author: REYNOLDS, J. ODOM, J.

text:
    No. 2506
    Second Circuit
    ROBERT S. BOSSIER v. LOUISIANA OIL REFINING CORPORATION
    (November 4, 1925, Opinion and Decree)
    (December 17, 1925, Rehearing refused with reasons.)

      (Syllabus by the Editor)

    1. Louisiana Digest—Master and Servant —Par. 154.
    Under Section 38 of Act 20 of 1914, the Workmen’s Compensation Act, as amended by Act 38 of 1918, a hernia caused by leaning over and throwing pipe at an angle is an accident and, therefore, within the meaning of the Act.
    2. Louisiana Digest—Master and Servant —Par. 160 (a). „
    The refusal of an injured employee under the Workmen’s Compensation Act No. 20 of 1914 to submit to an operation for hernia may not be so unreasonable as to bar him from recovery under the Act, the evidence showing that the operation will not necessarily cure the patient and that there is danger that it may prove fatal attached to it.
    3.Louisiana Digest—Master and Servant ' —Par. 160 (k).
    Under the provisions of the Workmen’s Compensation Act No. 20 of 1914, Section 21, Subsection 2, and Act 214 of 1906, a contract between an injured employee and his attorney by which the attorney is to receive one-third of the amount recovered is not unreasonable.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    This is a suit brought by an injured employee for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellee.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for defendant, appellant.
    STATEMENT OF THE CASE
    This is an action under the Workmen’s Compensation Law of Louisiana to recover $20.00 per week for 400 weeks, beginning March 14, 1925, for an injury to plaintiff’s left side resulting in a left inguinal hernia, alleged to have been received while plaintiff was assisting in lifting a drill stem, arising out of and incidental to his employment by defendant. Plaintiff also asks that his contract with his attorneys, Long & Crow, whereby they are to receive one-third of whatever sum may be recovered in the suit, be approved by the court.
    Defendant denied liability on the ground that the injury complained of was not the result of an accident within the meaning of Subsection 1 of Section 38 of the Workmen’s Compensation Act.
   REYNOLDS, J.

In the alternative, they allege that the injury could easily he corrected by a minor operation, simple, safe and certain, and that plaintiff’s continuing disability resulted not from the injury but from his own willful, unreasonable refusal to submit to an operation.

It also alleges that the contract between plaintiff and his attorneys is contrary to the provisions of the Workmen’s Compensation Law and public policy, and is illegal, null and void.

On these issues the case was tried and there was judgment in favor of the plaintiff for compensation at the rate of $12.28 ■ per week for 300 weeks, with the first payment decreed due March 14, 1925, with 5 per cent per annum interest on each payment from its maturity until paid, and the contract between plaintiff and his attorneys was approved.

Prom this judgment defendant appealed.

ON THE QUESTION THAT THE INJURY COMPLAINED OP WAS NOT AN ACCIDENT

Plaintiff testified (Evidence, page 2):

“Q. Had to help on the floor? Well, what happened to you on or about the 6th day of March, 1925?

“A. Got a hernia.
“Q. Hernia? Just state to the court how that injury was sustained by you?
“A. Well, I was—we were breaking down the drill pipe; me and another fellow was shoving it out to be racked and while that was going on I felt a little hurting, and then the next day it arrived bad.
“Q. Which side?
“A. Left side.
“Q. In what part of your body?
“A. Well, the lower part, I guess you would call it.
“Q. Near the groin?
“A. Yes, sir.
“Q. Left groin?
“A. Yes, sir.
“Q. What kind of pain was it?

(Page 3)

“A. Well, it was a sharp pain; hurt bad.
“Q. What did you notice that night or next morning?
“A. It was a little knot. And then the next day it come a big one, and I went down to the doctor.
“Q. Well, how did it affect you the next day?
“A. -Well, it was just a big knot came down. It pained me awful.
“Q. Did it come down into your scrotum or back (sack) ?
“A. Yes, sir.
“Q. What kind of injury or trouble had you had before that, if any?
“A. Not any kind—no kind.
“Q. There had never been anything the matter with you before?
“A. No, sir.
“Q. What was the approximate weight of these pipes which you were lifting? Throwing?
“A. I don’t know exactly, but three hundred (300) or four hundred (400) pounds. About fifteen (15) pounds to the foot.
“Q. What kind of position did you have to get into to handle that pipe?
“A. Stooped over, shoving like this. (Witness demonstrating.)
“Q. Kind of threw it at an angle?
“A. Yes, sir.
“Q. Twisted the body kind of?
“A. Yes, sir.”

Prom this evidence and under the authority of W. M. McMullen vs. Louisiana Central Lumber Co., 2 La. App. 773, and 3 La. App. 562, we think the injury suffered by plaintiff was accidental within the meaning of the compensation act.

SHOULD PLAINTIFF SUBMIT TO AN OPERATION?

Defendant contends ‘ that it is unreasonable for plaintiff to refuse to submit to an operation for hernia that would almost certainly result in a permanent cure with but slight possibility of death or damage resulting from the operation, and that he cannot recover compensation for a condition that he voluntarily continues.

Doctors G. H. Cassity, T. E. Williams, S. W. Boyce and E. L. Sanderson testified as to the effect of an operation for hernia. Doctor Cassity testified, page 13 of the evidence:

“Q. What did you find? What was the result of your examination?
“A. I find that he has a large left oblique inguinal hernia.
“Q. What do you mean by a large hernia?
“A. The opening that the hernia comes through is what we would call large. It is a little less than a half-dollar in size; between the size of a quarter and a half-dollar. In other words, it allows the intestine readily to come down into the scrotum. I found it in that situation when he came to me for examination; the intestine was entirely outside of the abdomen and down in the scrotum.
“Q. State whether or not such a condition is serious and painful, doctor.
"A. The condition is painful to a certain extent all the time when a man is on his feet.
“Q. What about doing heavy work— straining work; what effect would that have on him?
“A. It would increase the suffering.
“Q. Will, or not, that condition be permanent, doctor, without an operation?
“A. The condition will be absolutely permanent without an operation.
“Q. Will it grow worse or less serious in your opinion?
“A. It will grow worse.
“Q. Well, what about the probability of an entire cure or the complete success of an operation?
“A. Well, the chance for a complete cure is fair; it is not absolute.
“Q. Well, will you state whether or not, in your knowledge and opinion, there are fatalities from operations for hernia of this nature?
“A. There are.
“Q. What about administering an an-aesthetic in a case like that?
“A. Well, an anaesthetic is generally used though not absolutely necessary. It can be operated on with local anaesthesia. The hazard of infection, in my judgment, is increased in operating for hernia of that size with local anaesthesia.”

Doctor T. E. Williams testified, page 20 of the evidence:

“Q. What is the remedy, doctor, usually recognized by the medical profession for hernia?
“A. The conservative treatment is trusses; the radical treatment is operation.
“Q. What is the cure usually suggested by physicians and surgeons?
“A. The operation.
“Q. Is that operation safe, doctor?
“A. Comparatively safe.

(Page 21)

“Q. Well, just state to the court how you compare it with other operations.
“A. It is a safer operation than most abdominal operations. Yes, sir.
“Q. Is the cure certain, doctor?
“A. In most instances.
“Q. In most instances? Suppose that a man does not have an operation for hernia what dangers does he undergo?
“A. Possible strangulation.
“Q. What is that?
“A. Strangulation? Part of the intestine slipping out from the opening and becoming constricted.
“Q. Is that likely to occur or not likely to occur?
“A. Occurs rather frequently.
“Q. Does it require serious strain to bring that about or slight strain?
“A. Sometimes a slight strain will do it.
“Q. Even to a man who is not engaged in strenuous work?
“A. Yes, sir.
“Q. Doctor, is this strangulation serious or dangerous?
“A. Yes.
“Q. Is it fatal?
“A. If not attended to immediately it is.
“Q. How can that be attended to, doctor?
“A. Operation.
“Q. That is the only thing that can be done?
“A. You can get temporary relief by reducing it, but the only thing to prevent it recurring again is an operation. The truss is. temporary.
“Q. That is merely temporary relief?
“A. Yes, sir.
“Q. How would you compare, from your experience, the dangers from strangulation and the dangers from an operation for hernia? Would the fatalities be more from strangulation or from an operation?
“A. More danger from strangulation.
“Q. Is the operation for hernia any more painful or does it cause any more suffering than the average operation, doctor?
“A. Less than most operations of the abdomen.
“Q. If a man is in reasonably sound health, and is young, what would you say of the probabilities of success in the case of a.n operation for hernia?
“A. It ought to be one hundred per cent.
“Q. Is it possible, doctor, for a man to wear a brace or truss all the time in a case like this?
“A. All the time.
“Q. Yes?
“A. Yes, sir.
“Q. Does that prevent strangulation?
“A. It will, in most instances, as long as you wear it.
“Q. Is it possible for strangulation to occur when a man is doing heavy work, even though he had a truss on?
“A. It is possible, yes.
“Q. Will you state to the court the nature of an operation for hernia and what has to be done in remedying the defect—^ remedying the injury? Just what does the surgeon do?
“A. In the normal condition of a man’s body there are small openings in the lower part of the abdomen known as the inguinal rings, through which the spermatic cord passes, and a hernia is an enlargement of these rings. An operation consists of an incision over those rings through the parts down through the abdominal wall, overlapping and sewing the different layers so as to prevent a recurrence of the enlargement of those rings.
$ ‡ ‡ $
“Q. .Now, doctor, you know of young, healthy, able-bodied men dying from being operated on for hernia, do you not? Strong as a mule, and that is as strong as a man can get, being operated on for' nothing in the world but hernia, dying?
“A. I cannot say that I do. I cannot remember an instance.
“Q. You do not remember an instance like that? People operated on for hernia, good, able-bodied, strong people?
“A. I don’t remember any.
“Q. You do not remember any? I will dig you up some names. It is possible, though, for them to die, is it not, from hernia?
“A. Other circumstances. Not as a consequence of the operation.
“Q. Well, I do not know what you would call it.
“A. Not from the operation.
“Q. I asked you if a man, an able-bodied man, does not quite often die when operated on for hernia?
“A. They die after being operated on for hernia.
“Q. Well, there is a chance for a man ,to lose his life—that is all I mean.
“A. There is always a chance for a man to lose his life.
“Q. All right.
“A. In crossing the street you take a chance of losing your life.
“Q. Is there not a greater, chance of one losing his life in being operated on for hernia than in crossing the street?
“A. Probably so.
“Q. Is there not a much greater chance ;Of losing one’s life in being operated on for hernia than in crossing the street?
“A. T do not think a great deal.
“Q. Is not there a chance of the spermatic cord being tied and for a man to lose his sexual powers in being operated on for hernia?
“A. Well --
“Q. You do not know that we had one operated on under the eye of the court—James A. Kenner—operated on at the Highland Sanitarium?
“A. That occurs occasionally.
‡ ‡
“Q. It is not a simple operation, is it, doctor?
“A. We consider it a fairly simple operation, yes, sir.
“Q. What?
“A. We consider it one of the simple 'operations of the abdomen.
Si # # #
“Q. Doctor, is it just as easy to keep a deadened tissue clean as a live one?
“A. I will modify my response to Mr. Long’s question. The case I had in mind died following an operation for hernia. The operation was not the direct cause of the death, it was probably the indirect cause of death. The case I refer to was strangulation and the patient had to take a general anaesthetic, and as a result contracted—she had a bad tubercular condition of the chest—and the anaesthetic gave her pneumonia from which she died.
“Q. Do you remember of having read of some case, besides that, in your study of medicine, that did die from the effect of or from an operation for hernia, directly or indirectly, from hernia, besides that one, in all of your lifetime?
“A. I think there are a good many cases I do not recall.”

Doctor S. W. Boyce testified, page 31 of the evidence:

“Q. What was your advice to Mr. Bossier?
“A. I examined him and advised him to have an operation to correct this condition.

(Page 32)

“Q. What would you say of the possibility ■ of success and the certainty of cure in cases of operation for hernia?
“A. Prom my observation and experience —from my experience— it is one hundred per cent. Prom my observation it is probably ninety-six or ninety-seven per cent.

(Page 33)

“Q. Is the danger of strangulation in the event that an operation is not had very large?
“A. In a hernia of this size—in a man of his age and the kind of work that he does—it is ninety-nine per cent certain.
“Q. That was a rather large hernia?
“A. Yes, sir.
“Q. Now, when the Louisiana Oil Refining Corporation offered this operation to Mr. Bossier, did they offer the services of a competent and successful surgeon?
“A. Yes, sir.
“Q. Dr. Hendrick is a reputable physician?
“A. Yes, sir.
“Q. If he makes a mistake in a hernia, anybody else is likely to make one?
“A. We all make mistakes.

(Page 40)

“Q. All right. Now a man goes on the table for hernia and there is no absolute gúarantee that he is either going to be cured or that he is coming off alive—is there, doctor?
“A. None at all.

(Page 42)

“Q. Then, doctor, I misunderstood you. In other words, complications can arise from hernia?
“A. Not the operation.
“Q. And death would be due to the complication?
“A. Yes, sir.”

Doctor E. L. Sanderson testified, page 49 of the evidence:

“Q. Doctor, I will ask you if, as a practitioner, you are acquainted with the operation called an operation for hernia or rupture?
“A. Yes, sir.
“Q. I will ask you to state whether or not the operation requires as great or greater skill on the part of the surgeon than an operation for appendicitis?
“A. Yes, sir, it does.
“Q. I will ask you, doctor, if there are ever such things as unsuccessful operations for hernia—either that cause constrictions of the cord or other inflammations or even death?
“A. There are.

(Page 50)

“Q. Would you or would you not advise an operation for hernia?
“A. I would.
“Q. Would you advise it if there were no question of compensation or the compensation act involved; would you advise it to a man in the ordinary walk of life just for his own protection?
“A. I would.

(Page 51)

“Q. Do you use a local anaesthetic for this kind of an operation?
“A. About, I should say, one-third of the time.

(Page 52)

“Q. Just one moment! In your observation, generally, what per cent of the hernia operations are successful and produce a cure?
“A. No_ definite authorities are given, definite statistics on that; but my personal observation is that—of course, this is more or less of a guess—but it is that about one out of twenty come back.
“Q. One out of twenty?.

(Page 53)

“A. I should think that is a pretty fair estimate.
“Q. Ninety-five per cent are cured?
“A. No—Well, I just don’t know what.
“Q. (Interrupting) What percentage it is, but you should say that nineteen out of twenty are satisfactorily cured?
“A. I believe so. ^
“Q. Doctor, one question. There are people, though, who die from operations for both hernia and appendicitis?
“A. Sure.”

Under this evidence as a whole and under the authority of A; A. Addison vs. Powell Lumber Co., 1 La. App. 210„ the syllabus of which reads as follows;

“Where an employee is injured, under the Employers’ Liability Act No. 20 of 1914, the employee is entitled to compensation even though he refuses to undergo an operation for hernia, the evidence showing that it will likely cure him, but the success of the operation cannot be guaranteed, a small per cent being not benefited and one-half of one per cent being fatal.”

This court is not prepared to hold that plaintiff’s refusal to be operated on for hernia was so unreasonable as to bar him from recovery under the Workmen’s Compensation Act.

ON THE PROPOSITION THAT THE CONTRACT BETWEEN PLAINTIFF AND HIS ATTORNEYS IS ILLEGAL

This court has recently held in the case of Matthew Burton vs. Kaucher, Hodges & Co., 3 La. App. 74 (herein), and this day decided, a similar contract to that here in question, to be valid under the provisions of Act 124 of 1906 and Paragraph 2 of Section 21 of the Workmen’s Compensation Act.

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

ON APPLICATION FOR REHEARING

ODOM, J.

The issues in this case have been narrowed down to one, to-wit: Is the plaintiff unreasonably refusing to undergo an operation for hernia?

We have held that, under the circumstances of this case, his refusal to submit to an operation is not unreasonable. This is as far as we have gone.

Counsel for defendant have submitted a long list of authorities from other jurisdictions holding that under some circumstances an injured employee must forego compensation if he refuses an operation.

In the case at bar, we do not pretend to decide that question.

But what we did hold was that the plaintiff, under the testimony, was not unreasonable in his refusal to submit to the proposed operation.

There were four physicians called as witnesses in the case: Doctors Cassity, Williams, Boyce and Sanderson.

Doctor Cassity said that the chances for a complete cure by an operation were fair but not absolute; that sometimes there are fatalities attending such operations; that an anaesthesia is generally used though not absolutely necessary; that an operation can be performed with local anaesthesia, but that the hazard of infection is increased by operating with a local anaesthetic.

Doctor Williams testified that the conservative treatment for hernia of plaintiff’s kind is a truss, “the radical treatment is operation”; that physicians advised operations; and on being asked if that operation is safe, replied: “Comparatively so.”

He said that such an operation is safer than most abdominal operations; that the cure “in most instances” is certain; that an operation for hernia brings on less pain and suffering than most operations on the abdomen. He said if a man is young and sound in health his chances for' recovery “ought to he one hundred per cent”.

He was asked if there was a chance for a man to lose his sexual powers from an operation for hernia, and he said “that occurs occasionally”.

He said it was a fairly simple operation and that doctors considered it a simple operation of the abdomen. He was asked if he had not read of deaths from the operation, and he said: “I think there are a good many cases; I do not recall.”

Doctor Boyce advised plaintiff to undergo the operation. As to the probability of the success of such an operation, he said that his experience showed one hundred per cent success, but that from his observation probably ninety-six or ninety-seven per cent were cured, and that for a man of plaintiff’s age it should be ninety-nine per cent, but that when a man submits to such an operation there can be uncertainty of cure and that death could occur from complications.

Doctor E. L. Sanderson testified that the operation required greater skill than an operation for appendicitis; that there were unsuccessful operations for hernia; that he advised such operations; that in one-third of such operations he used local anaesthesia; and that one out of twenty operations of the kind are failures and that some such operations prove fatal.

It will thus be seen that three of the four physicians testified that some such operations prove fatal. One says that the chances for recovery are fair. One says they should he one hundred per cent safe, but he does not say they are. None of them say it is a simple operation but say it is a “simple abdominal operation”; and one says it is “comparatively safe”. One says that complications may arise producing fatal results, and one says that there are cases where men lose their sexual powers as a result of such operation.

From this testimony we cannot say the operation is “simple and unattended by risk”.

In the case of Bronson vs. Harris Ice Cream Co., supra, the surgeons advised that the operation would not be dangerous to life or health and that the chances for complete success, in which event the limb would be completely restored, and of non success, in which event the limb would be ankylosed and rigid, were about even; but in that case, according to the advice of the surgeons, there was no danger to life or health; and yet the court held that the plaintiff’s refusal to submit to the operation was not unreasonable.

The court cannot say that in order for plaintiff to get compensation he must take a chance on losing his life, however slight that chance may be.

Counsel say in brief that our ruling is contrary to the holding in the Bronson case. On the contrary, we are following that case, as we understand it.

Rehearing refused.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2412
    Second Circuit
    THE CITIZENS BANK v. G. W. HUDSON; F. O. HUDSON, Intervenor
    (December 1, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest—Fraudulent Conveyances—Par. 1, 7, 34, 61.
    A pretended sale in fraud of creditor where no price is agreed upon and there is no delivery of the property is a simulation and, therefore, invalid.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellee.
    G. W. Smith, of Rayville, attorney for defendant and intervenor, appellees.
   REYNOLDS, J.

Plaintiff brought an attachment suit against G. W. Hudson and caused certain teams, harness, etc., to be seized.

F. C. Hudson intervened, claiming ownership of the property seized. He alleged that the property formerly belonged to a partnership composed of himself and G. W. Hudson and that prior to the seizure he had bought G. W. Hudson’s interest.

Plaintiff answered the intervention, setting up that the property was that of its debtor and that the intervenor’s pretended purchase was a simulation or, if not, then it was fraudulent and should be annulled.

The district judge gave plaintiff judgment against defendant for the amount of the debt sued for, sustained the attachment and dismissed the intervention.

The intervenor appealed.

Defendant did not appeal, but filed in this court a motion to amend the judgment as between the plaintiff and himself. The law is well settled that no amendment can be made as between appellees.

Judgment affirmed.

OPINION

The question to be decided is whether the property seized belonged to Hudson Brothers, G. W. Hudson or F. O. Hudson.

• F. 0. Hudson testified that in 1923 he bought G. W. Hudson’s interest in the partnership. This precludes any content tion that the property belonged to the partnership and hence not subject to seizure for G. W. Hudson’s debts, and narrows the question down to whether the property belonged to G. W. Hudson or F. O. Hudson; whether F. 0. Hudson’s alleged purchase of G. W. Hudson’s interest in the property was real or simulated. And this is the issue fairly presented by the pleadings and the evidence.

The evidence relative to this question is that of F. 0. Hudson, who testified, page 9:

■ “Q. Why did you let Mr. G. W. Hudson remain or why did you give him possession and let him bring this stuff here and use it?
“A. I had nothing for it to do and nothing to operate it with, told him at any time he could satisfy the debt of the Bank of Commerce and Trust Company I was willing to turn the whole thing over to him, I was tired fooling with it, didn’t care for it; all I wanted to do. was to settle what the partnership owed the Bank of Commerce and Trust Company.’
“Q. Mr. Hudson, you have testified that this partnership, composed of yourself and G. W. Hudson, was an ordinary partnership; I will ask you if you know what an ordinary partnership is?
“A. No, I couldn’t say that I do; it was just formed when we borrowed this money from the Bank of Commerce; we borrowed it in Hudson Brothers’ name; he acquired a half interest in the amount of stuff on hand and in charge of it, has been ever since.

(Page 10)

“Q. Who was Hudson Company?
“A. Hudson Company is a corporation owned by W. M. Hudson and operated by him solely.
“Q. And W. M. Hudson is a brother of yours?
“A. Yes.

(Page 11)

“Q. Does he own all of the stock?
“A. No, sir.
“Q. Do you own any of it?
“A. Own one share.
“Q. Now, when this stuff left DeSoto parish I believe you said it went to Haynes-ville?
“A. Yes.
“Q. In possession of whom?
“A. Hudson Brothers when it left DeSoto parish.
“Q. I know; which one of the Hudsons carried it there? G. W. Hudson?
“A. G. W. Hudson, yes.
“Q. You didn’t go along did you?
“A. I didn’t go the day it went there, no, sir.
“Q. And then it moved from Haynes-ville to Arkansas, I believe you said?
“A. Part of it, yes.
“Q. Who carried it there?
“A. He did.
“Q. G. W. Hudson?
“A. Yes.
“Q. Then he moved it from Arkansas to what point?
“A. Crew Lake.
“Q. Crew Lake; he was still in possession of it?
“A. Yes.

(Page 12)

“Q. He used it as his own?
“A. He did.
“Q. He fed it and worked it?
“A. Yes.
“Q. And collected for the earnings?
“A. Yes.

(Page 15)

“Q. And' you paid him a thousand dollars in ca'sh for his half interest in that twenty-four or five head?
“A. No, sir; no, sir—yes, yes,' for half interest in possibly forty head or more.
“Q. And gave him two hundred and fifty dollars to bring them from Arkansas to Richland parish?
“A. I did.
“Q. And assumed an indebtedness of around four thousand dollars?
“A. Possibly that much, I don’t re- ' member.
“Q. In payment of that?
“A. Yes; and -
“Q. Now, wait a minute; now didn’t you also testify just a few moments ago on direct examination that you left all this property with your brother for the reason that you had nothing for it to do?
“A. I did.

(Page 16)

“Q. And did you not have time to look after it?
“A. Yes.
“Q. And didn’t have time to look after it or have anything for it to do up to and including the day you sued out this injunction, did you; in other words, you never have had anything for it to do since you bought it up until you brought this suit?
“A. No, sir.
“Q. What is your brother, G. W. Hudson, doing now?
“A. He is working in the Webster parish oil field, I think.
"Q. Same business he has been engaged in all the while, hauling?
“A. I really don’t know what he is doing, Mr. Hodge. Just be honest about it. I don’t know what he is doing, what he has been doing since the time of this seizure.
“Q. Where is this stock now?
“A. I got part of it on the farm and there is part of it over there.

(Page 17)

“Q. Your brother, G. W. Hudson, has got part of it and you have got part of it?
“A. Yes.

(Page 20)

“Q. Now, then, Mr. Hudson, what is your explanation for giving to your brother fifty-two hundred and fifty dollars for a half interest in a partnership whose assets you have already stated were not worth as a whole in excess of five thousand dollars?
“A. The two hundred and fifty dollars, Mr. Hodge, was given to him for expense money to bring it back to Louisiana, after I had bought his interest.
“Q. Yes?
“A. And another reason is he was advised by Mr. Jerome Queenan to sell it in the presence of Mr. Harwell.
“Q. And you took his advice?
“A. I did after due consideration.
“Q. And gave him a thousand dollars in cash, too?
“A. Yes, I did that.
“Q. Well, doesn’t that make five thousand dollars that you paid for his half interest?
“A. No, sir, I can’t see it that way.
“Q. What does it make you paid?
“A. Only makes twenty-five hundred dollars I paid for half interest. •
“Q. All right; you already owned half of that four thousand dollars, didn’t you?
“A. Yes.
“Q. You assumed the half interest of the two, was it?
•%A. Yes.
“Q. You gave him three thousand dollars in cash, didn’t you? Didn’t that make three thousand dollars you paid him for his half of it? One instead of three?
“A. No, sir, I can’t see it that way.
“Q. Then how do you arrive at the twenty-five hundred dollars that you -
“A. We valued it at twenty-five hundred dollars and I gave him a thousand dollars in money.
“Q. Yes?
“A. Which would have left me, had we not owed this money to the bank, owing him fifteen hundred dollars, instead of paying to him why I assumed what ■ he owed the bank, was it?
“Q. Well, you assumed two thousand dollars he owed at the bank?
“A. If it was four thousand dollars, I did; why I don’t know exactly what the amount was at that time.
“Q. Well, what is your explanation of the reason that you paid this price for the stuff?
“A. The reason that I paid it, Mr. Hodge, was because I thought it was worth it just like I go in a barn and buy a mule; if I can agree with the man to sell the mule on the price why I paid it because I think it was or is worth it.
“Q. You thought it was worth it, yet you had no use for it and nothing for it to do ?
“A. Not at that time, I did not have anything for it to do.
“Q. And haven’t had since?
“A. No, sir.
“Q. And haven’t had any use for it since you bonded it out under this injunction?
“A. No, sir, I haven’t. I ami using some of it.
“Q. And your brother, G. W. Hudson, is still able to find something for it to do and he is using it for you, isn’t that so?
“A. If he is using it he is using it for himself and not for me.
“Q. Using it for himself?
“A. Yes, not for me.

(Page 23)

“Q. Are there any judgments in Shreveport against Hudson Brothers?
“A. No, sir. Well, there is this Bank of Commerce and Trust Company judgment.
“Q. They have got a judgment against you?
“A. Against Hudson Brothers, yes.

(Page 24)

“Q. You don’t know how many or where they were?
“A. Yes, they were in Arkansas and he brought them to Richland parish at the time he brought the partnership stuff.

(Page 25)

“Q. He also owed something on his stock, didn’t he?
“A. I don’t know; he bought the bulk of his stock after he went to Haynesville. I don’t know how it was, what he bought it with.
“Q. Have you actually participated in the management of this partnership about which you have testified since it was organized?
“A. Oh, yes, yes.
* * * *
“Q. When did you quit?
“A. When he carried it to Haynesville.
“Q. When he went to Haynesville you didn’t have any more to do with it?
“A. No, sir.

(Page 51)

“Q. Mr. Hudson, where were you when you bought the interest of your brother in this partnership about which you have testified?
“A. Homer.
“Q. At Homer?
“A. Tes.
“Q. Who was present when this transaction took place?
“A. Mr. Queenan and Mr. Harwell.
“Q. Mr. Harwell?
“A. Yes.
“Q. Were any one else?
“A. And G. W. Hudson.

(Page 52)

“Q. You say Mr. Harwell was present when you bought your brother’s interest in that partnership property?
“A. He was talking; when we was talking it out in the middle of the street between the courthouse and the clerk’s office or out on the courtyard and on the way to the clerk’s office where the transaction was completed.
“Q. Did Mr. Harwell see you give your brother this check?
“A. No, sir, he did not.
“Q. When did your brother give this thousand-dollar check to your other brother?
“A. I don’t know, sir.
“Q. Is your other brother, G. W. Hudson, present?
“A. Yes.”

W. L. Harwell testified, page 52:

“Q. Mr. Harwell, you have just heard E. 0. Hudson state that you were present in Homer when he made a trade with his brother for an undivided half interest in the property belonging to a partnership that he says existed between himself and G. W. Hudson, is that so?
“A. Well, I can’t say for sure about that; I don’t really know about that deal; I don’t—they was saying something about something; some way I mean about a few, I didn’t understand that deal, I don’t know about it; I can’t say about that part of it, I didn’t really hear the deal made for sure; they might have said a little something or other about it,, something I couldn’t say just sure, they—What they' did say in there, I didn’t hear the full deal made nothing like that at all.
“Q. So if G. W. Hudson sold P. 0. Hudson any interest that he had in anything you didn’t hear it?
“A. No, sir, I didn’t know about that.

(Page 53)

“Q. Well, now isn’t it a fact that you understood that something of that kind was being done that G. W. Hudson was selling to P. 0. Hudson?
“A. I don’t know enough about it to give any light on it, to be truthful about it. I didn’t have anything to do with that part of it. I don’t know anything really about that part of it.

(Page 33)

“Q. How do you know whether or not G. W. Hudson bought any harness or mules or horses while he was engaged there at Haynesville?
“A. Yes, he did.
“Q. About how many did he buy?
“A. Well, it would be pretty hard for me to say exactly how many he did buy.
“Q. Were they—would you say as many as ten or fifteen?
“A. Well, yes, I would think so.

(Page 37)

“Q. Do you know who carried that stock from Haynesville to Arkansas?
“A. Yes.
“Q. Who?
“A. Mr. G. W. there.

(Page 40))

“Q. Give us some idea of what you mean by a good many?
“A. Seventy-five or eighty head. No, let me see, he was working at one time, I expect, it was very near that many there he started out with about, when I .started working for him, I think he had about six or seven four-ups, something like that; when he left, carried these away from there to Smackover, he must have had seventeen or eighteen four-ups, something like that.

(Page 41)

“Q. How - many did he have left in Haynesville? •
“A. He had this twenty-six head there I bought.
“Q. After you bought the twenty-six head, how many did he have left at Haynesville?
“A. He didn’t have any left at Haynes-ville.

(Page 42)

“Q. How many did he have when you went to work for him?
“A. When I went to working for him he must have had twenty-five or thirty head when I went to work for him; he brought some more along; he bought a few along at the time; sorter hard to keep up with it; tell exactly how many he did have.”

H. C. Cummings testified, page 45:

"Q. Did you know G. W. Hudson?
“A. Yes.
“Q. How long have you known him?
“A. Since he came to Haynesville.
“Q. When did he go to Haynesville?
“A. In nineteen hundred and twenty-one.
“Q. What business was he engaged in there?
“A. Teaming business.
“Q. Was this judgment that you got against him for feed?
“A. Yes.
“Q. To whom did you sell the feed to? To G. W. Hudson?
“A. G. W. Hudson.
“Q. Did you ever hear of Hudson Brothers?
“A. No, sir. I have heard of Hudson brothers, but no Hudson brothers together in the teaming business I ever heard of; Hudson Brothers in Shreveport.
“Q. Was that Hudson Brothers composed of G. W. Hudson and P. 0. Hudson?
“A. Yes. ;
“Q. Did G. W. Hudson hold himself out to you and to other people in Haynesville as the owner of this stock?
“A. Yes.

(Page 45)

“Q. Do you know how many head of . horses and mules Mr. G. W. Hudson was working there in nineteen hundred and . twenty-one and up until the time that the ' outfit was divided, part going to Arkansas and part remaining at Haynesville?
“A. He had about seven four-ups when he firs’t came there.
“Q. Seven four-ups would be how many ■ head? ;
“A. Be about thirty head, somewhere about thirty head; later on he got in possession of about sixty or seventy head, something like that.”

Loy L. Been testified, page 48:

“Q. Were you living in Haynesville in nineteen hundred and twenty-one, twenty-two, twenty-three and twenty-four?
"A. Yes.
“Q. What business were you engaged in?
“A. General mercantile business, that is, twenty-one; we sold out in twenty-two.
“Q. Twenty-two, did you know Mr. G. W. Hudson?
“A. Yes.
“Q. I ask you to state whether or not during that time you sold Mr. Hudson any stock?
“A. I sold him two saddle horses.
“Q. Did you sell him any harness?
“A. Yes, I sold him 'some harness.

(Page 49)

“Q. Now you know whether or not he was buying or selling stock pretty well all the while, while he was there, trading?
“A. He was buying some and swapping some.
“Q. Doing considerable trading?
“A. Yes, got some out of Shreveport, some from dealers there in Haynesville.”

G. W. Hudson, a brother of plaintiff, with whom he claims to have made the trade and who is now claiming this stock was present in the courtroom and, though called as a witness for cross-examination by the seizing creditor, was not permitted to testify as on cross-examination and was never sworn as a witness for the plaintiff.

The above quoted evidence shows that G. W. Hudson moved to Haynesville in 1921 and had at that time seven four-ups teams twenty-eight or thirty head of stock. He operated these teams as his own for about two years, bought, sold and swapped mules and horses frequently and increased his teams from six or seven four-ups or twenty-four or twenty-eight head, to seventeen or eighteen four-ups or sixty-eight or seventy-two head.

He then divided his teams and sent all but twenty-six head to Smackover, Arkansas. Sixteen of the twenty-six head were encumbered with a chattel mortgage in favor of a bank at Mansfield, Louisiana, and were, therefore, sixteen of the twenty-four head of stock that he moved from Mansfield to Haynesville and probably constituted the outfit that G. W. Hudson moved from Haynesville.

In some way not explained in the evidence those teams were in the hands of the Citizens Bank of Haynesville and by a compromise agreement between the bank, G. W. Hudson and F. 0. Hudson, they were sold to Harwell and $1200 of the purchase price was paid to F. 0. Hudson. Roughly, this is about one-half of the value of the outfit that G. W. Hudson moved to Haynes-ville from Mansfield, and if F. 0. Hudson owned a one-half interest in same his interest was well cared for in the compromise agreement made between the bank and G. W. Hudson and F. 0. Hudson.

It is also shown that the thousand-dollar check handed to G. W. Hudson was promptly endorsed to W. M. Hudson, another brother.

Sixteen of the mules that were in the possession of the Citizens Bank of Haynes-ville were covered by a chattel mortgage in favor of the Bank of Commerce and Trust Company of Mansfield, and F. 0. Hudson testified that he and his brother, G. W. Hudson, owed the bank $4,000.00, and that he had since borrowed from the bank $750.00. It ,is therefore not unreasonable to suppose, that this thousand dollars eventually went to the bank in Mansfield on the payment of it and the fact that F. O. Hudson owed this mortgage to the bank of something like $4,000.00 and borrowed since that time $750.00 is additional reason for questioning the bona fides of the purchase of the property claimed by him—property for which he admits he had no use and had no time to attend to.

The teaming outfit that had been sent to Smackover, Arkansas, and later moved to Crew Lake and seized in this case, was entirely under the management and control of G. W. Hudson, and F. O. Hudson’s contention that he bought an interest in them from G. W. Hudson must stand or fall under the foregoing quoted evidence.

From this evidence it is apparent that F. O. Hudson at the time he pretended to purchase his brother’s half interest in this stock in the town of Homer, Louisiana, did not pretend to know at what price he was purchasing same, nor was there any delivery of the property, for the stock were at that time in Arkansas. There was, therefore, insofar as the,seizing creditor in this case is concerned, two of the essential elements of a sale lacking, to-wit: A price and delivery, and under all of the evidence we are convinced that the pretended sale was a simulation. Under all of the evidence we are convinced that the property moved to Arkansas was 'insofar as the seizing creditor is concerned the property of G. W. Hudson.

For these reasons the judgment of the lower court is correct and it is accordingly affirmed.


author: BELL, J.

text:
    No. 10,133
    Orleans
    JOHN W. CAREY v. NEW ORLEANS PUBLIC SERVICE, INC.
    (November 2, 1925, Opinion and Decree)
    (November 16, 1925, Rehearing Refused)
    (January 4, 1926, Writ of Certiorari and Review denied by the Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Street and Interurban Railroads—Par. 21; Carriers of Pas- . sengers and Goods—Par. 15.
    A street railway company owes no more care in the operation of its cars to a holder of a transfer, who awaits the car on which he is to use the transfer than to other prospective patrons who are without transfers and are awaiting the same car.
    2. Louisiana Digest—Appeal—Par. 625.
    Findings of fact by the trial court will be approved on appeal unless clearly erroneous.
    Appeal from the First City Court of the City of New Orleans, Section “A”, Hon. W. A. Bahns, Judge.
    This is a suit for damages for personal injuries caused by being struck by the rear door of the street car.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Benj. Y. Wolf, of New Orleans, attorney for plaintiff, appellant.
    Benj. W. Kernan, of New Orleans, attorney for defendant, appellee.
   BELL, J.

Plaintiff claims damages of defendant in the sum of three hundred dollars for injuries to his left hand, which he claims was struck by the rear door of defendant’s street car while plaintiff was about to board the car on the neutral ground on Canal street near the corner of Bourbon street, in the city of New Orleans.

It is alleged that the door was thrown open before the car had stopped to take on plaintiff and some twenty other passengers; that it was negligence for the conductor to have opened the door before the car had stopped, and that the opening of the door caused it to protrude beyond the side of the car and to strike plaintiff, who was standing some twelve to eighteen inches away from and on the side of the car. Defendant denies, all of the allegations of plaintiff’s petition as to the cause of the accident, and further denies that it was in any manner negligent in the operation of the car. It avers that whatever injuries plaintiff sustained were caused by his own careless and imprudent conduct in moving either too close to the car or in carelessly striking his hand against the open door.

There was judgment for defendant, and plaintiff has appealed.

The only evidence offered on behalf of plaintiff is that found in his own testimony. He avers that he is a cripple, having lost one of his legs, and that he was on crutches at the time of the accident, which occurred in the afternoon of April 20, 1925; that he was standing at the place above noted and was waiting for the Tulane Belt car, to which he held a transfer from the Desire car; that as the Tulane car had passed him by half of its length, he looked up and saw the rear door open before it got to him, and that he tried to get away but could not do so because of the crowd of people behind him; that he was struck on the back of the hand by the protruding door which extended about one foot from the side of the car. He admits, on cross-examination, that* he knew the car overhung the track about eighteen inches, and that at the time of the accident he was standing about two or three feet from the track instead of twelve to eighteen inches, as alleged in his petition. He also admits that he had been in the habit, for three years prior to the accident, of taking the same car line at the place where he was injured, and that he well knew the rear door, when opened for the entry of passengers, extended quite a little, at least a foot, beyond the side of the car.

The act of negligence upon which plaintiff claims recovery is that the door was opened before the car had come to a stop. As to this fact, he is positively contradicted by the conductor of the car, who avers positively that he never swung his lever nor opened the door until the car had come to a full stop, and that he only then saw plaintiff, who was among the first of the many passengers boarding the car. The doctor for the railway company who examined plaintiff’s injuries testified that they were of a minor nature, and that plaintiff told him while being examined, “that the car had come to a stop; that the conductor opened the door and it struck him on the hand”. Plaintiff, called in rebuttal, denies that he made such a statement to the doctor.

Upon this kind of evidence—none stronger—has the plaintiff presented his case. There is nothing in the record to justify us in concluding that the findings of the trial judge, who saw and heard these witnesses, were erroneous.

It is argued for plaintiff that because he held a transfer from the Desire car to the car by which he claims to have been hurt, he was entitled to continue on his journey in the capacity of a passenger to whom the defendant owed due consideration and protection, such as should be given to all passengers. We have not been referred to any authority, nor have we been able to find any, in support of this contention. We cannot take such a view of this case which, in our opinion, fails to establish any negligence whatever against the carrier. The judgment appealed from is, in our opinion, correct, and will be affirmed.

Judgment affirmed.


author: WESTERFIELD, J.

text:
    No. 10,132
    Orleans
    B. MARTINO & SON v. N. CATALANO, Appellant
    (January 4, 1926, Opinion and Decree)

      (Syllabus by the Court)

    1. Louisiana Digest—Partnership—Par. 65, 79.
    Where defendant has for a number of years dealt with plaintiff individually on open account and thereafter forms a partnership without notice to plaintiff of any change in their business relations, defendant will be held liable for the purchases of' the partnership charged to defendant’s account, unless it is proven that plaintiff had knowledge of the partnership.
    Appeal from the City Court of New Orleans, 'Hon. Wm. Alexander Bahns, Judge.
    This is a suit for the value of merchandise sold and delivered. There was judgment for plaintiff as prayed for and defendant appealed.
    Judgment affirmed.
    Alex W. Swords, of New Orleans, attorney for plaintiff, appellee.
    Max M. Schaumburger, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by B. -Martino & Son against William Catalano to recover one hundred and twenty-six and 25-100 ($126.25) dollars for merchandise alleged to have been sold and delivered to Catalano between November 15, 1923, and April 19, 1924. From a judgment in favor of the plaintiff as prayed for the defendant has appealed.

The evidence shows that Catalano was for a number of years the proprietor of a stall in the St. Bernard Market in this city and that he dealt with plaintiff for some six years buying supplies for his market.

On May 24, 1923, defendant formed a partnership with Sam Latino and B. Schlemer. The goods sued for here were bought during the existence of this partnership, and Catalano contends that the partnership is liable for the price and not he individually.

The partnership was of short duration and ended in a row.

B. Martino, testifying for plaintiff, says he knew nothing of the partnership, but continued to charge all purchases to Catalano and that Catalano specifically authorized him to deliver to Latino any merchandise he might order and charge same to his (Catalano’s) account. Latino corroborates Martino in every respect.

The only evidence to the contrary is that of the defendant himself, which is not very satisfactory. Checks given plaintiff bearing the printed name, Catalano & Co., were introduced in evidence and it is claimed that the delivery wagon used in the defendant’s business bore that name. But there is no evidence that plaintiff ever dealt' with Catalano & Co., or knew of anyone having any interest in the defendant’s business other than himself.

Under the terms of the partnership, Catalano, who retired from active participation in the business, was to receive one-third of the profits for the use of his name. The only change claimed to have been made by the partnership was the addition of the Symbol and the letters “Co.” and it is not shown that plaintiff was aware of this addition.

The evidence largely preponderates in plaintiff’s favor and we think with the trial court that plaintiff is entitled to a judgment as prayed for.

For the reasons assigned the judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 10,150
    Orleans
    JOHN F. KOERNER & CO. v. B. C. FRANCINGUES, Appellant
    (November 2, 1925, Opinion and Decree)
    (November 16, 1925, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest—Courts—Par. 89.
    The city courts for the Parish of Orleans have no "jurisdiction of a claim in compensation exceeding $300.00 in amount. ■
    Appeal from First City Court, Hon. W. V. Seeber, Judge.
    This is a suit for the price of flour sold and delivered.
    There was an exception of vagueness filed by defendant.
    . There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Eugene Thorpe, Hugh Morrison, of New Orleans, attorneys for plaintiff, appellees.
    Geo. J. Untereiner, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for the price of flour sold and delivered.

The plaintiffs allege that in September and October, 1924, they sold to the defendant flour to'the amount of $308.25 on account of which there has been deducted $25.00, leaving a balance .due of $283.25. •■The' defendant excepted that the petition was vague and indefinite and disclosed no cause of action, and denied all the allegations of the' petition." ........

Further answering, defendant averred that he purchased flour from the plaintiff in this cause, but he is not liable to plaintiff therefor, “because plaintiff is indebted unto this defendant in the full sum of $388.00, being the difference of the total price of 210 barrels of flour which the defendant purchased from plaintiff on or about September 10, 1924, at $5.90 per barrel, which plaintiff refused to deliver to defendant, thereby compelling this defendant to purchase 210 barrels of flour at $7.70 per barrel for use in the place and stead of the flour he had purchased from plaintiff who refused, though put in default in the mode and manner required by law, so much of which amount defend in compensation as may be necessary to offset plaintiff claim”, o

Wherefore defendant prayed that plaintiff’s suit be dismissed.

There was judgment in favor of plaintiffs as prayed for, “reserving all rights to defendant to proceed in another action under his plea of compensation”.

The defendant appealed.

Upon the trial of the case the defendant, examined as a witness under the act, testified to the correctness of the bill sued on.

When his counsel attempted to examine him on the demand set forth in his answer, the plaintiff objected:

“First, on the ground that the court had no jurisdiction of any claim in an amount in excess of $300.00.

“Second, because the claim alleged to be set up b(y defendant is unliquidated, and cannot be set up in compensation as against a liquidated claim.”

The objection was maintained, reserving to the defendant any and all rights he may have under said plea in compensation for damages to be brought in another proceeding.

In the case of Arctic Pure Ice Co. vs. Rathe, 3 La. App. 314, October 5, 1925, we decided that the City Court had no jurisdiction of a claim in reconvention in excess of $300.00. The same ruling must be made in a demand in compensation. See also Ross vs. Crockett, 14 La. Ann. 811, 6 R. 427, 24 R. C. L. Sec. 6, p. 796.

But the defendant argues that he is pleading in compensation only “so much of which amount as may be necessary to offset plaintiffs’ claim”. That is immaterial as this court would have to examine and pass upon a claim in excess of $300.00. If this court decided this claim in compensation only up to $283.25 it might leave undecided the balance of the claim for another court to pass upon. Claims cannot be divided up in this manner.

Judgment affirmed.


text:
    No. 9648
    Orleans
    MRS. SANTA GIARDINA v. JOHN MASSARO AND JOHN C. PATORNO, Appellants
    (October 5, 1925, Opinion and Decree)
    (November 2, 1925, Rehearing Refused)
    (January 4, 1926, Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus dy the Court.)

    1. Louisiana Digest — Automobiles — Par. 4 (b), 4 (d), 8.
    Where a Ford automobile collides with another Ford automobile at a street crossing and after the impact jumps the curbing, proceeds along the sidewalk, knocking a door of a grocery store off the hinges, injuring a pedestrian, and is finally brought to rest by steps on the sidewalk, the circumstances are so persuasive of excessive speed as to require strong proof to establish the contrary.

      Appeal from the Civil District Court for the Parish of Orleans, Division “A”, Hon. H. C. Cage, Judge.
    This is a suit for personal injuries sustained by plaintiff as a result of inter-sectional collision of the automobiles owned by the defendants.
    There was judgment for plaintiff and defendants appealed.
    Judgment amended and affirmed.
    Gordon Boswell, of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, F. F. Tiessier, C. L. Denechaud, J. A. Morales, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

This is a suit for personal injuries sustained by plaintiff as a result of an intersectional collision of the automobiles owned by the defendants.

At the time of the accident, plaintiff was emerging from a grocery store where she had made some purchases, when she was struck by the automobile belonging to the defendant, Patorno, which mounted the curb and was out of control on the sidewalk. Plaintiff was without fault and must recover from one of the defendants. The trial judge thought both defendants were in fault and, consequently, rendered judgment against both in solido. The defendant, Massaro, has not appealed; therefore, we have only to consider the liability of Patorno who has appealed.

The record is quite lengthy, but the facts developed may be briefly stated. The Patorno car was traveling down Bourbon street and the Massaro car was coming from the direction of the river on Governor Nicholls street, which crosses Bourbon at right angles. The two cars met at the intersection and as a result of the impact the Patorno car was driven over the six-inch curb on the downtown lake corner on the banquette into the grocery door, which was knocked off the hinges against the plaintiff, Mrs. Giardina, knocking her down, and brought to a stop by a step on the banquette. The Massaro ear turned into Bourbon street and continued some distance towards Esplanade street, or downtown. It is perfectly obvious that the course of the Patorno car after the accident was due to excessive speed on the part of one or the other or both cars. It is contended bn Patorno’s • behalf that the Massaro car hit the Patorno car so violently that it imparted momentum to the Patorno car very much as the object ball in billiards receives an impetus from the cue ball; that is to say, that the speed was all on the part of the Massaro car. We do not think so. Both cars were Fords and, if anything, the Patorno car was the. heaviest, sincq, it was a sedan, and the Massaro car was a coupe. The advantage of weight, if there was any, favored the Patorno car; moreover, the Massaro car turned to the right entering Bourbon street and proceeded in a perfectly orderly way down that street, while the Patorno car was jumping the curb and knocking the grocery door down and otherwise carrying on in a most disorderly fashion. If the Massaro car had been the battering ram, it must necessarily have followed the path of the Patorno car to some extent, at least since it is not constructed of rubber. The traffic ordinance limits the speed of vehicles at the point of the accident to fifteen miles per hour. We are satisfied the Patorno car was traveling much faster. A mechanic employed by a Ford agent testified that a Ford could be stopped within four or five feet when moving at the rate of fifteen miles per hour.

As to the quantum—the trial judge allowed $1728.90, $1500.00 for the injury and $228.90 for expenses. Without discussing plaintiff’s injuries in detail, we think it difficult to determine just how much of the post accident indisposition of the old lady (she was 78 years old) was due to the accident and how much to senility, for her doctor says she was senile. We think a total award of $1500.00 sufficient.

For the reasons assigned, the judgment appealed from is reduced to $1500.00, plaintiff to pay costs in this court. In all other respects it is affirmed.


text:
    No. 90070
    Orleans
    MRS. MATTIE F. LEWIS v. NORMAN S. FIGURES
    (October 19, 1925, Opinion and Decree)
    (November 16, 1925, Rehearing Refused)

      (Syllabus by the Editor)

    1. Louisiana Digest—Witnesses—Par. 66.
    The fact that the Legislature has changed the law with respect to the admissibility of the evidence of husband and wife as previously established by Art. 2281, R. C. C., has not affected the rule that such evidence is subject to the disqualification of interest which the marital relation imposes.
    2. Louisiana Digest—Evidence—Par. 349.
    Where a ease turns upon the evidence of a wife testifying in her husband’s behalf, her testimony will not be regarded as overcoming natural inferences from proven facts though not the subject of direct proof.
    Appeal from the Civil District Court, Division “A”, Hon. H. C. Cage, Judge.
    This is a suit for the rent for premises vacated by defendant before the termination of a lease.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    John D. Nix, Jr., of New Orleans, attorney for plaintiff, appellee.
    Woodville & Woodville, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a landlady against a tenant for rent for premises vacated by defendant before the termination of the lease. The only question presented is one of fact, namely: Was the defendant absolved from the obligation of the lease by mutual consent. He asserts that there was a verbal understanding, following a quarrel with his landlady, to the effect that the lease which had some nine months to run would be considered cancelled and he was at liberty to find another home. His landlady denies any such agreement or conversation and insists that there was no cancellation of the lease.

The defendant produces his wife as a witness and she corroborates his evidence concerning the cancellation of the lease. Defendant procures another tenant in the person of one Palmisano, who, it seems, was permitted to occupy the premises without prejudice to the rights of either party to this litigation. It is argued that since defendant procured the tenant he must have felt responsible for the rent and that this circumstance is strongly corroborative of plaintiff’s contention that there was no cancellation of the lease. We think this argument persuasive but the wife’s testimony is positive in support of her husband, and both assert there was an agreement to cancel the lease.

There was a time not long distant when the wife’s testimony would not have been admissible (R. C. C. 2291), but the Legislature in its wisdom has overturned this ancient principle of the Civil and Roman Law (Act 1916), and the wife may now testify in her husband’s favor. But the fact that her testimony is admissible has not changed its probative value. The law lias not changed human nature nor removed any of its imperfections. The institution of matrimony remains the same, with the same disqualifications of interest affecting the spouses as witnesses in behalf of their common interest. The wife in this case supports her husband’s testimony. It is quite possible that in another case a wife would contradict her husband, or vice versa. In either case we would view his or her testimony in the light of human experience as subject to such disqualification of interest as the closest of all human, relations impose.

The defendant in this case without his wife’s testimony has failed to sustain the burden of proof, and with all due respect the wife’s evidence is insufficient in our judgment to turn the scale.

The judge of the trial court was of this opinion and we agree with him.

For the reasons assigned the judgment appealed from is affirmed.

Rehearing refused.


author: CLAIBORNE, J. BELL, J.

text:
    No. 9561
    First Circuit
    LOUISE A. WEEMS v. ABRAHAM H. MOISE, ET AL.
    (November 2, 1925, Opinion and Decree.)
    (November 16, 1925, Rehearing Granted.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Pleading—Par. 62; Damages—Par. 80.
    The allegation in a petition that the defendant has recorded against plaintiff’s property a privilege to which he is not entitled discloses a cause of action for damages.
    2. Louisiana Digest—Parties—Par. 11, 12.
    He who commits an illegal act and he who assists him in so doing are both liable in damages in solido, and are properly joined as defendants in one suit.
    3. Louisiana Digest—Pleading—Par. 67.
    An exception of “Lis Pendens” has no legal basis to rest upon when predicated upon the pendency of a prior suit in the same court as that on which it is pleaded.
    ON A REHEARING
    4. Louisiana Digest—Pleading—Par. 67; Reconvention—Par. 17.
    Under Art. 95 of the Code of Practice, as amended by Act 62 of 1918, an exception of lis pendens is properly urged when predicated upon the pendency of a prior suit based upon the same cause of action and filed in the same court as that in which the exception is pleaded. But such a plea is untenable when directed against a reconventional demand made in the first suit, and there filed long subsequent to the exception as pleaded in the second suit.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a damage suit for illegally recording in the mortgage office an illegal privilege and notice of a suit. There were two suits filed against two defendants. Exceptions no cause of action, misjoinder of parties, and lis pendens were filed by the defendants. There was judgment maintaining the exceptions and dismissing plaintiff’s suit.
    Plaintiff appealed'.
    Judgment reversed and case remanded for trial upon the merits and suits cumulated consolidated for trial.
    Hiddleston Kenner, of New Orleans, attorney for plaintiff, appellant.
    John Wagner, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit for illegally recording in the mortgage office an illegal privilege and notice of a suit.

The plaintiff alleged that she was the owner of two lots of ground in this City; that in May, 1919, she instructed the defendant to prepare plans and specifications for a building of a certain character that would not cost more than a certain sum; that the defendant delivered to her plans and specifications not at all in accordance with the instructions which plaintiff -had given him and such as would require a very much larger price to build than that contemplated by her; that she refused to accept said plans and specifications and did not make use of any of them and did not erect any buildings upon said lots; that on July 23, 1919, the defendant recorded in the mortgage office an alleged privilege against plaintiff’s two lots based upon a contract between plaintiff and defendant employing his services as an architect; that in December, 1922, the defendant recorded in the mortgage office a written notice that he had filed suit against the plaintiff on his claim against her for compensation for his services as architect under the alleged contract, and to enforce the privilege he claimed in his favor; that on January 6, 1923, plaintiff was notified that the defendant Moise had transferred all his rights in said suit, and all his rights in the alleged privilege to Charles A. Venus; that in November, 1922, Mrs.'Munholland agreed to purchase said two lots for $3554 cash; that the certificate from the mortgage office showed the recordation against said two lots of the alleged privilege and also the notice of the suit filed by Moise and the assignment to Venus; that by reason of said two inscriptions and the refusal of Moise and Venus to cancel them, the said Mrs. Munholland refused to accept the title to said two lots or to pay the purchase price; that by reason also of said two inscriptions plaintiff has been unable to offer for sale her two lots or to find a purchaser for the same for the reason that said two inscriptions operate as a cloud upon her title; that the recording of said alleged privilege and notice of suit, and the refusal to cancel the same are entirely without warrant of law and that in so doing the defendants were actuated by malice and an intent to injure plaintiff; that the action of the defendants has caused plaintiff damage in the manner following: that in negotiating the sale of her lots she employed a broker and was obliged to pay him $125.65, that the mortgage and conveyance and tax certificates cost her $10; that she suffered mental anguish to the extent of $250; and that she was deprived of profits she would have made from the sale of $250. She claims $635 damages in solido against Moise and Venus.

Moise excepted to the petition: “First, because same shows no right or cause of action; and further excepts that there is a misjoinder of parties herein; and further pleads lis pendens”; and he prays that these exceptions be maintained and that the suit be dismissed.

Defendant Venus, mutato mutandis, filed the same exceptions.

There was judgment maintaining the exceptions and dismissing plaintiff’s suit.

I.

If dedendant, Moise’s, claim entitled him to no privilege, and his suit to enforce that claim, conferred upon him no privilege, as alleged by plaintiff, then his act in recording the privilege and suit was unauthorized by law and consequently illegal. When his co-defendant acquired Moise’s claim and suit and asserted his right to a privilege and to the two inscriptions and refused to cancel them, he’ also committed an illegal act or at least assisted in so doing. C. C. 2324.

If it is true, as alleged, and which for the purpose of the exception we must assume to be true, that, by reason of these two inscriptions, a purchaser of the plaintiff refused to accept title and to pass the act of sale to the lots, these defendants have injured plaintiff, and to repair said injury plaintiff has an action in damages against defendant.

The petition therefore does proclaim aloud a right and a cause of action in the plaintiff.

II

Those who join in committing an illegal act are liable in solido and are properly joined as defendants. C. C. 2324, Planters vs. Monroe, 52 A. 1243.

In Cline vs. Rrd., 41 La. Ann. 1040, 6 South. 851, it was said:

“It, (the liability) is founded on fault * * * and constitutes the act an offense, or quasi offense, and the obligation of participants solidary. In all such cases the right of the plaintiff to join in one suit, all parties to the reprobated act, may be regarded as elementary,” and on p. 1041:
“All of these cases serve to show why the policy of the law should be in favor of permitting the joinder of all parties in one suit who are charged with participation in an offense or quasi offense, whereby damage results, and whose obligations are averred to be in solido, reserving their rights to sever on the trial.” •

III

In order to plead Lis Pendens “the second suit must be brought before two separate courts” C. P. 94, 335 22.

In Saint vs. Martel, 126 La. 245, the court said:

“An exception of ‘Lis Pendens’ has no legal basis to rest on, when predicated upon the pendency of a suit in the same court as that in which is pleaded. The prohibition is against the bringing of the same action ‘before two separate courts’ of ‘concurrent jurisdiction’. Quoting Bogart vs. Jean. Bte. Rils, 8 La. Ann. 55; State ex rel. Bier vs. Burke, 37 La. Ann. 435; Thompson & Co. vs. Gosserand, 131 La. 1056, 60 South. 682; Cook & Laurie Contracting Co. vs. Denis, 126 La. 413, 52 South. 560.

The two suits in this case were both pending in the Civil District Court for the Parish of Orleans. Though composed of several “Divisions”, all the divisions together compose only one and the same court. Byrnes vs. Id., 115 La. 275, 38 South. 991; Black & Sons vs. Marks, 47 La. Ann. 107, 16 South. 649.

Therefore a suit filed in the Civil District Court for the Parish of Orleans and allotted to one division cannot be the basis of the plea of Lis Pendens in a subsequent suit filed in the same Civil District Court, though allotted to another division.

Nor can the subsequent suit be “dismissed” as was done in this case. It is only when the subsequent suit is filed, in the language of C. P. 94,335, “in a separate court” that the defendant is entitled to have the suit “dismissed”.

When the subsequent suit is filed in the same court, the only relief to which the defendant is entitled is to have the suit “stayed” or “cumulated” with the first suit. In the case, Saint vs. Martel, 126 La. 252, the court quoted with approval the language in Bogart vs. Rills, 8 La. Ann. 55:

“It is not, strictly speaking, a new action, rather a branch of the old, and ought to have been cumulated with it. The class of exception which prohibits two suits being brought before different tribunals, for the same cause of action, the parties being the same (see C. P. 335 S. 2) was obviously framed to shield defendants from the harassing effects of a multiplicity of suits before different tribunals, for the same cause of action by the same plaintiffs. But we cannot understand it to mean that a party is precluded from filing additional or supplemental petitions necessary, as in this case, for the preservation of what he may deem his rights, during the pendency of -the original action and to which he is forced by the act of the defendant himself. The petition in the present case, to be sure does not pray that it may be cumulated with the prior suit, but that, we consider does not impair the right of the plaintiff to have the conservatory order granted and damages allowed. Upon due proof, the court might ex-officio, have ordered the two to be cumulated without prejudice to the interest of the parties litigant, and we shall leave it to its discretion, and so ü might have been said in the instant case

If the plaintiff in this case had been denied the right to assert the claim in the present suit he might have lost his rights to relief by the prescription of one year.

In the case of State ex rel. Saint vs. Houssiere, 123 La. 853, the court said on p. 863:

“In all cases where justice requires that a cause should remain in abeyance until another cause involving the right of the parties pending in the same court or in another is finally disposed of, a staying order is the proper order to enter and not an order dismissing the cause, Article 94 of the Code of Practice provides for such a stay order in the case where a defendant sued in two courts of concurrent jurisdiction has by answering disabled himself from pleading lis pendens.
“A stay order is used in all cases where a conflict of jurisdiction might arise between courts of concurrent jurisdiction because of the previous possession of one court of the subject matter of a litigation renewed in whole or in part of another court.”

We think the ends of justice will be best subserved by cumulating this suit with the prior one between the same parties.

It is therefore ordered that the judgment herein be reversed and annulled, and it is now ordered that this case' be remanded for trial upon the merits and that it be cumulated and consolidated with and be tried at the same time as the case of Abraham H. Moise vs. Louise A. Weems, No. 129,013 of the Civil District Court for the Parish of Orleans, Division “C”; the costs of the district court to await the final judgment in those two cases consolidated and the costs of appeal to be paid by the two defendants herein, Abraham H. Moise and Charles A. Venus in solido.

Judgment reversed:

ON REHEARING

BELL, J.

In the judgment rendered in this matter, by this court, on November 2, 1925, the judgment of the trial court maintaining the exception of lis pendens and dismissing the suit was reversed and set aside upon the ruling made in Saint vs. Martel, 126 La. 245, and other authorities cited by us, to the effect that “an exception of lis pendens has no legal basis to rest on, when predicated upon the pendency of a suit in the same court as that in which it is pleaded. The prohibition is against the bringing of the same cause ‘before two separate courts’ of ‘concurrent jurisdiction’.”

Such was the law consonant with the provisions of Art. 94 of the Code of Practice as it' then read. However, our attention had not been called at the previous hearing of this case, nor had we then considered the present provisions of Art. 94, as amended by Act 62 of 1918, in the light of which amendment the ruling in the case of Saint vs. Martel can no longer obtain. Under the amended Article, an exception of lis pen-dens is now well pleaded where a plaintiff urges the same cause of action in two separate suits brought before the same or separate courts. Despite the above rule of procedure, we adhere to our former judgment regarding the aforesaid exception for additional and . different reasons, however, than those previously assigned.

At the rehearing of this case, by agreement of all parties, the record in the case of Moise vs. Weems, No. 129,013 of the Docket of the Civil District Court for the Parish of Orleans, was filed in this court and made part of the record in the instant' case now on appeal. It appears from the record now offered that Moise, one of the defendants in the case now on appeal, filed suit on October 23, 1919, against Miss Louise A. Weems, the present appellant, claiming certain fees due him- as architect under contract of employment. To this suit upon contract, Miss Weems pleaded, on November 19, 1919, certain exceptions, which were not considered by the trial court until June 18, 1924, and which were then referred to the merits. On July 10, 1924, Miss Weems filed an answer coupled with a demand in reconvention' for damages which she claimed had been suffered by her because of the illegal recordation by Moise of an alleged lien, and because of further recordation of notice that he, Moise, had filed suit against Miss Weems upon the aforesaid contract.

The suit now on appeal was instituted on June 12, 1923; it involves an action ex delicto, predicated upon the same cause of action and the same averments as pleaded in the reconventional demand filed by appellant in the suit of Moise against Weems. On June 30, 1923, Moise1 filed the exception of lis pendens now under consideration.

It is evident from the chronological dates above narrated that the reconventional demand in the first suit was not filed until nearly two years subsequent to the filing of the exception of lis pendens in the second or present suit. The argument of counsel for defendant and appellee that the exception was directed against the reconventional demand in the first suit, is therefore untenable.

In any event, the first action is one ex contractu, while the second is one ex delicto. The two suits do not present the same cause of action, nor is the respective plaintiff and defendant in each suit the same plaintiff and defendant in both suits. No such situation is contemplated by Arts. 94 and 335, Par. 2, of the Code of Practice.

We think now, as previously, that the ends of justice will be best subserved by cumulating this suit with the prior one between the same parties.

It is therefore ordered that the original judgment.of this court be reinstated as the final judgment in this matter.


text:
    No. 9790
    Orleans
    MARY MOMAN, WIFE OF JAMES CARTER, v. NATALE MAESTRI, Appellant
    (October 5, 1925, Opinion and Decree.)
    (November 2, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Landlord and Tenant —Par. 65, 66.
    A lessor guarantees the lessee against all the defects of the leased premises even in case it should appear he knew nothing of the existence of such defects and he is bound to indemnify, the lessee for any loss resulting from those defects.
    2. Louisiana Digest—Evidence—Par. 344.
    An injury being proven, plaintiff must be believed as to the manner of its happening in the ábsenee of any other reasonable hypothesis to account for it.
    Appeal from the Civil District Court, Div. “G”, Hon. Sam LeBlanc, Judge.
    This is a suit for damages against the landlord, caused by plastering falling from the ceiling and injuring the tenant, of leased premises. The case was tried before a jury which failed to agree. Upon being submitted to the judge, judgment was rendered in favor of plaintiff. Defendant has appealed and plaintiff has answered praying for an increase of the judgment.
    Judgment affirmed.
    P. S. Normann, of New Orleans, attorney for plaintiff, appellee.
    Woodville and Woodville, of New Orleans, attorneys for defendant, appellant.
   OPINION

CLAIBORNE, J.

This is a damage suit by a lessee against her lessor.

Plaintiff averred that on November 27, 1922, she was occupying the premises No. 1549 Iberville Street owned by the defendant; that about eight o’clock in the morning while she was down on her knees scrubbing the kitchen floor a large section of the plastering fell from the ceiling and struck her upon the middle portion of her back causiñg her serious internal injuries; that she remained in bed nine weeks under the constant care of her physician until discharged January 31, 1923; that after the accident she spit blood for sixteen days as the result of her injuries; that prior to the accident she maintained a large rooming house, that since the accident she has been unable to do the work necessary, and as a consequence has lost her business; that the defendant was informed of the dangerous condition of the plaster and promised to repair it and assured the plaintiff there was no danger.

Plaintiff itemizes her damage as follows: Permanent disability and suffering $5000.00

Mental suffering __________________________________ 2500.00

Loss of business __________________________________ 2500.00

$10,000.00

The defendant admitted that he was the owner of the property, and that the plaintiff occupied the same as tenant, but denied all the other allegations of the petition.

The case was tried before a jury. After the exhaustive and learned charge, the jury failed to agree by the required majority. The case was then submitted to the judge who rendered a judgment in favor of the plaintiff for $500.00.

The defendant has appealed. In this court the plaintiff has prayed for an increase of the judgment to the amount claimed in her petition.

The plaintiff in this case and all her witnesses are colored people. Their testimony is a series of exaggerations, contradictions of themselves and of each other. Among the exaggerations is the statement made by plaintiff that after the plaster fell upon her she spit blood for sixteen days, she “could not say the quantity but it was a half of a bucket of blood” during the first two days and on the following days “a basin and a half or a basin full until the doctor cheeked it”. One of her witnesses says she was “bleeding blood”. The doctor who treated her for several days immediately after the accident was not examined as a witness. The doctor who was called in for a few days after the accident testified that she began to spit blood only on a day or two after he was called in; in fact the first visit he didn’t think there was anything serious; he did not notice anything unusual about her condition.

One fact however seems to be established and admitted that is that the plaster in the kitchen fell. The plaintiff testifies to that. She is- corroborated by several witnesses on her behalf and by a witness for defendant William Morgan.

There was a weak attempt made to show that the fall of the plaster was caused by a contractor employed by defendant, Ceasar Maestri, to do calcimining upstairs allowing a heavy board to fall upon the flooring upstairs and thus loosen the plaster, so as to make it fall. But the testimony to the effect that he was a contractor is not sufficient. If therefore the fall of the plaster was caused by the plank, it was done by an employee of defendant for whose negligence he is responsible. C. C. 2320.

We think it also proven that the plaster fell upon plaintiff’s back somewhere below the left shoulder blade. »The plaintiff swears to it. She is corroborated by the testimony of Dr. Gilbert who says that he attended her for a contusion and swelling upon her. back near the left shoulder blade. In the absence of any other reasonable hypothesis to account for the contusion the plaintiff must be believed. Simmonds vs. Southern Rifle Club, 52 La. Ann. 1114, 27 South. 656; The State ex rel. Margaret Matt and Husband vs. Rightor, Judge, 37 La. Ann. 843; Boynton vs. Equitable Life Assurance Soc., 105 La. 202, 29 South. 490; Buechner vs. City of New Orleans, 112 La. 603, 36 South. 603;. Succession of Landry, 114 La. 829, 38 South. 575; Lazarus vs. Friedrichs, 125 La. 619, 51 South. 663; Castilie vs. Cormier, 144 La. 640, 81 South. 210.

The last question is the amount of the injury. The testimony of Dr. Gilbert is that he treated the plaintiff at first for a contusion and swelling and afterwards for an affection of the heart; that the blow that the plaintiff received did not usually affect the heart or cause spitting of blood; that it might however develop or reveal a pre-existing condition.

John Dufrechon collector for defendant, says that he called upon the plaintiff once a month for more than two years for the rent, that he “mostly” found her in bed and that she told him she suffered from her heart or from indigestion.

Thomas Reid, a colored witness for plaintiff, painter and plasterer, testified that the plaster that fell was three to three and a half feet, “it could not .be less than 2 yards or two yards, I didn’t measure it”, and the ceiling was 14 feet high, he thinks.

Thomas Alexander, a West Indian, a plasterer hired by Reid, says that the ceiling was 14 feet high; he measured it, and the .size of the plaster that fell was two to two and three-quarters yards; he thinks the plaster that fell would fill about three quart buckets and that it ought to weigh ten pounds a_ bucket or a total of thirty pounds.

On the other hand, M. Shaddinger, a contractor and builder for the last thirty years, a student of architecture for three years and a half in Tulane, testified that the plaster that fell in the kitchen was of very light material composed of hair, lime and sand; that he measured the size of the plaster that fell; that the patch was necessarily made larger for the purpose of the repairs; that the patch as repaired was 21 inches, not quite three square feet; he actually weighed a quantity of plaster equal to that which was replaced, that it weighed five pounds and four ounces.

The size of that which fell was smaller and lighter.

The size of the plaster as represented on the photograph corresponds with his measurements; that is made certain by the number of laths and the distance betwe'en each lath as shown by the photograph. He also measured the ceiling which is twelve feet 6 inches high.

We have therefore a weight of about five pounds, covering a surface of 20 inches, falling 12‘feet six inches, and causing a contusion about four inches square followed by a disturbance of the heart and a spitting of blood. The plaintiff was retained in her bed as a precautionary measure. Her doctor says that the blow did not produce the heart trouble or the spitting of blood any more than a blow upon the chest would have produced; but that there must have been a predisposition on the part of the plaintiff.

The defendant’s collector testified that she had admitted as much to him. Dr. Hudson who first examined her and her husband were not examined as witnesses. This is a circumstance against the plaintiff.

The plaintiff was detained in bed about twelve weeks. The judge allowed her five hundred dollars. We think the judgment should be neither increased nor decreased.

Her claim for loss of business was not sustained. Her rent was $45 per month, and her income from twelve roomers was $35 per month a loss of $10 a month.

She did not leave the house on account of the accident, but was notified to vacate four days before the accident.

The accident occurred on November 27th and she was evicted on December 15th next. There is no evidence of what she did after-wards.

Judgment affirmed.