked.

From all of the above testimony it appears that Doctor Peters used due care and diligence in the removal of the sponges. He did not rely on the count of the sponges by the nurses. He used those precautions ordinarily used by competent skillful surgeons. He exercised his own faculties. He removed all the sponges that were visible and all that he could find by exploring the wound and the patient’s abdomen.

The testimony of Doctor Stafford makes that point perfectly clear.

That very eminent surgeon, Doctor J. A. Crisler, of Memphis, who removed the sponge from plaintiff’s abdomen, was asked:

“Where a proper' search is made by the surgeon in charge for sponges, would it be likely, or probable, that he would fail to detect a lap, or towel sponge?”

And he answered:

“Yes; it is entirely possible for him to make a reasonable search for it and overlook it, because the pelvis and abdomen contain a good deal of space, in which there are numerous coils of intestine, and it is entirely possible for so large a sponge as a towel sponge to get away from you and not be where you really put it; and, therefore, might crawl or be moyed from where you put it into a very remote part of the abdomen, or pelvis; and unless a very exhaustive search was made you might overlook it. That is why we depend so largely upon the after checking of the sponge nurse.”

Counsel for plaintiff urges that it was negligence for the surgeon and nurses to use sponges without tapes. The best authorities state that all sponges used in operations of this kind should have tape attached to them, but we think it cannot be said that it is negligence per se to use sponges without tape. However that may be, the testimony in this case on that point is that all lap sponges used at the hospital where the patient was operated on have tape attached to them.

Miss Yates, the head nurse, was the only witness interrogated on' this point, and she made it perfectly clear that tape was attached to all lap sponges. There is nothing in the record to show whether the particular sponge removed from the patient’s body by Doctor Crisler in Memphis had attached to it tape or not, and therefore in the absence of other testimony on the point we must accept that of Miss Yates and conclude that there was tape attached to those used by Doctor Peters.

Counsel for plaintiff also cites the fact that Miss Yates, who counted and assisted in checking the .sponges, was not sterile and says that was negligence.

We see no force in that suggestion in this case.

If Doctor Peters had used an unsterile nurse in the operation and the patient had become infected and that had been the basis of the suit, plaintiff would have cause to complain; but we see no reason why an unsterile nurse should not be as capable of counting arid checking sponges as a sterile one.

As a second “major act of negligence” plaintiff cites the fact that Doctor Peters attended the plaintiff after the operation and failed and neglected to discover the presence of the sponge in her abdomen and that his failure was due to lack of skill and the negligence.

As a precaution, Doctor Peters had Mrs. Roark return to the hospital and had Doctor J. H. Cooper, a radiologist, make an X-ray examination of her abdomen. Doctor Cooper also made physical examinations and passed "a “barium meal” through her intestinal tract and found no evidence of any obstruction or of the presence of the sponge.

Several physicians were called, all of whom approved his course of treatment.

In the case of Gouner vs. Brosnan, 155 La. 1, 98 South. 681, the court said:

“The burden is upon the plaintiff to establish by a fair preponderance of the evidence the allegations of his petition charging Doctor Brosnan with ‘negligence, carelessness, want of skill and malpractice,’ in the methods he employed and in the manner he treated plaintiff’s wound.”

The plaintiff has not discharged that burden.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.

CARVER, J., dissents.

REHEARING OPINION

REYNOLDS, J.

Plaintiffs, appellants, ask for a rehearing on three grounds

I.

That the 'court erred in holding that—

“The question in this case is not whether Doctor Peters was careless in leaving the sponge in Mrs. Roark’s abdomen because it may be conceded that he was guilty of a degree of negligence in doing so, but the ■ question is, whether . he used that degree of care and caution in removing the sponges and checking them up and having them accounted for previous to the closing of the wound which is required of surgeons in such cases.”-

And in still refusing to give judgment for plaintiffs.

By the above quoted language we did not intend to indicate that Doctor Peters was guilty of any actionable negligence but only intended to admit, to express it in other language, that Doctor Peters is human and not above the frailties of an educated, trained, efficient surgeon.

II.

On the ground that the cases of Casing-ham vs. Berry, and Ewing vs. Goode, cited in support of our opinion, are not in accord with the established jurisprudence of these United States.

We think these decisions are in accord with Gouner vs. Brosman, 156 La. 1. South, the latest expression of our own Supreme Court touching the. liability of physicians or surgeons who are alleged to have erred in their treatment of their patients.

III.

That we erred in failing to pass upon the ruling of the lower court sustaining the exception of no cause or right of action filed on behalf of the Executive Board of the Louisiana Baptist Convention, one of the defendants.

In our opinion the ruling of the District Court sustaining the exception of no cause or right of action was .correct.

There is no allegation in plaintiff’s petitition that the Executive Board of the Louisiana Baptist Convention failed to employ competent, trained nurses, or failed to provide suitable operating rooms, or that the hospital failed to discharge any other duty required of it as a hospital.

. The blanket allegation that the injury complained of was due solely and entirely to the gross fault, carelessness and negligence of the said James I. Peters and the nurses, employees and representatives of the said hospital, without in any way pointing out any specific act of negligence on the part of the nurses, employees or representatives or designating in what way, if at all, any of said nurses, employees or representatives was negligent in the discharge of their duties, is not an allegation of fact sufficient to support a demand for damages against the Executive Board of the Louisiana Baptist Convention.

For the above reasons, a rehearing is refused.


text:
    No. 2330
    Second Circuit Appeal
    T. ROY FINCHER v MEYER-GREENWALD CONSTRUCTION CO.
    (June 30, 1925, Opinion and Decree)
    (July 11, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Damages—Par.,62, 66
    Where an automobile is claimed by plaintiff to have been demolished, and defendant, who claims that it could have been repaired, makes no effort to repair it, no proof being given that it could be repaired. Held, judgment for plaintiff for value of car, the defendant being entitled to the damaged automobile.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Second Judicial District Court of Louisiana, Parish of Webster. Hon. John S. Richardson, Judge.
    This is a suit to recover the value of an automobile demolished.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Drew & Drew, of Minden, attorneys for plaintiff, appellee.
    Stubbs, Theus, Grisham & Thompson, of Monroe, attorneys for defendant, appellant.
   CARVER, J.

Defendant appeals from a judgment in favor of plaintiff for $724.23, being $699.23, value of a Ford coupe damaged by the felling of a tree by defendant’s employees, and $25.00 paid for medicines and the services of a physician called to treat plaintiff’s wife, who was also injured in the same accident.

Defendant admits liability but urges that the judgment of the lower court was excessive.

The item of $25.00 is not contested.

But the claim is that it was error to allow the full price of .the car as the District Judge did; that plaintiff should have been allowed only the amount necessary to repair the car; and as this amount is not shown by the evidence, plaintiff should have been non-suited on this item.

We cannot agree with this view.

Plaintiff’s petition alleged that the car was' demolished and damaged beyond repair, and some of its witnesses so testify. Defendant, it is true, proved that the tires and wheels were not injured and probably the engine was not, though this was not proven. Some other parts, also, might have been salvaged. Defendant also proved that the cost of four new tires and wheels was about $78.50 and that of an engine was $75.00, but it did not prove that the car could be repaired, or what it would cost to repair it. Furthermore, it did not offer to repair it itself or suggest to plaintiff to do so and send it the bill. Neither did it show that plaintiff was financially able to have it repaired.

Defendant cites Armstead vs. Ry. Co., 108 La. 171, 32 South. 456, and Sherwood vs. Express Co., 158 La. 43, 103 South. 436.

In the Armstead case the plaintiff was held not entitled to claim for the total loss of 100 tons of cottonseed which he took no pains to protect though he could have done so at a cost of $50.00. On the contrary, he permitted them to remain exposed to the elements and led and perhaps encouraged his neighbors to make free use of them.

In the Sherwood case there was no pretense that the injured car was damaged beyond repair at a reasonable cost. The chief disputed item was in respect of the chassis which was not broken but merely bent. The proof showed it could have been straightened at a cost of $210.00, which the court decided was the proper amount to allow, and not $800.00, the cost of buying and installing a new chassis. The court allowed enough to make the car (a Packard twin six) good as new, finding $1041.50 sufficient for this purpose — a relatively small amount compared to the cost of a new car of that kind.

If defendant in this case considered the car worth repairing, it should have offered to take it and give a new one or at least have offered to repair it or request the plaintiff to repair it. Having done none of these things and plaintiff believing that the car was not worth repairing, and having acted and sued in that belief and introduced* testimony to that effect, we think the District Judge correctly held that he should recover its full value. .

Of course, on paying the judgment the defendant will be entitled to take the damaged car.

The judgment of the lower court is affirmed.

ON APPLICATION POR REHEARING.

REYNOLDS, J.

Defendant applies for a rehearing on the ground that our decree substantially amended the judgment appealed from and that therefore the costs of the appeal should have been taxed against plaintiff, appellee.

Our judgment affirmed the judgment of the lower court,- and the modification to which defendant, appellant refers was in no sense a modification of the judgment but simply an interpretation of what the meant on a question on which the District judgment of the lower court evidently Judge failed to give • a direct expression. But this language used by us in no sense changed the judgment of the lower court.

Por these reasons the application for rehearing is refused.