author: CULPEPPER, J.

text:
    No. 3468
    Second Circuit (Second Division)
    W. B. SMITH & CO., INC., v. ALEXANDER (Perritt, Intervener and Third Opponent.)
    (May 7, 1931. Opinion and Decree.)

      John T. Campbell, of Minden, attorney for plaintiff, appellee.
    Coleman Lindsey, of Minden, attorney for intervener and third opponent, appellant.
   CULPEPPER, J.

Plaintiff, under a writ of fieri facias issued out of the Third ward justice court, Red River parish, proceeded by garnishment process issued out of the city court of Minden, Webster parish, to seize in the hands of the police jury of Webster parish a certain claim or warrant of the defendant, P. M. Alexander, in the sum of $150, representing certain lumber sold by defendant to the police jury. Service of the garnishment interrogatories was made on the police jury on September 4, 1928; the police jury answering the same day, admitting the above indebtedness to defendant. On September 7, 1928, one W. L. Perritt came into court by intervention and third opposition, claiming to he the owner of the claim of Alexander against the police jury under an assignment of said claim on August 18, 1928, attaching documentary evidence of his claim of ownership.

Plaintiff filed an exception to the jurisdiction of the court, ratione personae and ratione materiae, wherein it is sought to he made defendant in the intervention and third opposition. Plaintiff also filed an exception of no right or cause of action against intervener, after its plea to the jurisdiction had been overruled by the court.

The exception of no right or cause of action was tried and sustained, and thfe intervention and third opposition dismissed. Prom the judgment of dismissal, intervener prosecutes this appeal.

It will be noted that the judgment upon which plaintiff secured the issuance of the fi. fa. is for the principal sum of $82.78. This being the case,’ this court, we think, is without jurisdiction, since the amount claimed by the plaintiff in the suit does, not exceed $100, exclusive of interest, as provided by article 7, sec. 29, of the Constitution, fixing appellate jurisdiction in Courts of Appeal. Perhaps appellant, who is the intervener, is under the impression that the amount claimed by him, $150, gives this court jurisdiction. Such is not the case, however.

In State ex rel. Seymour, Lic(., v. Judges, 34 La. Ann. 1046, the court, in passing upon a similar case, said:

“In a contest over a fund in the hands of the sheriff * * * the Circuit Courts have no jurisdiction if the demand of plaintiff exceeded one thousand dollars, although the amount claimed on intervention or third opposition be less than one thousand dollars. In such cases, the jurisdiction of the appellate tribunal must be tested by the amount claimed by plaintiff, and not by the claim of third opponent or intervener.”

Cases cited are Alter v. O’Brien, 31 La. Ann. 452; Picard v. Wade, 30 La. Ann. 625.

While no motion to dismiss the appeal has been filed, this court is bound to take cognizance of its want of jurisdiction. The appeal is therefore dismissed, at appellant’s cost.


source: Caselaw Access Project

license: Public Domain

text:
    No. 4010
    Second Circuit (Second Division)
    DAWKINS v. BAZER
    (April 9, 1931. Opinion and Decree.)
    Thigpen, Herold &■ Cousin, of Shreveport, attorneys for plaintiff, appellant.
    A. M. Pyburn and Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   CULPEPPER, J.

Plaintiff alleges, and defendant admitted in answer, that he (the chief of police) had announced publicly that he would not obey the orders which had been given to him by the superintendent, or any orders from the superintendent, and had announc- - ed publicly that he was at the head-of and was directing the police department, and claimed the right to make all appointments of members of the police force.

Plaintiff, as commissioner of public safety of the city of Shreveport, sued out a rule against defendant, as chief of police of said city, to enjoin him from usurping or interfering with the superintendent’s alleged authority as superintendent of the police department.

It is alleged in plaintiff’s petition, and admitted in defendant’s answer, that the plaintiff is. the member of the city coun- ’ cil who is - superintendent of the department of public safety and that, by an ordinance of the city council, adopted November 14, 1910, according to the provisions of Act 302 of 1910, providing a commission form of government for cities of the size of Shreveport, the police department of the city was assigned tó the department of public safety. The chief of police, however, contends in his answer to the rule that, by effect of Act 187 of 1918, placing the police department of Shreveport under civil service, the police department has been placed under the authority and control of the chief of police, and that he is thereby given the authority to appoint the members of the police force, subject, of course, to the rules and regulations of the board of civil service commissioners. '

The issue thus tendered was submitted on the pleadings and the ordinances annexed thereto. The district judge decided in favor of defendant and refused to issue a preliminary writ of injunction. It was from that decision plaintiff prosecutes this appeal.

The question to be decided is whether the Civil Service Act, which is Act 187 of 1918, the provisions of which were adopted by the city council of Shreveport in 1929, had the effect of amending the act providing for a commission form of government, Act 302 of 1910, so as to take away from the superintendent of public safety his authority as superintendent of the police department, and to confer it upon the chief of police. This being purely a question of law and one of more than ordinary public interest, we certified the case to the Supreme Court and asked for instructions on the following questions, under authority of section 25, article 7, of the Constitution, viz.:

1. In whom is vested the power of direction and control of the police department of the city of Shreveport?

2. In whom is vested the authority to appoint- the police officers of the city of Shreveport, below the rank of chief of police?

In answer to the above questions, the Supreme Court, in its opinion (134 So. 238) handed down in this case on March 31, 1931 (see opinion filed in this record), gave the following answer and instructions : ,

“Our answer, to the questions propounded by the Court of Appeal is that the power of direction and control, of the Police Department of the City of Shreveport, is vested in the Superintendent of the Department of Public Safety, and so is the authority to appoint the officers of the Police Department of. lower rank than that of the Chief of Police, subject, however, to the rules and regulations of the Board of Civil Service Commissioners; and the Court of Appeal is instructed to enter a decree accordingly.”

This court adopts .the opinion of the ' Supreme Court.

The judgment of the lower- court is therefore reversed; and there is now judgment in favor of plaintiff, Thomas C. Daw- ■ kins, superintendent of public safety of the city of Shreveport, and against defendant, ■ Dennis D. Bazer, chief of police of said city, making the rule absolute. It is further ordered and decreed that upon plaintiff furnishing bond in the sum of $500, as' provided by law, a preliminary writ of injunction issue as prayed for, restraining and prohibiting defendant from exercising . appointive powers or interfering with plaintiff’s appointive powers in the police force • of the city of Shreveport; and from disobeying or encouraging disobedience to orders issued by plaintiff as superintendent of public safety; and from interfering with or advising interference with the discharge by plaintiff of any employees of , the police department of the city of Shreveport subject to discharge without cause; and from in any way interfering with-plaintiff in the general management, eon- - trol, and direction of the police department of the city of Shreveport as such superintendent.

It is further ordered that this case be remanded to the lower court to be proceeded with according to law. It is further ordered that defendant pay costs of both courts.


author: JANVIER, J.

text:
    No. 13,620
    Orleans
    ALEXANDER v. THE STANDARD COFFEE CO., INC.
    (April 13, 1931. Opinion and Decree.)
    E. A. Middleton and Chas. J. Larkin, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Henry & Cooper and John A. Smith, Jr., of New Orleans, attorneys for -defendant, appellant.
   JANVIER, J.

Plaintiff, a colored woman, received injuries as the result of an accident in which either she was struck by or she walked into the side of an automobile truck owned by defendant and driven by one of its employees, who, at the time, was admittedly acting within the scope of his employment.

The truck was proceeding alongside the paved road known as the Jefferson Highway, and plaintiff, walking along the road near the right-hand edge thereof, was proceeding in the same direction.

Across the highway, just ahead of the truck and plaintiff, was a switch track of a railroad company, on which track was a locomotive which -had approached from the right side of the road and which bad been brought to a stop, so that the switch-man might “flag the crossing,” in order that the locomotive might proceed across without danger to persons and vehicles on the highway.

Plaintiff and the driver of the truck saw the switchman, and, realizing that, if the engine should proceed and should block the crossing, they would, to some extent, be delayed, hurried in an' e'ffort to cross before the locomotive could do so.

Plaintiff was struck and knocked down by the truck, or she walked into the side of the truck and was knocked down, and received injuries of which she now complains.

She avers that the truck struck her from the rear and without any warning of its approach.

Defendant maintains that, just as the truck was abreast of plaintiff, she, seeing that she might not clear the front end of the locomotive if she continued on her course straight ahead, suddenly darted to her left in an effort to pass, and, in doing so, ran into the right side of the truck, after the front end thereof had already passed her.

The district judge felt that defendant’s chauffeur was entirely to blame for the accident and rendered judgment in favor of plaintiff for $1,000. Defendant has appealed.

The evidence leaves no room for doubt that plaintiff either veered or'ran slightly to her left just as the automobile was abreast of her, and that, had she not done so, there would have been no accident. But it also convinces us that the driver of the truck saw plaintiff; that he realized that she was endeavoring to do just what he himself proposed—to “beat the train” across. He should have realized that, as the train was approaching from the right, and as there was danger of plaintiff’s veering to the left, just as she did do, an emergency might be created. Therefore, as he was approaching from plaintiff’s rear, he should have moderated his speed to an extent which would have made it possible for him to stop immediately, and should have given warning of his approach.

It was to eliminate the danger of just such situations that the Legislature of this state included in Act No. 120 of 1921 (Ex. Sess.) section 17 thereof. The pertinent portion of that section reads as follows:

"Upon approaching any pedestrian who is upon the traveled portion of any highway or road * * * every person operating a motor vehicle shall slow down and give a timely signal with his gong or other device for signaling. * * *”

In Kelly v. Ludlum, 9 La. App. 57, 118 So. 781, a case involving facts strikingly similar, the Court of Appeal for the Second Circuit held defendant liable, although in that case defendant’s chauffeur actually gave the warning signal required by the statute to which we have referred. The facts of that case, as stated by the court, were so similar to those presented here that we shall quote them as stated in the opinion:

“Plaintiff, B. E. Kelly, while walking along the highway in the daytime, was struck and injured by an automobile which approached from his rear, and in this action, brought against the owner of the automobile, J. W. Ludlum (who was riding in the automobile, which was at the time being driven by his chauffeur) to recover damages, judgment was rendered rejecting plaintiff’s demands, from which he appeals.
“The evidence establishes' that plaintiff was walking along the right side of the roadway and that the automobile was being driven on the same side in such relative position to that of plaintiff that, if each had continued their courses without deviation the automobile would have passed plaintiff by a margin of about lVz feet, and that the driver of the automobile sounded the horn as the automobile approached (of which plaintiff did not take any apparent notice and which he claims not to have heard) but did not change the course of the automobile until about the moment of the collision, when plaintiff deviated from his course about 2 feet, thus placing himself in front of the automobile, when the driver of the automobile vainly attempted to avoid striking him by changing its course.”

In Baquie v. Meraux, 11 La. App. 368, 123 So. 338, 339, is found another case involving the legal principles now under consideration, and in that case we said:

“When the driver of an automobile sees four pedestrians walking along the highway in front of him, it is his duty to take extraordinary care to prevent injuring them, and he must take reasonable precautions to make certain that the pedestrians are aware of his approach. The duty of care rests more heavily upon the motorist than the pedestrian. The degree of care necessary to be exercised must be commensurate with the danger involved.”

In Berry on Automobiles, Sixth Edition, vol. 1, page 293, appears the following:

“The rule of reasonable precaution which the law enjoins upon a driver of an automobile upon a public highway includes the necessity of • making certain that foot passengers are aware of the rearward approach of the vehicle; that the vehicle itself is at such a distance from the pedestrian as to avoid running over him in his sudden panic from surprise at knowledge of its unexpected approach; and finally, that the vehicle is under such control as that it may be stopped promptly.”

Since the accident in this case happened in what may be termed the open country, it may be of interest to note that we have discussed the relative rights of automobile drivers and pedestrians in such localities, and that in this connection, in Jacoby et ux. v. Gallaher, 10 La. App. 43, 120 So. 888, 889, we said:

"In the country the public roadway is shared by vehicles and pedestrians, and there is no impropriety, nor is there any negligence implied, in the practice of country residents' walking along the side of the road. The highway is intended for their use as well as for the use of automobiles. Consequently, when a motorist observes pedestrians on the roadway, he must be careful not to injure them. It is his duty to give warning of his approach and to keep his automobile under control. This is true, in tbe case of adults, but in the case of children extraordinary precaution is necessary.”

The various cases to which our attention is called by defendant’s counsel do not appear to us to be in point, since practically all of them grew out of accidents in which the injured parties stepped from a sidewalk alongside a city street into the roadway and into the path of approaching automobiles. We do not think such situations are analogous to the one presented here.

Defendant’s driver was guilty of negligence in not sounding his horn and in approaching plaintiff from the rear at too great a speed, and that negligence was the proximate cause of the accident. Defendant is liable.

We feel, however, that the amount awarded is in excess of what is justified by the extent of the injuries sustained. No good purpose can be served by an extended discussion of the various cases involving similar injuries. We are1 convinced that nothing more than brush burns and temporary bruises were sustained by plaintiff, and that the period of disability was very slight. For such injuries we think $350 ample.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended by reducing the amount thereof to the sum of $350, and, as thus amended, it is affirmed; plaintiff and appellee to pay costs of appeal.


author: CAGE, Judge ad hoc.

text:
    No. 13,486
    Orleans
    FEDERAL SCHOOLS, INC., v. KUNTZ
    (April 13, 1931. Opinion and Decree.)
    Jos. A. Casey, of New Orleans, attorney for plaintiff, appellant.
    W. J. & H. W. Waguespaek, of New Orleans, attorneys for defendant, appellee.
   CAGE, Judge ad hoc.

Plaintiff is a foreign corporation engaged in the business of selling correspondence courses in various branches of education. In the course of its business it contracted with a young lady, Miss Geis, domiciled in New Orleans, for the sale and delivery to her of one of the said courses, and the said contract was guaranteed on behalf of Miss Geis by the present defendant, Emma Kuntz. Plaintiff sues Miss Kuntz, the guarantor, for the sum of $150, claimed to be due under the contract. Defendant filed an exception of no cause of action, which, in the court below, was referred to the merits. We do not understand the effect of an order referring to the merits an exception of no cause of action. Such an exception should be tried on the pleadings, and judgment thereon should not be reserved until the evidence is introduced. After trial on the merits the exception was sustained and the suit dismissed.

The matter is now before us on appeal from that judgment.

The exception of no cause of action is based on several grounds:

First, that the plaintiff is a foreign corporation and has not complied with the Louisiana statutes with reference to foreign corporations doing business in this state;

Second, that the contract sued on is an absolute nullity, since one of the principals is a minor;

Third, that plaintiff has discharged the guarantor from liability by extending the time for payment;

Fourth, that there is no allegation in the petition showing a delivery or -tender of delivery of the educational course which forms the basis of the suit.

With reference to the first ground of the exception, it appears to us that a complete answer- to the contention of ex-ceptor is found in the matter of Thos. Cusack Co. v. Ford, 138 La. 1096, 71 So. 196, in which our Supreme Court has said that failure of a foreign corporation to comply with the state requirements, before doing business in the state (Act No. 267 of 1914, sec. 23, as amended by Act No. 120 of 1920, sec. 1) does/ not affect the nullity or unenforceability of the contract, but merely subjects the foreign corporation to the penalties mentioned in the statute (Act No. 267 of 1914, sec. 24).

As to the second ground of the exception, it is true that the young lady who agreed to purchase the correspondence course was a minor and that, therefore, the contract could not be enforced as against her, but this in no way affects the liability of the guarantor of full age, for - article 3036 of the Civil Code provides:

“Suretyship can only be given for the performance of valid contracts. A man may, however, become surety for an obligation of which the principal debtor might get a discharge by an exception merely personal to him; such as that of being a minor, or a married woman.”

As to the third ground, there is nothing in the pleadings, nor do we find anything in the evidence, on which this, contention can be sustained. Apparently, all that plaintiff did was to delay a rather long time in bringing suit, but no harm can be said to have come to the surety therefrom, and “mere inaction on the part of the creditor does not discharge the surety.” Pharr v. McHugh & Vinson et al., 32 La. Ann. 1280. See, also, Hill v. Bourcier & Pond, 29 La. Ann. 844, and Purdy v. For-stall, 45 La. Ann. 814, 13 So. 95.

The fourth ground, that there is no allegation in the petition showing that the course was delivered or was tendered, seems to be well founded, and on this ground the exception was properly maintained; but it should have been maintained with leave to amend, because the failure to allege delivery, or tender of delivery of the goods sold, was plainly an oversight on the part of plaintiff and was such an oversight as could be cured by amendment. Cazeaux v. New Orleans Public Service, Inc., 14 La. App. 320, 124 So. 685; Francis v. Barbazon, 10 La. App. 55, 120 So. 427; Blake v. Jefferson-St. Charles Trans. Co., 8 La. App. 310; Southern Iron & Equipment Co. v. Cardwell Stave Co., 154 La. 109, 97 So. 332; James v. City of New Orleans, 151 La. 480, 91 So. 846.

It is our opinion that the suit should not have been dismissed on the exceptions, but that an opportunity should have been afforded plaintiff to amend its petition, so as to allege affirmatively whether or not the course sold had been delivered, or tendered.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that the matter be and it is remanded to the First City Court of New Orleans, with instructions to permit plaintiff to amend in the particulars referred to, and for further proceedings according to law, and not inconsistent with the views herein expressed.

WESTERFIELD, J., absent, takes 3io part.


author: TALIAFERRO, J.

text:
    No. 3429
    Second Circuit (Second Division)
    WILLIAMS v. BREAZEALE-HYAMS MOTORS, INC.
    (May 7, 1931. Opinion and Decree.)
    Jas. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellee.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellant.
   TALIAFERRO, J.

Plaintiff alleges that in the months of April and May, 1928, he sold and delivered to defendant lumber and building material at an agreed price, the total amounting to $252.96, and, said indebtedness not having been paid, after amicable demand, this suit was instituted to recover judgment therefor, with legal interest from May 5, 1928.

Defendant admits the purchase of the lumber and material from plaintiff at the price alleged, but avers that plaintiff is indebted unto it to the extent of $7.50 for labor on his car and material sold him, and further avers that on the verbal order of plaintiff they delivered to one Robert Harrison, a colored man, certain truck casings or tires, as shown by copy of bill attached, amounting to $114, for which plaintiff stood responsible, which amounts defendant pleads in compensation and set-off against the admitted indebtedness due plaintiff, leaving a balance of $131.36.

Defendant avers that this balance was offered to plaintiff, but was declined. On the date this suit was filed defendant deposited in the registry of the court, $137.56, which includes interest on the admitted balance, and accrued court costs to that time.

Defendant prays that said deposit be accepted as to the total amount due to plaintiff, and that his demand otherwise be rejected with costs.

Since defendant admits owing plaintiff the amount sued for, and plaintiff admits owing defendant $7.50 for labor on his car, there remains only one issue of fact to be determined; and that is whether under 'the evidence plaintiff can be held responsible as a principal for the price of the casings and tubes delivered to Robert Harrison, amounting to $114.

On February 21, 1928, the date these goods were delivered to Harrison, he was engaged in hauling logs to plaintiff’s sawmill. Desiring to equip an extra truck with needed casings, he sent his young son, around fifteen years of age, to plaintiff with the request that he arrange for the casings to be delivered to him. Plaintiff testified that the boy only mentioned one casing and that he phoned to defendant asking if Harrison could get the casing and was answered in the affirmative by Mr. Yern Breazeale, an officer of the company; that this ’phone conversation took place while the boy was present-at plaintiff’s mill several miles out of the city of Natchitoches. The boy proceeded to defendant’s place of business and made known his desire for the casings, adding three tubes. Mr. Breazeale testified that after the boy told him that the casings were wanted by his rather, he was called by plaintiff on the ’phone, and that plaintiff stated that he would stand responsible for the price of the casings; that this was before the goods were delivered to Harrison’s son. Plaintiff denies emphatically that he obligated himself in any respect to be responsible for the price of these goods.

This Harrison boy when first asked if he heard what plaintiff said to Mr. Breazeale when talking to him on the ’phone, replied: “I don’t recollect.” He afterwards stated that plaintiff said “Robert Harrison wanted them (the casings) and that he would be responsible for them."'

This boy seems to have been responsible for the inclusion of the tubes in the transaction involving the sale of the casings. His father stated that he sent the boy for casings. Mr. Williams, the plaintiff, testified that the boy only mentioned one casing, and Mr. Breazeale testified that plaintiff agreed to be responsible for the price of the casings. The tubes are not mentioned in connection with plaintiff’s alleged agreement to stand good for the price of the other goods.

Plaintiff testified that he had only one conversation with defendant about this matter and that was through Mr. Vern Breazeale, while this boy was present, while Mr. Breazeale testified that he only talked on the ’phone ’ with plaintiff once about the casings and that was after the boy had arrived at defendant’s place of business. ■

Mr. Breazeale stated that Richard Harrison’s account with his firm had been closed, except for very small amounts, and that he would not have credited him with the ’ price of these goods, but for plaintiff’s promise to be responsible therefor. It is shown that plaintiff ha.d on another occasion stood good with defendant for casings purchased by Harrison to the amount of sixty dollars.

Richard Harrison knew nothing personally regarding the conversations between plaintiff and defendant touching the sale and delivery of the casings and tubes as he was many miles away in the woods hauling logs at the time.

The negro boy is the only witness who has any personal knowledge of the exchange of conversation between plaintiff and defendant bearing on the matter, except the litigants themselves, and he contradicted himself on a material point, about which he should have been certain.

The casings and tubes were charged to Harrison and a copy of the invoice sent to plaintiff about 'March 1st, after the sale.

Prom the record, we are not able to determine whether the lower court, in deciding the case, held that the evidence did not preponderate in favor of defendant on the issue of fact, or whether judgment turned on the question of law involved, admitting that the facts were with defendant. Defendant’s demand against plaintiff on account of the price of casings and tubes was rejected, save for $50,' which’ plaintiff admitted, while testifying, that Richard Harrison had left with him for defendant’s account.

We do not believe the evidence on part of defendant establishes that plaintiff bound himself as principal to pay the price of the casings and tubes. To hold him for the payment of that account, we would necessarily have to reach the conclusion that he did so bind himself. If he simply went surety for Harrison in this respect, parol testimony was not competent to prove such agreement.

,Mr. Vern Breazeale testified, in one place, that plaintiff stated “he would be responsible for it”; in another place he stated that the goods “were sold on plaintiff’s o. k.”, while in another place, he says “the goods were charged to Harrison’s account, approved by Williams, on the phone.”

The most that can be said of this evidence is that it tends to establish the capacity of surety on part of the plaintiff. It does not show a primary obligation against • him.

It is possible for two persons to be bound as principals for the same debt, but the intent to bring about such relation should unmistakably appear from the evidence.

In Watson Bros. v. Jones, 125 La. 249, 51 So. 187, the court said:

“The allégations that A. made a contract with B. to the effect that B. should sell, and let C. (a tenant of A.’s) have, goods and supplies, and that A. should pay for them, does not set up a promise to pay the debt of a third person, since two persons may be bound, as principals, for the same debt; and hence parol evidence is admissible, in a suit against A., to prove the contract as alleged.
“If, however, it should appear from the evidence so admitted, that A. was to pay for the goods only in the event that C. did not, the evidence would have to be disregarded, since, in that case, it would establish, as against A., an obligation to pay the debt of another, and parol evidence can neither be admitted nor considered, if admitted, for that purpose.”

Graves v. Scott & Baer, 23 La. Ann. 692; Levy & Dieter v. DuBois, Lowe & Foley, 24 La. Ann. 398; B. P. Braud, Inc., v. Beardslee, 1 La. App. 623.

The District judge gave plaintiff judgment for $292.86, less a credit of $50 collected by a plaintiff from Robert Harrison, and less a further credit of $7.50 due on open account. In our opinion, this judgment is correct, 'and it is hereby affirmed, at appellant’s cost.


text:
    No. 4017
    Second Circuit (Second Division)
    ANDERSON v. LOUISIANA OIL REFG. CORP.
    (May 7, 1931. Opinion and Decree.)
    William C. Boone, of Homer, attorney for plaintiff, • appellee.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff instituted this suit against defendant to recover compensation for 400 weeks at the rate of $20 per week, and for $250 for physicians’ and hospital bills and medical expenses, etc.

It is alleged by plaintiff thát on or about February 27, 1930, while in the employ of defendant as an ordinary laborer or “roustabout” and while performing duties and services arising out of and incident to said émployment, he was so seriously' and permanently injured that he is now, and will forever be, incapacitated to do any work or labor of reasonable character whatsoever; that he was injured in the act of cranking an “idler” or belt tightener of a power plant of defendant in the oil field of Claiborne parish; that while in the apt of manipulating by physical, power the lever or crank by which thi idler is set in motion he dislocated several joints of his backbone; wrenched his back and spine, twisted, sprained, and strained his hips and pelvic bones, and in other respects sustained serious injury in and about the lumbar region of his body, including, possibly, traumatic arthritis of the left sacroiliac.' joint; all of -which injuries have caused his.back' and-body to be drawn and twisted, accompanied by much pain and anguish.

Plaintiff alleges that at the time of said injury he was working seven days of the week and receiving $4.50 per day for his labor.

Defendant’s answer to the suit is a general denial, save an admission that plaintiff was working for it at the time and receiving wages as alleged by him. Its contention is that plaintiff is not suffering from an injury resulting from an accident arising out of and in the course of his employment.

There was judgment for plaintiff for the entire amount sued for.

The evidence shows that on February 27, 1930, plaintiff and three others, constituting a working squad, was engaged in repairing a belt of a power plant of defendant, and that plaintiff was cranking .the “idler” or belt tightener, which required considerable physical effort if .done in the manner he was doing it at the time; that to manipulate this mechanism, as was being done, it is necessary for the operator to assume a stooping position, such as is done in cranking an automobile; that after the “idler” had made one or two revolutions plaintiff Stood erect, stating that he had hurt himself, and immediately retired from the scene.

Plaintiff admits that after the accident he went to his home- for dinner and returned to his work for the evening, and that he continued to do light work for defendant for several days thereafter. Defendant’s records show that ■ plaintiff worked, and received pay, for the period from March 1st to March 28th, inclusive, and for the last three days of April- at 'which time he was laid off because" of an order to reduce the working force. He did hot report his injury to his foreman, Mr. Barnes, until after March 2'5th. He was then taken by this foreman to see defendant’s physician, Dr. Campbell, in Homer.

Prior to February 27th plaintiff was a strong, robust, vigorous man, able to perform the heavy work exacted of a laborer ■in -the oil- fields, and very soon, if' not immediately, thereafter a change in his physical condition developed, causing him to become - stooped and to walk irregularly and to- one side. He is thirty-two years old. He testified that after the injury -on February 27th- his physical condition began to decline until his body became, twisted and stooped, making it virtually impossible for him to stand erect or to reach to the ground without considerable effort accompanied by severe pain. There' is very' little evidence in' the record to traverse this statement, but there is considerable corroborative testimony to support it. He consulted several physicians about 'his condition, some of whom treated him, without beneficial results, and, on the advice of one of more of them, he had two teeth extracted and his tonsils removed, but without 'any noticeable relief.

Ten physicians, some of whom are X-ray experts, and all of whom at different times examined plaintiff physically, testified on the - trial of the case-; six on ■ behalf of plaintiff and four for -defendant.- In some respects there is difference of opinion- between some of these doctors, hut a majority of them agree as to plaintiff’s trouble. All who expressed an opinion- stated that plaintiff’s condition had become worse for not having received proper treatment immediately after the accident; that a strain of the sacroiliac joint usually should be cured within a month or two, if properly treated and the patient made to rest; that plaintiff’s condition at the date of the trial was such that he could not perform manual labor. All but one' of these physicians gave the opinion that plaintiff’s case was not hopeless and that he should recover if he would submit to treatment by competent physicians.

The superior weight of the testimony of these physicians establishes that plaintiff has . suffered á strain of the sacroiliac joint; that infection set up after this strain, and complications arose in that region of the body, prolonging the disease and rendering plaintiff’s condition worse; that this strain could have been caused by the physical effort plaintiff exerted in the manner and at the time he claims to have been injured.

Defendant’s counsel contend that plaintiff has not discharged the burden of proof required of him; and that the evidence does not establish that the injury to plaintiff was the result of accident arising out of and in the course of his employment to defendant.

We are of the opinion that the evidence does establish with legal certainty that plaintiff’s condition is traceable to a strain sustained by him on February 27, 1930, while in the employ of defendant. His co-laborers corroborate his evidence as to what was said and done at the time he claims to have been hurt. He alone could give evidence as to any disturbance or rupture within his body at the time as a result of the physical strain upon him. It is not shown that any serious injury befell plaintiff prior to the date of the alleged accident to him, nor is it shown that he was injured in any manner after that time. It is shown conclusively that at the date of the alleged accident he was a very strong, vigorous man, and that immediately thereafter he began to decline physically.

It is probably true that plaintiff’s continued disability has been contributed to by diseases independent of, or possibly connected with, the original injury, causing prolongation of the ailment and slowness of recovery. However, even if such be true, the right to recover compensation would not be unfavorably affected thereby.

It is not necessary, in order to recover under the Employers’ Liability Act, that the continued disability directly resulted from the injury. It is sufficient if the disability be the result of a condition arising from the injury, or that the injury be a contributing cause of the disability.

The case of Blackman v. Hope Engineering & Supply Co., 11 La. App. 92, 120 So. 682, is almost identical with the case at bar as to the facts.

The syllabus of that case, in part, reads:

“In compensation case under Employers’ Liability Act (Act No. 20 of 1914), it is immaterial whether employee’s continued disability directly resulted from the injury or from a condition resulting from the injury, or whether the injury was the sole cause, or merely a contributing cause.”

The district judge resolved the issue of fact in the case in favor of plaintiff, and after a careful study of the evidence we are of the opinion he decided correctly.

Plaintiff has asked us to hold that -this appeal is frivolous and to penalize defendant therefor.

When the evidence is conflicting, and only questions of fact are involved, damages will not be allowed; nor will damages be allowed unless appeal is clearly for delay and appellant has no faith in the merits of his case.

Austin v. Moore, 16 La. Ann. 218; Silberberg v. Kalil, 159 La. 560, 105 So. 620; Southern Coal Co. v. Sundberry, 158 La. 386, 104 So. 124.

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


author: MOUTO'N, J.

text:
    No. 797
    First Circuit
    COBB v. LONG BELL LUMBER CO.
    (May 5, 1931. Opinion and Decree.)
    Hawkins & Pickrell, of Lake Charles, attorneys for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   MOUTO'N, J.

Plaintiff, who. was running a blacksmith shop in Deridder fully equipped to shoe horses and mules, entered into a contract with defendant ¿company to have its mules shod. It was agreed that the shoeing of the mules would be done by plaintiff at the barn of defendant company, in consideration of the offer that plaintiff would get a regular job to shoe all of its mules. Plaintiff went in his conveyance to the barn, and carried with him the nails, shoes, hammers and aprons necessary to do the shoeing.

It is shown that he was doing the work for the same price he was charging at his shop to his customers for similar services. It was usually at the noon hour that he .was engaged in shoeing at the barn. He agreed to this as a concession for the regular work he was to have from the defendant company. When not so engaged there, plaintiff ran his shop in Deridder, and shod horses and mules for his customers. His shop was open to the general public for services in his line of business. Counsel for plaintiff points to the fact that, under the agreement, plaintiff was required upon order or notice to respond, leave his work at the shop, if necessary, and go to the barn to attend to the shoeing of defendant’s mules. This condition of the contract was also evidently acceded to by plaintiff in consideration of the regular work he was obtaining from defendant company and which probably was an advantage that did not accrue to him in the irregular business which came to him at his shop from the general public. His agreement to go to the barn was a mere preference which was accorded defendant over the other customers, and which did not change the nature of the contract, as plaintiff continued to operate his shop, and merely modified his relation to his other customers in so far only as he was required to give first attention to the calls by defendant company.

Counsel for plaintiff refers to the circumstance that in shoeing the mules he was required by the foreman of defendant not' to put calk toes on the shoes, as they would wear off on the tram where the mules were used. This requirement might have been made by any of the ordinary customers' of the plaintiff, and doubtless would have been complied with. Counsel refers to another instance where plaintiff cut a corn off the foot of one of the mules in compliance with the direction of the foreman of the company. , Such a demand could have equally been made by any other .to whom plaintiff might have been rendering his services, and which, would. not have changed the contractual relations between them so as to have constituted plaintiff an employee. . .

The requirements in the instances above referred to, with which plaintiff complied, were merely incidental to his work, and 'cannot possibly be characterized as acts of supervision or control over the work cr services of plaintiff under his contractual ‘relations with defendant company.

Though plaintiff had given preference to defendant’s work, as before explained, he still remained- in his individual independent business of shoeing horses and mules at his blacksmith shop. It may be that the preference1 so granted in his contract with • defendant might have caused displeasure to Ms other customers and a falling off in his trade; such a consequence, however, could not affect the character of his contract with defendant company.

Such a contract might be made with a tinner or plumber, with preference given by the latter to one customer over other customers on account of the quality or quantity of work proffered to be performed in their usual lines of business. These independent tradesmen could not, under ‘such an agreement, be considered as employees within the intendment of the compensation statute.

As we read the statute, the same reasoning leads us to a similar conclusion in the case at bar.

Counsel for plaintiff refers us to section 3, par. 8, Act No. 85 of 1926, p. 113 amendment to the Employers’ Liability Act, which defines an “independent contractor,” as follows:

“The term ‘independent contractor’ shall 'be considered to mean, for the purpose of this act, any iperson who renders' service,' other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished.”

Prom the foregoing excerpt counsel for plaintiff reasons out that any one who performs manual labor is an employee and cannot be an “independent contractor.”

Pew contractors, it is safe to say, engaged in their usual trades or pursuits, do not at some time or other render some service in the • way of manual labor, in carrying out their contracts. If what counsel is • contending for be made an unqualified or absolute test, independent contractors would rarely if ever come up for consideration in suits of this character.

In the section of the statute, above reproduced, it will be noted that it refers to a person rendering “service * * * as a unit or a whole.”

In passing on this feature of the statute, the district judge, in his written opinion, found that the furnishing of the materials, in the instant case, should he considered services within the meaning of the statute, and should not be excluded from the definition of independent contractor.

It is shown that Mr. Anders, who was foreman of the barn and who notified plaintiff when he was needed, called him only when it was necessary to shoe the mules, and knew absolutely nothing about shoeing horses. It is therefore apparent that defendant company exercised no control whatsoever “as to the means” by which the result of plaintiff’s work was accomplished which is reprobated in the section above referred to.

The fact" is that defendant company exercised no supervision or control over the work of the plaintiff, except in so far as to “result only,” which was not in the least inimical or incompatible with the definition of an independent contractor, as defined in the statute.

It also appears that plaintiff was paid on monthly invoices sent defendant company, and was not carried on the pay roll, a fact to be noted in connection with an affidavit made by Smith, superintendent of defendant company, in reference to an accident insurance policy.

. In the affidavit, Smith made the statement that plaintiff was in the employ of defendant company. Counsel for plaintiff concludes from this statement of the superintendent in the affidavit that defendant company considered plaintiff an “employee.” •

■The fact that the company never carried plaintiff’s ■ name on the pay roll is significant in reference to the light in which the company regarded the nature of his - contract under which he was. paid on his monthly invoices. The fact that the superintendent of the company took upon himself to refer to plaintiff as being in its employ for . the purpose of assisting him' in making a collection on an insurance policy, cannot be_ accepted as a construction of the contract as .contended for by plaintiff, and which at no time has been so interpreted by defendant as far as the record discloses.

. It is. appropriate in connection with the foregoing contention to refer to what we said in the -case of Johnson v. Vincennes Bridge Co., 9 La. App. 173, 119 So. 539, and which was subsequently approved in Id., Johnson v. Vincennes Bridge Co., 167 La. 107, 118 So. 820.

In that case we held that plaintiff was an independent contractor; that the nature of his contract had fixed legal essentials, and neither of the parties could control its legal effects. Being made, the law alone could control its results, in which decision we referred to several authorities on that question.

Here, likewise, plaintiff is an independent contractor, his contract had fixed legal essentials, and neither- party could control its legal effects. As such was the situation herein, after the contract had befen entered into and existed when the superintendent undertook to denominate plaintiff an employee of the company, even if he intended to so recognize him, his purpose would have been futile, as he could not possibly change the fixed legal characteristics of the agreement by which plaintiff was constituted an independent contractor.

Counsel for plaintiff refers to a number of decisions of the Courts of Appeal and of the Supreme Court. Some of these cases we had occasion to struggle with at various times in applying the compensation statute. These various cases present a state of facts different in many essential respects from those which appear in 'this record. None of the decisions referred to are determinative of the contentions here, and we have therefore found it unnecessary to refer to them in the conclusions we have reached herein.

We find, for the reasons stated, that plaintiff was not an employee of defendant company within the terms of the statute, but was an independent contractor; that he cannot therefore recover compensation for the loss of an eye which resulted from the clipping of a nail while shoeing a mule for defendant company.

The demand was properly rejected.


text:
    No. 4008
    Second Circuit (Second Division)
    DANZY v. CROWELL & SPENCER LBR. CO., LTD.
    (May 7, 1931. Opinion and Decree.)
    Fern M. Wood, of Leesville, attorney for plaintiff, appellee.
    Thornton, Gist '& Richey, of Alexandria, attorneys for defendant, appellant.
   CULPEPPER, J.

Plaintiff sued under the Employers’ Liability law of Louisiana (Act No. 20 of 1914 as amended) to recover of defendant compensation in the sum of $13.65 per week for a period of 400 weeks, beginning November 13, 1930, with legal interest upon all past-due weekly installments. For cause of action plaintiff alleges he suffered an accidental injury on the 18th day of November, 1930, resulting in producing a 'hernia on his left side, while in the course of employment by defendant in the capacity of log cutter for defendant at or near Hutton, in the parish of Natchitoches.

From a judgment in plaintiff’s favor for compensation in the sum of $6.75 per week for 400 weeks, defendant prosecutes this appeal.

Plaintiff alleges that, while engaged at work as above set forth, on said 18th day of November, 1930, he was sawing .down a tree, and his “saw became jammed, straining your petitioner, and thus producing a hernia on the left side.” He alleges the injury is permanent, and that he is totally and permanently unable to do work of any reasonable character, and is entitled to compensation during disability not to exceed 400 weeks. He alleges he was receiving $3.50 a day, or a weekly sum of $21, at the time of the injury, 65 per cent of which is equivalent to the sum of $13.-65, the sum sued for per week.

Defendant in answer admits plaintiff was in its employ on the date of the alleged injury, but denies the injury alleged; denies plaintiff’s wages amounted to the sum alleged, but avers that plaintiff was being paid not exceeding $2.03 per day at the time; that due to business depression defendant was operating its logging business only 3 days each week at the time of the alleged injury, and as a result plaintiff was being employed for only 3 days per week, as a regular schedule of employment; that, if plaintiff is entitled to any compensation, which is denied, the amount of compensation should be based upon a daily wage of not exceeding $2.03 per day for not exceeding 3 days to the week, or a total weekly wage of $6.09; that 65 per cent of this ■ sum would amount to only $3.95. Defendant, accordingly, prays that plaintiff’s demands be rejected, and in the alternative, if the court should give compensation, same should not exceed $3.95 per week.

MERITS

The evidence shows without doubt that plaintiff has hernia. Plaintiff testified that on November 12, 1930, he and his partner, under orders of the log scaler, were trying to put a small pole across the railroad track, to protect the track from some trees to be felled upon the track; that the pole turned, as he expressed it, and jerked him and hurt him in his left side; that he complained at the time to his partner, but continued to work the remainder of that day; that his employer did not work him any more until the following Monday, which was the 18th, on which day he was engaged in sawing down a tree; that he was standing in a “strain,’’ and as the tree fell the saw became hung or jammed and he jerked it, and then it was that the hernia developed. He says it made him sick for a few minutes. His testimony regarding the two incidents and the resulting injury is corroborated by Steve Cedars, who was. plaintiff’s saw partner working with him at the time; also by some other witnesses who were near the scene, some one of whom drove plaintiff in a car home and to Dr. Burham for medical attention. The doctor immediately diagnosed the injury as hernia and secured a trusa for1 plaintiff to wear. Under advice of the doctor, plaintiff is still wearing the truss. Dr. Burham testified that it is a mild, slight hernia, about the size of one finger. He says he advised an operation. But it seems plaintiff would not agree 'to it, and contented himself with wearing the truss. When asked if the man could do ordinary work, Dr. Burham says to give him 60 or 90 days’ rest he could, as “most injuries, would get well in that time, taking it for granted a hernia would get well.’’ The doctor says, if plaintiff would take another month’s rest, he could work.

Dr. Phelps, who examined plaintiff on the day of the trial, testified he could not tell as to how old the hernia was, nor whether it was traumatic or not. He says he is of the opinion that, if plaintiff should remove the truss, the bowel would go ■ down into the scrotum, as the “ring” is large enough to permit it to do so. Dr. Phelps was not asked for an opinion as to whether plaintiff was able to work.

Defendant contends that the hernia was of long standing, and that the injury, if any, had nothing to do with it. We think from the- evidence in the case it is fair to conclude that, even if plaintiff did have hernia in process of development, and that is not definitely shown, the injury was sufficient to, and did, quicken and accelerate the development. It is well settled that, where an injury accelerates and hastens the development of a disease in process of development, the injured person is entitled to relief.

Up to the date of trial, which was near two fnonths after the injury, plaintiff had not recovered, neither is it shown conclusively that he was at that time able to do work of a reasonable character. He still needed complete rest for at least 30 days. Much weight should be given to the conclusions of the trial judge in such matters, and, as. he found plaintiff to be disabled at the time, we cannot, under the evidence, say the judge was in error. We think plaintiff did in fact suffer an injury on or about the date alleged, and while in the course of his employment, and from that injury he was and still is disabled from doing work of any reasonable nature. Just how long, the disability will continue we cannot tell.

As to the amount of compensation allowed, we cannot agree with the trial judge. It • seems that neither counsel for plaintiff nor, defendant knows, upon just what basis the judge arrived at the amount of compensation granted. Plaintiff was being paid by the thousand feet for cutting logs. He was not being paid a flat daily wage. In the case of Boyett v. Urania Lbr. Co., Ltd., 8 La. App. 132, cited by counsel-for defendant, the court held that: “ ‘Daily rate of pay’ means one-sixth of the average weekly earnings of the employee during a six-day week and that the ‘weekly sum’ to which the employee or his dependents are entitled is the specified percentage of an amount equal to six times the ‘daily rate of pay’ so arrived at.” The court, however, in the syllabus inserted by it, says:

“As a general rule six days constitute a working week and will be adopted as such where it is not alleged and proved that a different rule existed.”

The court further sets forth, in its additional syllabus in that case that:

“In arriving at the daily wage of one engaged in felling trees and sawing them into logs at a fixed price per thousand feet, board measure, no definite rule cap. be established, and each case must depend on its ,own particular facts and circumstances.”

The dispute in the Boyett case was as to the daily wage of plaintiff who was engaged in work by tbe “piece,” presumably cutting logs by the thousand feet. He worked 18 days in November, 14 in December, and had worked 6 in January up to his death on the 17th of the last-named month, making a total of 38 days work during those 3 months. He received $134.10 for the 38 days. The lower court divided the $134 by 38, and thus arrived a: the daily wage as being $3.55 per day. The upper court approved of this manner of estimating the compensation. Thus it will be seen that the rule „ of multiplying the daily wage received by 6 in order to find the “weekly sum” does not always apply. It does not apply in cases where defendant alleges and proves that a different rule exists, as in the case of cutting logs by the thousand feet instead of working for a daily wage.

In Smith v. Butler, 7 La. App. 338, cited by counsel, plaintiff was working regularly 5% days a week, and his compensation was based upon the daily rate of pay multiplied by 5% instead of by 6. In Colquette v. Louisiana Central Lbr. Co., 11 La. App. 140, 119 So. 714, plaintiff was working 7 days a week, and his “weekly sum” was found by multiplying his daily wage by 7. We think such a basis for adjustment both legal and just. Suppose a person was employed regularly only one day a week, and received an injury.. Certainly the law does not contemplate that compensation be paid on the basis .of the wage received for the one day multiplied by six. As stated by the court in the Boyett ease, supra, the facts -and circumstances of the employment should, be taken into consideration, and especially where the work is that of cutting logs by the thousand feet, or doing work by the piece.

The testimony shows conclusively that at the time plaintiff received the injury, and for some months previous, and some months after, the logging department of defendant was being operated on a regular schedule of 3 days a week. This was the case when plaintiff accepted employment, and continued down to the time of the accident. It was well understood by plaintiff and all of the other employees. Three work days in a week was all any of the employees were promised, and was all they expected, and all they received pay for. The testimony seems to show that plaintiff’s average daily earnings from fhe work he was engaged in, that of cutting logs by the thousand feet, board measure, was $2.03.

Both plaintiff and his saw partner testified that the two together cut on an average of 16,000 feet. Neither one stated how much they were being paid per 1,000 feet. Mr. Brown, the log scaler, corroborated the statements of these two men, but he made no mention of how much was being paid for the work. Mr. Adams, of the claims department of the insurance company, testified that his office received a written report on the accident; that this report showed that plaintiff’s earnings amounted to $2.03 per day. He made no mention of how much per 1,000 feet the report showed was being paid. ■ Steve Cedars, plaintiff’s co-worker, said that his and plaintiff’s average earnings was about $2 a day. We conclude, therefore, that $2.03 is correct. On the basis of 3 work days a week, the weekly earnings is $6.09, and G5 per cent of that sum is $3.95.

Por the above reasons, the judgment of the lower court is amended so as to reduce the amount, of weekly payments from $6.75 to $3.95 per week, and as thus amended, the judgment is affirmed; cost of appeal to be paid by1 plaintiff.


author: STEPHENS, J.

text:
    No. 3969
    Second Circuit (Second Division)
    GOMOLSKY v. KIHNEMAN
    (May 7, 1931. Opinion and Decree.)
    Wilson & Abramson, of Shreveport, attorneys for plaintiff, appellee.
    L. 'A. Newsom, of Shreveport, attorney for defendant, appellant.
   STEPHENS, J.

The plaintiff sues to recover $282.10 for damages to his automobile resulting from a collision alleged to have been caused by the negligent driving of the defendant. The defendant answered, denying the facts as alleged by the plaintiff and the conclusion drawn therefrom that he was negligent; and, assuming the position of plaintiff in reconvention, alleged that the collision was due solely to the negligence of the plaintiff, and prays for judgment in the sum of $215 for damages to his automobile. •

Judgment was rendered by the erial court in favor of plaintiff in the sum of $132.10, and the defendant appeals. The plaintiff answered the' appeal, and prays that the judgment as rendered be affirmed, but that plaintiff have further judgment for frivolous appeal.

The accident occurred on the northeast corner of the intersection of Caddo and Christian streets in the city of Shreveport. Christian street is unpaved, and- crosses Caddo street at right angles, and is of no interest in this controversy except for the purpose of, fixing the point where the collision occurred. Caddo street, one of the wide paved arteries of traffic leading from the business district of the city, immediately after intersecting Christian street loses its identity by becoming merged into two other streets, namely, Ford street, into which it turns to the right at approximately a forty-five degree angle, and Western avenue, into which it proceeds directly.

On July 15, 1930, shortly after 6 o’clock p. m., the preponderance of the evidence shows that the plaintiff, driving an Essex automobile, approached the scene of the accident from Ford street at a moderate rate of speed. He kept to the right, crossed Western avenue, and was proceeding on Caddo street towards the business district when he met the defendant driving an Oldsmobile sedan in the opposite direction at a rapid rate of speed and on the defendant’s left side of Caddo street. Seeing that a collision was inevitable if he remained in the street, plaintiff drove over the curb to his right, but the defendant swerved to his left. The front of defendant’s automobile struck the plaintiff’s at the left rear fender and turned it over.

The defendant’s contention is that, as he was driving out Caddo street, he saw plain-: tiff’s automobile coming out of Ford street at a high rate of speed on the plaintiff’s left side of said street, and that he veered to the left in order to avoid a collision, and that his automobile was struck by plaintiff’s at a point near the middle of the street.

This theory of the case is not supported by the physical facts, the probabilities, or any evidence except the testimony of the defendant. The defendant admitted an intention of driving directly into Western avenue. In order to drive directly into Western avenue from Caddo street, it is necessary to be about the center of Caddo street, or slightly to the left of the center. We are convinced that what actually occurred was that the defendant did not swerve to the left because plaintiff was on the wrong side of the road, but because it was the most convenient and direct route to take; and that he thought by this movement he would indicate his intention of going into Western avenue instead of Ford street, and that the plaintiff would pass hint on the left. If the defendant had driven to the right the accident would not have occurred.

Defendant was driving at a rate of speed which was not consistent with the care it was his duty to observe at a dangerous, intersection. The speed at which he was driving and his failure to turn to the right was negligence, which negligence was the proximate cause of the accident.

The plaintiff was without fault. Damages for frivolous appeal are not allowed.

There is no disiute as to the amount of damages sustained by plaintiff. The judgment is therefore affirmed.


text:
    No. 3276
    Second Circuit (Second Division)
    WILLIS v. BROWN
    (May 7, 1931. Opinion and Decree.)

      Coleman Lindsey, of Minden, attorney for plaintiff, appellant.
    Murff & Perkins, of Shreveport, attorneys for defendant, appellee.
   STEPHENS, J.

This is a suit on two promissory notes for the principal sum of $55 and $752 respectively. The defendant is sued as the maker of both instruments.

The defendant pleaded payment of the former and the forgery of his/ signature to the latter.

A trial resulted in a judgment in favor of the defendant rejecting plaintiff’s demands, and the plaintiff appeals.

The $55 note is dated April 13, 1922, and became due November 1st of chat year. It was drawn in favor of the Bank of Cotton Valley, and secured by a chattel mortgage on a mule and a cow. The defendant testified that he paid the note when it became due, because he did not want to lose his mule and cow. He stated that he made. the payment to Mr. Cole, the cashier of the Bank of Cotton Valley, but that Mr. Cole would not give 'him the note, assigning for reason that he would hold the note until defendant had straightened out an account with Mr. A. J. Hodges, one of the directors of the bank. The defendant, a negro, further testified that subsequently he settled his obligation to Mr. Hodges in full, the amount being $1,400, but that the note of $55 had never been surrendered to him.

Mr. Cole is now serving a sentence in the penitentiary for various and sundry defalcations in connection with his management of the Bank of Cotton Valley.

The presumption is that a note in the possession of the plaintiff is unpaid, and upon that presumption alone the plaintiff rests his case. The strength of the presumption as it applies to this item sued on is greatly reduced by the age of the note; the fact that it was secured; that the bank which originally held it was liquidated because of unlawful irregularities of the cashier in connection with its management; and that its payment is not denied by any one. The presumption as thus weakened is entirely overcome by the testimony of the defendant, whose reputation for truth, veracity, and fair dealing was not attacked. This note, we think, a fair preponderance of the evidence shows, was paid.

The note for $752 is dated January 12, 1924, and became due October 15, 1924. It is payable to the order of the Bank of Cotton Valley, and appears to be signed by the defendant Robert Brown, C. H. Griffin, J. H. Hutcherson, and J. Moore. The plaintiff reserved his rights to proceed against the defendant’s co-makers.

The plaintiff offered the note in evidence together with two admittedly genuine signatures of the defendant. That is his case. On this item the plaintiff relies on the presumption arising from his possession of the instrument, and upon the court as an expert on handwriting. That the questioned signature is strikingly similar to the admitted signatures cannot be denied, and, if the plaintiff’s evidence was presented for the purpose of obtaining a judgment by default, we would accept the signature on the note sued on as genuine.

The defendant testified that he did not sign the note, and knew nothing about it; that the first he knew of it was when Mr. Hodges called his attention to it some years after its date; that he at that time told Mr. Hodges he knew nothing about it, and refused to pay or renew it. The note is unsecured. He testified that he never at any time owed the hank more than $100, and that it always required security for loans made to him. He denied that he ever had any business dealings whatever with his alleged co-makers on the note, but that he knew them.

If the plaintiff could not produce evidence that the defendant received I he consideration, or some portion of it, for which this note is alleged to have been given, because of the incarceration of the cashier of the hank in the penitentiary, he could have at least produced the testimony of the defendant’s alleged co-makers \o xefute defendant’s testimony that he had never had a business transaction with them. The presumption arising from the plaintiff's failure in this respect is that the testimony, if produced, would have been unfavorable to, him. • ■

If the signature is genuine, and its genuineness is doubtful, due to the facts developed and withheld, it -could have been shown by expert evidence.

The burden of proof is on plaintiff, and we think, as did ..the trial judge, that he has- failed to sustain it. -

The judgment appealed from is therefore affirmed. . .


author: LeBLANC, J.

text:
    No. 750
    First Circuit
    AMITE AUTO CO. v. APPEL (PASSMAN, Intervener)
    (May 5, 1931. Opinion and Decree.)

      H. R. Reid, of Hammond, attorney for plaintiff, appellee.
    Ellis, Ellis & Ellis, of Amite, attorneys for intervener, appellant.
   LeBLANC, J.

C. L. Appel, the defendant herein, was indebted unto the Amite Auto Company, in the sum of $617.75, on an open account. On learning that he had left the state, that company, plaintiff in this proceeding, obtained an order for a writ of attachment from the district court, under which the sheriff seized 2 one and one-half ton Chevrolet trucks and one one and one-half ton Ford truck, which belonged to the defendant. An attorney ad hoc was appointed to represent the absentee defendant, and to have proper service made on him. The latter made no appearance in court, howevert and judgment went by default against the defendant for the full amount sued on.

The seizure under the writ of attachment was made on November 9, 1929, and on January 3, 1930, Delos Passman, claiming that the defendant Appel was indebted unto him ip the sumí of $319.37, being< the unpaid balance of the two Chevrolet trucks which had been seized, intervened in the suit, asserting that he had a vendor’s lien and privilege thereon which was superior to and primed the debt of the plaintiff. He further alleged in his petition of intervention that the plaintiff had had the two' trucks in its possession as keeper and had been illegally using them in hauling gravel and should be made to pay the .sum of $20 daily as rental, and that amount should be credited on the defendant’s account with the plaintiff. He- prayed for recognition of his vendor’s lien and privilege, and that he be paid by preference and priority over all persons out of the proceeds of the sale of the two trucks.

Upon trial of the case', the district court rendered judgment in favor of the plaintiff and against the defendant, maintaining its lien and privilege under the writ of attachment, and dismissed the intervention oi Passman. The latter appealed.

The only question at issue is whether or not the intervener has a vendor’s lien on the two Chevrolet trucks for the amount he claims, or for any amount.

We observe that, in his petition of intervention, the intervener seems to studiously guard himself in his allegation regarding the sale of the trucks to the defendant under which he claims his vendor’s lien. He simply avers that the defendant is indebted unto him in the sum of $319.37, for the balance of the unpaid purchase price due on the trucks, without making any reference whatever to the sale itself. A certified copy of the act of sale offered in evidence, however, shows that the purchase price of the two trucks was $1,954.66, of which amount $723.28 is declared to have been paid “in current money of the United States of America, for which the purchaser is hereby granted full acquittance and discharge.’’ The remainder of the purchase price was divided in six equal installments due in six consecutive months, all represented by a single note, bearing date June 4, 1929, secured by vendor’s lien and chattel mortgage on the property sold. This act, as appears from the certificate indorsed on it, was recorded in the mortgage records of the parish of Tangipahoa where the sale had been, effected, on June 5, 1929. On the date of the seizure of the two trucks, the last two installments remained unpaid. Plaintiff was advised by the Bogalusa Finance Company that it held the note on which these two installments were still outstanding, and paid the finance company the full balance that was due. After this payment the property became free of any liens or incumbrances so far as the records of the mortgage office disclosed.

During the trial of the case, the intervener persistently attempted to show that the cash part of the consideration expressed in the act of sale was not the actual amount which had been paid, and that the defendant was still indebted unto him in the amount claimed in his petition of intervention. The issue then resolved itself, as it goes here, into one of the admissibility of parol testimony on the question of consideration. The. trial judge was called on repeatedly to rule on objections made to the admissibility of the testimony. The record, no doubt because of the almost continual argument of counsel, is far from being satisfactory from the standpoint of being intelligible. Still we understand the purpose of the judge throughout was to exclude all evidence on the question of consideration and restrict the parties to the declaration in the written act of sale. It would seem that his judgment in effect confirms that opinion. We believe such ruling was undoubtedly correct under the very plain provisions of article 2276 of the Revised Civil Code which forbids the admission of parol evidence against or beyond what is contained in written acts, or on what may have been said before or at the time of making them or since.

In face of the express declaration in the act of sale that the full cash payment of $723.28 was made -by the purchaser, the defendant herein, and full acquittance and discharge therefor was. given by the vendor, the intervener, and in the absence of any allegation of error or fraud with regard to the act of sale, we are unable to understand on what ground the latter expected to prove a different consideration or any balance due on the cash payment under which he enjoyed a vendor’s lien and privilege on the trucks. If as against the vendee, it would have been necessary for him to have laid the proper foundation to offer such proof, how more necessary therefore would it have been for him to do so in a proceeding in which the rights of third parties had intervened? Parties are bound by their written acts, which are placed of record when the rights of third parties are concerned, and in this case, when the plaintiff herein paid off the Bogalusa Finance Company which held the only outstanding balance due on the seized property, it did all that it was required to do and thereby satisfied the only vendor’s lien bearing thereon.

Intervener produced a letter written by the defendant in which it is contended he acknowledges that he owes intervener balance on the trucks, which he submits is proof of his vendor’s, lien. Were this letter to be given any consideration, we find that there is nothing in its contents to create a vendor’s lien on the trucks as contended for by intervener’s counsel. In the first place, no specific amount is mentioned as being due the intervener, reference being made to a balance of a little more than $100 being due him and another party referred to as “old man Jack.” Nor is there anything to indicate from its wording that this is a balance remaining due on the purchase price of the trucks. In the second place, binding as it may be between the parties to it, such letter can have no effect as regards third persons who know nothing about it, or its contents.

Intervener’s claim that a rental of $20 per day be charged against the plaintiff for use of the trucks is one which implies ownership and is therefore wholly inconsistent with the demand of his petition of intervention for recognition of his vendor’s lien and privilege, and that he be paid by preference and priority out of the proceeds derived from their sale. Such question might have been raised by the defendant who was still the owner of the trucks, but not by this intervener, in view of the position he ‘has assumed in his petition of intervention.

We believe that the lower court had correctly disposed of all the issues presented in this case, and its judgment is therefore affirmed.


text:
    No. 3430
    Second Circuit (Second Division)
    LEWIS v. SMITH ET AL.
    (May 7, 1931. Opinion and Decree.)
    D. C. Scarborough, of Natchitoches, attorney for plaintiff, appellee.
    J. W. Jones, Jr., of Natchitoches, attorney for defendants, appellants.
   CULPEPPER, J.

This is a petitory action, filed by plaintiff, alleging ownership of a certain tract of land in possession of defendant and situated in the parish of Natchitoches.. The land is. described in plaintiff’s petition, and similarly described in judgment of the lower court, as follows: A lot of ground with all buildings and improvements thereon situated, and described as follows: That certain lot of ground purchased from P. S. Prudhomme, by act dated July 18, 1916,-and recorded in Book 140, page 189, and bounded north by property of Breda, east by property of P. S. Prudhomme, south by Colored Grave Yard, and west by Springville lots; being the same property adjudicated to plaintiff, .Sherman Lewis, by J. J. Payne, sheriff of the parish of Natchitoches;- on the ::3d day of July, 1927, and as further shown by the sheriff’s deed" recorded in Book 159, page 483. .

Defendant-Jeaneavor Lewis Smith, in answer to plaintiff’s petition, denies that plaintiff is the owner of the property as alleged, but alleges that defendant and Theodore Lewis and Taylor Lewis and the heirs of Mrs. William Peyton, deceased,' and the plaintiff in this, suit, are all heirs of G. Grant Lewis, deceased; .that the property in question, together with other property, belonged to their said father,G. Grant Lewis, at his death, and was inherited from him by his above-named heirs; that Taylor Lewis, one of the heirs, was appointed administrator of the estate of said G. Grant Lewis, arid attempted to sell, and did publicly auction in an effort to sell as administrator of the estate of G. Grant Lewis, the property des.cribed in plaintiff’s petition, as well as other properties; that the pretended sale was and is illegal, null, and void and of no effect, and should be so decreed, for the following causes: (Here defendant sets forth various and numerous, alleged grounds why the sale should be declared null, which this court does not deem necessary to relate for the purpose of decision in this case.)

The case was. tried and resulted in a judgment decreeing plaintiff to be the owner of the property in question and as such entitled to possession, and ordering same delivered_ to plaintiff. . .

From a judgment in favor- of plaintiff, defendant' appealed.'

Since neither plaintiff nor defendant has made any appearance before this court by counsel or by .filing briefs, or otherwise, we assume the appeal has been abandoned, especially on the part of appellant, and there is nothing for this court to do but to affirm the judgment of the lower court.

Accordingly, the judgment is affirmed; appellant to pay costs- of both .courts.


author: MOUTON, J.

text:
    No. 778
    First Circuit (Second Division)
    GROUCHY v. GLOBE FURNITURE CO., LTD., INC.
    (May 5, 1931. Opinion and Decree.)

      J. Oliver Bouanchaud, of Baton Rouge, attorney for plaintiff, appellee.
    Chas. A. Holcombe, of Baton Rouge, attorney for defendant, appellant. •

   MOUTON, J.

Judgment was rendered in this case in favor of plaintiff against defendant company for damage suffered by her in a collision between a truck and an automobile which occurred at the intersection of St. Hypolite and North streets in the city of Baton Rouge.

North street runs east and west and St. Hypolite street north and south, thus crossing each other at right angles. At the time of the accident, the auto was running east to west and the truck northward.

Mr. Frank Grouchy, husband of plaintiff, was driving the auto; his wife sitting next to him on the front seat.

The truck was being driven by Clarence Creer, an employee of defendant company. The accident happened during the daytime.

Grouchy says that, when he entered the intersection and immediately before,- he was going at a speed not exceeding twelve miles an hour. His testimony is. that he entered the intersection first; that is, before the truck had reached it. At, about the time Grouchy was entering the intersection, the evidence shows that Messrs. Glack and Daigle, residents of Baton Rouge, were in a car going eastward on North street towards the intersection. It appears, and of which there is no contradiction, that as their car (Daigle was driving) reached the intersection, they slowed down and came practically to a stop to allow the Grouchy auto to negotiate the intersection, as Daigle intended to turn to his left into St. Hypolite street. These two witnesses, not related to either Mr. or Mrs. Grouchy, and in fact who were strangers to them, are certain that, when the Grouchy auto entered the intersection, the truck Creer was driving was at that time about ten feet from the south side of North street. They also estimate the speed of the Grouchy auto at about ten or twelve miles an hour when it was entering the intersection. There is no evidence to contradict the statement of Grouchy, Glack, and Daigle that the former entered the intersection first, and was then traveling at about ten or twelve miles an hour. The speed at which Grouchy was moving was certainly not excessive and showed no negligence in that respect on his part.

Grouchy was traveling on a right of way street, and, as we have before stated, entered the intersection before Creer had reached the southern limit of North street on which Grouchy was- going.

The rule of law which governs cases of this character is that, when two automobiles are approaching an intersection of streets at right angle, the| one entering it first has the right of way, and the other should respect that right, and failure to do so is negligence. Middleton v. Jordan, 10 La. App. 189, 120 So. 668. Even when the other auto has the right of way, the one entering the intersection first has the right to proceed. Marshall v. Freeman, 10 La. App. 12, 120 So. 414. The same doctrine is recognized in Heath v. Baudin, 11 La. App. 40, 122 So. 726.

Here the Grouchy auto had entered first, had also the right of way, and Creer should therefore have either. stopped his truck or slowed down to allow Grouchy to proceed across St. Hypolite, the intersecting street.

According to the testimony of Glack and Daigle, Creer was then going at about twenty-five miles an hour, and, instead of relaxing his speed, seemed to have increased it, and, as it appeared fo them, was trying to pass ahead of the Grouchy car, which was struck by the truck about the center or a little over the center of St. Hypolite street.

Creer, employee of defendant company, denies the truth of the foregoing facts to which the plaintiff and the witnesses, to whom we have referred, have testified. Obviously, the court below gave credence to plaintiff and his witnesses on the issue above discussed, one of the most important in the solution of this contest, and we find nothing in the record to authorize us to question the veracity of those witnesses.

The testimony of Glack and Daigle shows that Creer instead of having his truck under control when he approached the intersection, was in reality moving at an excessive rate of speed.

Mr. Townsend, mechanic for defendant company and testifying for it, said that Creer was driving a slow-speed truck which could not pick up a speed within half a block of more than fifteen miles an hour. The purpose of that expert testimony, we presume, was offered to show that, as the truck had just passed a block southward, it could not have been traveling at twenty-five or thirty miles an hour when it reached the intersection, as was testified to by Glack and Daigle.

Creer says, he was simply creeping or rolling along in his truck when he reached the intersection. This statement of Creer is hardly believable as it is abundantly shown that by the force of the impact the truck was thrown clean across the intersection, was actually turned over, and came to a stop on.the west side of St. Hypolite street; the Grouchy auto took the opposite direction, and came to a stop at the east curbing of the same street.

Counsel for ■ defendant argues, however, that the turning over of the truck indicates that the fast driving was to be attributable to the Grouchy car, a much lighter vehicle. Daigle and Glack, and so does Grouchy, say that, when Creer realized the collision was imminent, he swerved his truck to the left to escape the impact, and that, as it was running at an excessive speed, it lost its balance, and was for that reason turned over by the contact with the lighter car.

Let us say, however, that the truck could not have picked up a faster speed than fifteen miles an hour, as would be implied from the testimony of Mr. Townsend, Creor would have still been at fault, because he should and could have stopped the truck in time to let the Grouchy car negotiate the intersection. Taking the issue presented on this question from either angle, we must hold that Creer was at fault in thus colliding with the Grouchy auto.

The next question presented by counsel for defendant, in a very exhaustive and able-brief is that, even if Creer was at fault, Grouchy was also equally negligent; that, these two drivers being mutually at fault, plaintiff under the well-established rule governing in such contingencies cannot recover.

His contention in this respect is based on the ground that Grouchy, before entering the intersection, saw, could or should have seen the truck in time to stop his auto and avoid the collision. If the evidence justified that conclusion of fact, although Grouchy had the right of way, there would be some basis to support counsel’s contention.

The testimony of Grouchy is clearly to the effect that he did not see-the truck until after he had entered the intersection, and that of Mrs. Grouchy, who was riding at his right, is that she first saw the truck only when it was about running into the auto of which she was an occupant. The evidence of .Grouchy is that, as he came to enter the intersection, he looked south, then north, and south a second time. He did not see the truck when he. first glanced southward on St. Hypolite street, and saw it only the second - time, when he again turned his vision in that direction, but that he had then entered the intersection, tried to stop after he saw the truck, but could not before he was struck.

Grouchy testifies that there is a house on the northeast corner of St. Hypolite street where it is intersected by North street, which is at the distance of eighteen feet from the curb, as shown by actual measurement. In this space, between the curb and the corner of the house, he testifies, there are two large trees, a telegraph pole, and some shrubbery “on the house.” There is no evidence in ’the record to show that these objects were not standing at the place indicated when the accident happened, a statement which could have evidently been easily disproved if that statement by Grouchy was not true. The fact is that other witnesses who were questioned on this subject impliedly corroborated Grouchy’s statement, not, however, with the particularity with which he had referred to these obstructions, which, no doubt, had the effect of interfering with his view when her cast his eyes southward down St. Hypolite street for cars or other vehicles when he approached that street to enter the intersection.

Other witnesses who testified on this question said that, as a driver enters the intersection from North street going westward, the direction Grouchy was traveling, he could, on glancing down St. Hypolite street, southward, see about thirty feet on the west side of St. Hypolite street.

Mr. Anderson, traffic officer, testifies on this subject to the effect, that it would be easier to see a car coming northward on St. Hypolite street if it were traveling on the west side than if it were going on the east side. This testimony, as. the location of this corner is reflected by the evidence, seems to us to be rational, true, and convincing.

It is shown by the testimony of Creer, driver of the truck, that on approaching the intersection he was driving on the east side 'of St. Hypolite street, which it was proper for him to do, as that was. his right side. As he was driving on that side at the time Grouchy was entering the intersection, it is easily understood, taking into account the obstructions at the northeast corner of St. Hypolite street, why Grouchy failed to see the truck. As such were the conditions with which he was confronted, it is. easy to account why it was that he first saw the truck only after he had entered the intersection, when it was too late for him to so manage his auto as to escape the collision. He was therefore not at fault in not seeing the truck as he entered the intersection or before, and cannot be held to the rule that he should have seen it, which in law is the same as when actually seeing.

There was therefore no contributory negligence on the part of Grouchy so as to justify the conclusion, as contended for by counsel for defendant company, that he was equally at fault with Creer, thus precluding plaintiff from recovery.

This brings us to the next question presented by defendant in reference to the imputation of the negligence of the driver to an occupant of a car.

Counsel for defendant contends that the negligence of the husband can be imputed to his wife, and cites Berry on Automobiles (4th Ed.) 550, in support of that contention. The rule in such cases, according to contention of counsel, if we understand it correctly, means that, 'if the guest or occupant of the car could or should have seen the danger in time and failed to apprise the driver, he is, in law, equally negligent with the driver, and cannot recover in case of an accident. This we understand to be the' position taken by counsel. He cites in support of that argument the recent decision in Williams v. Lenfant, 15 La. App. 515, 131 So. 857, 860.

In that case the doctrine is recognized that a guest may be guilty of independent negligence. In discussing the issue therein presented, the court also recognized the rule that the guest or occupant of the car in such cases is not expected to maintain the constant care which is required of the driver. _ The fact is the court said there that it could imagine certain circumstances under which a guest passenger is under no obligation “at all to look out for danger.” The question there, said the court, was not one of looking out for danger, but was one of the duty to warn and caution a driver about a danger which the guest sees and understands.

In this case Mrs. Grouchy testifies that she saw the truck only when it came in contact with the auto and not before. She had certainly not seen the danger, which, under the decision cited, would have made it her duty to convey it to her husband, according to the ruling of the court in tlie case above cited. ■

The general rule is that the guest, not having charge of the operation of the machine, is not required to keep a lookout for danger, but can rely upon the discharge of that duty by the driver, who is responsible for its operation, unless the guest can be charged with negligence of his own. Churchill v. Texas & Pac. Ry. Co., 151 La. 726, 92 So. 314.

In the case of Toups v. M. L. & T. Railroad Co., 4 La. App. 136, the court there held that, when it appeared that the proximate cause of the accident was the failure of both to have seen what each of them should have seen, neither occupant of the car, the .husband or wife, can recover.

As we have before stated, there is no proof showing that the husband should have seen the danger in time to have avoided the collision, and it is equally certain, if not more so, that his wife, who had the right to. rely on-his care in operating the machine, cannot be held to the rule that she should have seen the impending danger.

Counsel for defendant refers to the fact that plaintiff was the ■ owner of the car and controlled its operation. The proof is that she entertained a wholesome -fear of collisions,- and always ■ cautioned her husband to be careful as to speed, etc., in operating the machine. These were merely suggestions dictated by a sense of prudence on her part,' and bespeak no control by her of the management of the auto. Even if she had been driving the auto, it would not be possible to hold that she was at fault in not seeing the truck as they entered the intersection for the reasons we have given in holding that her husband could not be- held to contributory negligence.

Defendant company was therefore properly held liable; the only question meriting attention is as to the amount of damages granted to plaintiff.

Mrs. Grouchy suffered an injury to her ankle of which an X-ray picture was taken as was requested by Dr. Jones, the physician who was first called upon for treatment. The picture taken showed a small fracture of one of the bones uf the ankle. Her foot was put in a plaster of paris cast, where it remained, according to the testimony of Dr. Jones, during a period of about eight or ten weeks. Mrs. Grouchy says for ten weeks. She further testifies that after three months she got out of bed, then during three additional months she had to keep her foot on a chair with a pillow, and thereafter could get around on crutches, which the evidence shows she was still using at the time of the trial some ten months after the date of the collision. She says the pain, while in bed during these three months, was very severe, and that she had to live on aspirins. Such a liberal use of that sedative indicates that her sufferings must have been constant and severe.

Mrs. Grouchy testified that her ankle had not entirely recovered at the time of the trial, and that she was still suffering from the injury. She also stated it was yet impossible for her to walk without a crutch. In that regard she explained that with the weight of her oody on that foot it was then hurting her.

Two physicians, Drs. McKowen and Lorio, testifying as experts for defendant company, gave the court the resul* of their examinations of Mrs. Grouchy’s injured ankle. They said that they thought Mrs. Grouchy had entirely recovered, had the free use of her foot, and seemed to indicate by their testimony that she could, at the time of the trial, have dispensed with the crutch. All the physicians agree that pain is subjective, and is actually known only by the patient. Obviously, every one, layman or physician, knows that physical pain will result from -the breaking of a bone in the foot or from a sprain. It seems, however, that no one except the injured party can testify with certainty as to its intensity or duration. Such being the case here, as in all other instances of that character, we must conclude, with due respect to the learned physicians who testified in the case, that it seems impossible for them to say that the suffering Mrs. 'Grouchy was experiencing in her ankle when the trial was going on was not of such a character as made indispensable the use of a crutch by her at that time. The condition of her ankle might have appeared altogether normal, but the pain concealed there was entirely invisible, and the sensitiveness of the ankle at the time of the trial caused by the weight of Mrs. Grouchy’s body could have been known only by her. The medical experts, particularly Drs. Lorio and McKowen, agree that no permanent disability will result to Mrs. Grouchy from the injury. The evidence supports that conclusion, but, as she testifies that she is no longer a young person, that fact must be taken into consideration in fixing the amount of damages, as with- the advance of age nature does not bring immediate relief from the effects of physical injuries.

The lower court gave her judgment for $2,646.40, which includes the expenses she incurred for medical treatment. We think that the sum of $1,600 will be a fair allowance, and will meet the exigencies of the case.

It is'therefore ordered, adjudged, and decreed that the amount decreed below of $2,646.40 is hereby reduced to the round sum of $1,600, and as thus amended the judgment appealed from be and is hereby affirmed; appellee to pay cost of appeal, defendant to pay the other costs.