text:
    No. 2537
    Second Circuit
    JOHN M. COMEGYS v. SHREVEPORT KANDY KITCHEN FRED MARTEL, Intervenor
    (March 11, 1926. Opinion and Decree)
    (April 10, 1926. Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Landlord and Tenant —Par. 32, 33.
    The law creates a presumption of a continuance of the lease only in case the landlord permits the tenant to occupy the premises for one week subsequent to the expiration of .the old lease.
    2. Louisiana Digest—Chattel Mortgages— Par. 4.
    Under the provisions of Section 4 of Act 198 of 1918 the “Chattel Mortgage Law”, a chattel mortgage is a lien superior in rank to any privilege or lien arising subsequently thereto.
    3. Louisiana Digest—Landlord and Tenant —Par. 111.
    Notwithstanding the provisions under Article 2689 of the Civil Code the chattel mortgage placed upon the property of the tenant during the existence of a lease will be superior to any privilege of the landlord for reht arising after the expiration of the lease even though the property of the tenant is not moved from the leased premises.
    4. Louisiana Digest—Landlord and Tenant
    —Par. 32, 33, 111; Chattel Mortgages
    —Par. 4.
    The reconduction of a lease from month to month after expiration of the term of the lease creates a new landlord’s lien which is primed by a chattel mortgage of the tenant during the existence of the lease.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    Action by John M. Comegys against the Shreveport Kandy Kitchen. Fred Martel intervened.
    There was judgment for plaintiff and the intervenor appealed.
    Judgment affirmed in part and reversed in part.
    Dickson and Denny, of Shreveport, attorneys for plaintiff, appellee.
    Herndon and Herndon, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

The issues in this case were submitted upon an agreed statement of facts as follows:

“On February 27, 1924, the Shreveport Kandy Kitchen, Germaneous F„ Eltife, owner, being indebted to Fred Martel, gave him a chattel mortgage on all of the fixtures of the candy kitchen located at 719 Texas street, Shreveport, Louisiana, for one thousand, one hundred and 00-100 ($1100.00) dollars, which was duly recorded, at which time the property mortgaged was in the premises leased from Comegys at a stipulated price of two hundred and twenty-five and 00-100 ($225.00) dollars per month, under lease which expired on the 1st of January, 1925, since which time it has been occupied from month to month. Martel having intervened in the suit claiming to be paid by preference out of the proceeds of the sale of the goods seized covered by his mortgage.
“The question presented to the court is, whether or not, the mortgaged property being in the leased premises at the time the mortgage was given and the lease having expired on January 1, 1925, Martel’s chattel mortgage outranks the lessor’s lien for rent accruing since the termination of the lease on January 1, 1925.”

The district judge, in a written opinion, said:

“The sole question presented to the court is whether the lessor’s lien prevails over the mortgage, or the mortgage over the lessor’s lien.
“There is no doubt but that the lessor’s lien primed the mortgage for any rent that might be due prior to January 1, 1925, for at the very moment the chattels were placed in the leased premises, the lessor’s lien attached for all amounts that might be due under that particular lease. See Youree vs. Limerick, 157 La. —, (39), 101 So. 864, dated January 3, 1925.”

There can be no dissent from the proposition of law thus stated, for the jurisprudence on that point is settled.

But, our learned Brother of the district bench went further and" held that—

“Under Article 2689, when two parties enter into a contract of lease for a definite term, they do so with a full realization (legally speaking) that the law writes into that very lease the provision that that very lease shall continue in force and effect, after the expiration of the term agreed on, for an indefinite time, saving to the parties the right to put an end to it on the expiration of any month. This being true, then the very moment the chattels are placed in the leased premises under the term lease, the lessor’s lien attached not only for the term specified in the lease but for an indefinite term thereafter. And one taking a chattel mortgage on the property in the leased premises, during 'the existence of the term lease, is legally bound to know that the lessor’s lien rested against the same property for whatever rent might become due in the future so long as the lessee remained in the same premises without executing a new lease.”

Stated in different language, what the district judge held was, that while it is true in the instant case that the conventional lease between the parties came to an end on December 31, 1924, yet when the lessee was permitted to continue his occupancy of the premises under a month to month lease, the full time of his possession under the reconduction for month to month lease was a continuation and extension of the old conventional lease and became part of it, and that as a matter of law there was no break in the old lease; and that therefore the lessor’s lien primed the privilege resulting from the execution and recordation of the chattel mortgage, not only for all amounts which became due for rent to the end of the conventional lease but also for all amounts which became due thereafter while the lessor occupied the premises under the month to month lease.

We cannot assent to that holding.

The convention’al lease expired at midnight on December 31, 1924, and at that moment all the right and privilege of the lessor under that lease expired also, except for the rent which became due under it.

One moment after the conventional lease expired there was no lease on the property and the landlord had no privilege on the property then in the leased premises, except for the payment of rent already accrued.

The lessee’s occupation of the premises thereafter under reconduction constituted a new lease for each month. Whatever privileges the landlord had on the chattels in the premises for his rentals under the reconducted or new lease accrued subsequently to the expiration of the old lease.

But it is contended, and'was so held by the district judge, that there was no break in the lease and that the old lease was continued by reconduction.

Article 2689 of the Civil Code provides:

“If the tenant either of a house or of a room should continue in possession for a week after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued, and he cannot be compelled to deliver up the house or room without having received the legal notice or warning directed by Article 2686.”

There is therefore no' tacit reconduction of the lease unless the tenant is allowed to remain in the leased premises for one week after the termination of the lease. The law creates a presumption of a continuance of the lease only in case the landlord permits the tenant to occupy the premises for one week subsequent to the expiration of the old lease. It therefore follows that during the period of the week immediately following the expiration of the lease the landlord could have evicted the tenant without notice, for the Code provides that notice must be given only if the lease tenant remained a week, and the tenant could, during the same period of time, vacate the premises without notice.

There is no presumption of continuance of the lease unless the landlord permits the tenant to remain a week. During that' week there is no tie, either conventional or legal, between the landlord and the tenant.

In the case of Johnson vs. Meyer, 36 La. Ann. 833, the court said:

“The evidence is uncontradicted that the lease expired on the 30th of September and the landlord’s right to re-entry was absolute, unless he permitted the tenant to remain for a week without opposition, which he had not done.”

In the case of Bowles vs. Lyon, 6 Rob. 262, the court said:

“When, therefore, the lease of a house for a given time expires, the landlord may, at any time within one week, expel the tenant without giving him any notice, and the tenant, in like manner, may quit the premises without notice to the landlord, but if the latter suffer him to hold over for a week, then the tenant holds for one month under Article 2655 (2684) at the previous rent and can only be expelled by the fifteen days’ notice required by the following article of the Code; and he, on the other hand, can quit only on giving a similar notice to the landlord. Such appears to us to be the only effect of a tacit reconduction, under the articles of our code.”

In the case at' bar, the conventional lease expired on December 31, 1924. For a period of one week immediately thereafter there was no lease—the old one had expired and there was no presumption of a continuance under Article 2684 of the Code. There was therefore no tie, either legal or conventional, between the parties during this time.

During the pendency of the old lease the lessee granted a chattel mortgage on his property then in the leased premises. Under the law this property was subject to the lessor’s privilege for all rent which might become due under the lease then in force and primed the privilege arising from the execution and recordation of the chattel mortgage. But, under the language of the statute (Act 198 of 1918, page 373, section 4) the lien in favor of the chattel mortgage shall be superior in rank to any privilege or lien arising subsequently thereto”.

All rents due under the conventional lease were paid. The lessee was permitted to remain in the building by the lessor and he occupied it from month to month. The amount due the landlord in this case •is for monthly rentals for the building for the months of March, April, May and June, 1925. These amounts became due more than two months after the old conventional lease had expired and the lessor’s Hen and privilege arose only when the amounts became due.

All the obligations of the lessee under the old conventional lease were satisfied by the payment of the rent by him. Thereafter the chattels of the lessee in the leased premises were released from the lessor’s lien arising under the contract. At the end of that lease, on December 31, 1924, and upon the payment of all rentals due thereunder and the release of the property from the lessor’s lien, the lien under the chattel mortgage immediately attached as the first privilege and primed the lessor’s lien and privilege for rent which became due thereafter.

But it is contended, and the District Court so held, that the lessee’s occupancy of the premises after the expiration of the old lease had the effect of continuing the conventional lease in full force and effect and that there was no break in the lease and that the lessor’s privilege for the rentals accruing subsequently primed the lien of the chattel mortgagee.

We think the court erred in so holding.

The tenant continued to occupy the premises after the expiration of the lease without objection on the part of the landlord. There was, therefore, a tacit reconduction of the lease. This tacit reconduction created a new contract and a new obligation.

In the case of Goheebo vs. Stanby, 1 La. Ann. 17, the court held that a tacit reconduction of a lease is for only the current month and creates a new obligation.

In the case of Armstrong vs. Bach, 20 La. Ann. 190, the court held that where a tenant continued to occupy .the house after the expiration of the lease, there is a tacit reconduction of the lease by the month.

T'o the same effect, see:

Brown vs. Martin & Crenshaw, 9 La. Ann. 504.

Lafon vs. Dufrocq, 9 La. Ann. 352.

Murrell vs. Lion, 30 La. Ann. 255.

In Remedial Loan Society vs. Frederick Solis, et al., 1 La. App. 164, the Orleans Court of Appeal held that:

“Holding over after the expiration of each month creates a tacit reconduction from month to month and a new contract for each month.”

And, in 12 Orleans App. 218, the same court held that every continuation is a new contract.

In the case of Bowles vs. Lyon, supra, and other cases cited, the lease under re-conduction is spoken of as a new lease.

Under all the jurisprudence the continuance of a lease by reconduction is only from month to month and either party may put an end to it by giving fifteen days’ notice.

Therefore, whatever contract was created between the parties by the law in this case expired at the end of each month after January 1, 1925.

The lessee paid the rent for January and February and $150.00 on the rent for the month of March, 1925. Upon the payment of the rent the property was free from the lien in favor of the lessor. The lien under the chattel mortgage became paramount and primed the privileges arising subsequently.

The District Court held that the lessor’s privilege was superior to the lien in favor of - the chattel mortgage, and ordered the lessor paid by preference. The judgment, to that extent, must be reversed. In all other respects, it is correct.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed in all respects and particulars, except as to the rank of the lien as between the lessor and the chattel mortgagee, and, as to that, it is ordered, adjudged and decreed that the lien under the chattel mortgage in favor of Fred Martel, the intervenor, be and it is hereby declared to be superior in rank and to prime the privilege for rent in favor of the plaintiff, John M. Comegys, and that the claim of the said chattel mortgagee be paid by preference and priority out of the proceeds of the sale of the property mortgaged.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2599.
    Second Circuit.
    MOFFET v. CRUSADERS OIL PRODUCING COMPANY, INC.
    (April 10, 1926. Opinion and Decree.)

      (Syllabus■ by the Court.)

    1. Louisiana Digest—Master and Servant— Par. 154, 159.
    Under the Workmen’s Compensation Law of Louisiana damages for the weakening and disfiguring of the hand caused by the amputation of two phalanges from each of the third, fourth and fifth fingers of one hand, will not be allowed in addition to the compensation allowed by the law for the loss of the phalanges. The statute specifically fixes the compensation for injuries of the kind suffered by plaintiff, and the court is without authority to award additional compensation.
    Hardin vs. Higgins 0. & F. Co., 147 La. 453, 85 South. 202.
    Craft vs. Gulf Lumber Co., 151 La. 281, 91 South. 736.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    Action by John C. Moffet against the Crusaders Oil Producing Company, for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendant, appellee.
    STATEMENT OF THE CASE.
    Plaintiff had two phalanges of each of the third, fourth and fifth fingers of the left hand amputated by falling on the blade of an axe. He sued under the workmen’s compensation law for the loss of two phalanges from each of these three fingers and also for compensation for the disfiguring of his hand and the weakening of a physical function. He was awarded judgment for $600.00, payable in weekly installments of $20.00 each, with legal interest on each installment from its maturity until paid, the first installment being decreed due July 14, 1925, less a credit of $100.00 previously paid, being the compensation fixed by the act for the loss of the phalanges specified. Plaintiff appealed and asks that the judgment be increased, and insists that he is entitled to compensation during disability, not to exceed 300 weeks, as for an injury to and weakening of a physical function and for the disfigurement of his hand.
   REYNOLDS, J.

OPINION.

Plaintiff’s contention that in addition to the amount allowed him for the loss of two phalanges from each of the third, fourth and fifth fingers of the left hand he should be allowed compensation for the loss of a physical function is in direct conflict with the decision of the Supreme Court in the case of Craft vs. Gulf Lumber Co., 151 La. 281, 91 South. 736, in which the court, at page 286, says:

“The plaintiff has answered the appeal, praying for an additional allowance for 100 weeks for the permanent and serious impairment of an important physical function, but additional compensation is not allowable where compensation is allowed under other provisions of the statute.”

Plaintiff’s contention that he is entitled to compensation for the disfiguring of his hand, under clause (e) of subsection 1 of section 8 of the compensation law is in conflict with said clause, which provides:

“In cases not falling within any of the provisions already made, where the employee is seriously, permanently disfigured about the face or head, or where the usefulness of a member or any physical function is seriously, permanently impaired, the court may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in cases of specific disability above named, not to exceed sixty-five per centum of wages during one hundred weeks.”

Compensation for injuries of the kind plaintiff complains -of is fully provided for in clause (d) of subsection 1 of section 8 of the law, and hence plaintiff is not entitled to compensation under clause (e) above quoted.

The contention of plaintiff that the loss of two phalanges from each of the third, fourth and fifth fingers of his left hand is an insignificant, in jury as compared with the greater injury and greater incapacity from which he suffers outside of and beyond the loss of these phalanges, is in conflict with plaintiff’s own testimony that since the accident he went back to work and worked for the plaintiff eight days. He gives no explanation as to why he ceased working at the expiration of the eight days other than that his hand pained him, while in another portion of his testimony he states that he did not use his injured hand practically at all.

Plaintiff testified, pages 5, 6 and 7:

“Q. Then you don’t know, until you have tried, just how much you can use your hand?
“A. I went back to the Crusader Oil Co. and worked for eight days.
“Q. Six or seven weeks after you had . the fingers cut, you returned to work?
“A. Yes, sir.
“Q. You worked eight days?
“A. Yes, sir.
“Q. Your hand hurt while you worked?
“A. Yes, sir; I used the hand very little; it was impossible for me to use it.
“Q. You received no injury whatever, with the exception of those incurred on the hand?
“A. No, sir.
“Q. Those were the only injuries you received?
“A. Yes, sir.
“Q. Now, this injury is on the left hand, which cut off the two first phalanges at the joint of the fingers, with the exception of the index finger?
“A. Yes, sir.
“Q. Your thumb was not injured?
“A. No, sir.
■ “Q. And cut the skin of the index finger?
"A. Yes, sir.
"Q. Now, that has not been amputated?
“A. No, sir.
“Q. No part of the index finger was cut off?.
“A. No, sir.
“Q. Your index finger looks normal from the outside?
“A. Yes, sir.
“Q. There is no disfigurement on the nail of that finger?
“A. No, sir.
“Q. It looks as if it were perfectly normal as far as you can see?
“A. Yes, sir.
“Q. The palm of the hand was not cut at all?
“A. No, sir.
“Q. Your wrist was not hurt?
“A. No, sir.
“Q. Your injury was confined entirely to the cutting off of the part of the three fingers which you have named?
“A. Yes, sir.
“Q. With the exception of the time that you went back to work at the Crusader Oil Co. and worked eight days, you have not tried to do any work?
“A. No, sir.
“Q. Then you do not know at this time just how much you can do?
“A. Well, no, I could not do the kind of work that I was doing when I had my accident.
“Q. You mean that you will not have the use of the fingers?
“A. No, sir.”

Dr. S. C. Caldwell testified, page 13:

"Q. Please state what condition you found the hand?
“A. There is an amputation of the third, fourth and fifth fingers, at what we call the joint, that is, the first joint next to the hand, on those three fingers. The stumps are healed over across the tip end and is healed and that is a matter of importance, as it is not on the inner side, which would be right at the point or ball of the finger that would be used in picking up things. The tendons are all intact, and the nerve supply is intact and functioning.”
* * * *
“Q. What would you say as to the condition of the index finger?
“A. I think that the index finger is in a perfectly good condition and will function properly; of course there is a little weakness there, from disuse. There is a slight stiffness, but that is not due to joint involvement by this scar tissue, but disuse. The muscles of the forearm seem to be somewhat weak at this time, three months after the amputation, but he had free use of them and they will be restored; they will develop all right, 1 think.
“Q. You have heard the witness testify about the lack of strength in picking up objects; is that due to disuse of that arm?
“A. Yes; the disuse and nonuse; as you understand, when these fingers are amputated, the arm and hand are not used for quite a while, and by use will increase and develop the muscles in strength to where the grip will become better in those fingers than before they were amputated, and he will have this one and thumb to work with.”

From all of the evidence we are convinced that the judgment of the District Court is correct and it is accordingly affirmed.


author: ODOM, J. REYNOLDS, J.

text:
    No. 2508.

      Second Circuit.
    BYWOG v. LA-TEX COMMUNITY OIL COMPANY, INC.
    (February 8, 1926. Opinion and Decree.)
    (March 11, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant— Par. 160 (a).
    If an employee suing for compensation under the Workmen’s Compensation ■ Act No. 20 of 1914 by his own conduct, inactivity, and neglect after an injury, suffers a member of his body to become useless when with proper effort on_ his part, without unusual ' pain or suffering, it could have been restored, he cannot recover compensation for disability.
    2. Louisiana Digest—Master and Servant —Par. .159, 160 (b).
    Where there is total disability to an injured employee and also a serious impairment of a physical function due to an accident, he can recover under the’ Workmen’s Compensation Act No. 20 of 1914, Section 8, Subsection 1(b), for total disability during the period of disability and also for permanent impairment of a physical function under Section 8, Subsection 1(e), the compensation under Section 8, Subsection 1(e), beginning when that under Section 8, Subsection 1(b), ends.
    3.Louisiana Digest—Appeal—Par. 759.
    Clerical errors in the judgment may be corrected without a rehearing.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by Henry Bywog against La-Tex Community Oil Company, Inc., for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff, and defendant appealed.
    Judgment amended and affirmed.
    T. H. McGregor, of Shreveport, attorney for plaintiff,' appellee.
    R. B. Baker, of Vivian, attorney for defendant, appellant.
   ODOM, J.

This is a suit under the workmen’s compensation act. Plaintiff was employed by defendant at a weekly wage of $31.50. On May 6, 1924, while at work at a drilling rig, his left hand was caught between a block and the cables attached thereto, and three of his fingers on that hand—the forefinger, middle finger and ring finger—were badly crushed. Dr. Wren, who attended him and dressed his wound, and has since treated him, describes his injuries as follows:

“He had three broken fingers, crushed fingers, the ring finger, the middle finger and the fore finger. One of them, the fore finger, was a compound communated fracture, and the others were crushed. I could not diagnose them as fractures exactly, but they were crushed somewhat flat and the bones of the fore finger were badly broken up, and the skin broken on all the fingers, and especially the fore finger.”

Dr. Wren says that he removed some portions of the fractured bones, dressed the wound and put the fingers in splints. At the end of thirty days he removed the splints, and at that time the patient was not able to use his hand at all because the fingers were stiff. His plan was to loosen these joints, and he says that it appeared at that time that the plaintiff should be able to use his hand within a reasonable lsmgth of time, but that the fingers would not function and would remain stiff for quite a long time. He applied the massage treatment and instructed the patient to work them with his other hand and to try to get some motion in them. He said that the plaintiff had no feeling in his hand at first, but that with that treatment the fingers have gradually improved. Later on he gave him electrical treatment, which has caused them to improve further. He says that he has continued to treat plaintiff at intervals of about two weeks, the last treatment having been administered about two weeks before the trial, which took place on May 26, 1925, about a year after the accident.

He was asked how he classified plaintiff’s incapacity—-whether permanent or merely temporary. His answer was, substantially, that the trouble had been that he could not close his fingers, but that in his opinion the middle finger and ring finger would in time function normally,

“especially as soon as they are put to work”.

He says that plaintiff’s fore finger is pretty stiff and doubts if it will ever function normally, but thinks that it should function at least fifty per cent of normal and that “the others, I think, will function normally in the course of time”.

He was asked by the court how much time would be required, and he Said:

“Judge, that depends on what he does. This fore finger will remain stiff or one-half stiff permanently, and the others in about four months from now should function normally. It depends on how much he puts these other fingers to use in trying to make them function.”

Further questioned, he said:

“Why, he has a total disability to perform oil field work. He could do little light jobs.”

He states that he does not think plaintiff could work on a rig or could lay pipe line, and probably he could not pump, but that he could drive a team.

Dr. Wren’s testimony is that he has been disappointed in the progress towards recovery by plaintiff; he says that plaintiff’s hand is gradually improving all the time, and that the fingers all healed normally, but they did not get the good results expected as to the fore finger, which, he thinks, will remain stiff. He says:

“The injury to the flesh healed within thirty days, but the repair to bones is not nearly quite so fast. They are still tender and sore-.”

And he was asked:

“Do you mean to say by that, that that bone still needs some healing to recover to a normal condition?”

And he said:

“It does not, but the blood supply and the nerve supply is not normal.”

He says, further, that within ninety days from the date of the injury the bones had healed, except that plaintiff could not bend them. He advised plaintiff to use his fingers after the flesh and bones had healed, and to do some light work around the house, clearing up new ground, anything to - exercise the fingers, as that is the only method by which the circulation of the blood could be restored and the fingers brought back to normal; but whether plaintiff has followed his advice, he does not know, although plaintiff told him that he had done some light work.

In sum, Dr. Wren’s testimony is that plaintiff had three of his fingers badly crushed; that he was disabled totally for quite a while; that the fore finger is permanently stiff in the first joint and partially stiff in the second joint; that the other two fingers have healed perfectly, but that they were at the time of the trial still partially stiff, but that with proper use and exercise would function normally, and that there would be no disability so far as they are concerned.

He advises plaintiff to work in order to restore the blood circulation in these fingers, and it is his opinion that the hand with use will be normal, except the fore finger, Which, he thinks, will be only fifty per cent of normal. His testimony as to final results is as follows. He was asked:

“Isn’t it a fact that the question of its usefulness depends largely on the amount of use to which he puts it?”

And he said:

“That is true of the ring- and middle finger, but I don’t'think the forefinger will ever function very much more than it does at present.”

Dr. C. H. Pardue examined plaintiff’s hand twice, one a short time after the accident and also about the time of the trial. He finds a great improvement now. In describing the condition of plaintiff’s hand at the time of the trial, Dr. Pardue said:

“Well, the first finger, the first joint, seems slightly stiff—the first joint, the joint next to the end. Some function in the middle joint, I would say practically one-half.”
“Yes, sir, and in the middle finger it seems to be almost normal in the first joint, and pretty good also in the middle joint. I would say probably seventy-five per cent. Now, the ring finger seems to be about seventy-five per cent normal. That would be my estimate.”

He advised the plaintiff to go to work and use the fingers, and stated that unless they were used they would be permanently stiff, and states the reasons, but gives it as his opinion that with proper use the middle and ring fingers would have functioned normally, but he thinks that inasmuch as they have remained in a stiff condition so long they will probably never be normal.

The sum and substance, of his testimony is, that plaintiff had injuries to his hand about as described by Dr. Wren; that the flesh and bones -healed normally, except in the index or fore finger; that with proper use all along the middle and index fingers would have been restored to normal, but that now it is probable they will never be altogether normal; that the- index finger will always be stiff in the first joint and partially stiff in the second joint, and that this finger will never function more than fifty per cent of normal.

Both Dr. Wren and Dr. Pardue are of the opinion that an injury to the fingers, such as that suffered by plaintiff, should cause no permanent disability, provided the patient does what he should do to assist nature in its work, but that with non-use the joints will necessarily remain stiff. They point out that if the joint itself is injured there will be stiffness which cannot be overcome, but that there seems to be no injury to the joints of plaintiff’s fingers, except to the first joint in the fore finger.

Both these physicians advised plaintiff to work. Therefore we must assume that they see no reason why he should not do some work. In other words, there seems to be no reason to assume that the exercise of the fingers would cause such pain as to make it unreasonable to ask that he make use of them in such a way as to bring about their restoration.

Plaintiff says he does not use the hand because his fingers hurt. We have no doubt that he could not use his hand for a long time in doing heavy work. It would be unreasonable to suppose that he could. But that was never expected of him. He was advised to do only light work, which, in our opinion, he could have done.

We think he has failed deliberately to do that which he reasonably should have done to restore the function to his fingers, and that if there is now or was at the time of the trial any disability to the fingers other than the fore finger, it is on account of his willful neglect.

At one time Dr. Wren wrote to the insurance company about plaintiff’s condition and about the probability of his recovery, and in his letter he said, among other things:

“He (referring to plaintiff) thinks if he goes to work he might forfeit his insurance.”

And in explaining that letter he said, as a witness on the trial:

“I had urged him a number of times to get a job cleaning new ground or something like that, even though he did not earn but fifty cents a day at it, and that he would be earning that much, and at the same time he would be forcing that hand to work. And he has stated that if he went to work even for fifty cents a day he would probably forfeit his insurance.”

The testimony of both these physicians convinces us that it is their opinion that plaintiff has intentionally refused to work and neglected his. hand to such an extent as to gradually retard the progress of healing.

If an employee by his own conduct by his inactivity and neglect after an injury suffers a member of his body to become useless when with proper effort on his part without unusual pain or suffering it could have been restored, he cannot recover compensation for disability.

The plaintiff was totally disabled on account of the injury. Just how long he would have been disabled if he had done what was reasonably expected of him in order to restore his fingers, it is difficult to say; but we think under the evidence the period of total disability should be fixed at one year. Whatever disability remained at the end of that time to do work of a reasonable character is the result of plaintiff’s own neglect and unwillingness to do what he was reasonably expected to do in order to restore the usefulness of his fingers.

The defendant called several witnesses, who are skilled oil field workers and derrick men, who testified that they knew plaintiff personally and knew the condition of his hand, and that there was no reason why he should not do oil field work without pain and without inconvenience, and they further testified that if he wanted work in the oil fields he^ would have no trouble in getting it at a wage equal to that which he received prior to the injury.

However, there is unquestionably a permanent impairment of. the fore finger of the left hand. The first joint is stiff and the second joint is slightly so. It is slightly shrunk at one place and somewhat enlarged at another. But the condition of that finger is not such as to produce inability to do work of a reasonable character. He is therefore not entitled to compensation on account of disability beyond one year. But he is entitled to compensation under clause (e) of subsection 1 of section 8 of the statute, which provides:

“Where the usefulness of a member or any physical' function is seriously, permanently impaired, the court may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in cases of specific disability above named, not to exceed sixty-five per centum of wages during one hundred weeks.”

Act 43 of 1922, under which this suit was brought, provides that for the loss of the first or index finger an employee is entitled to sixty per centum of wages for thirty weeks, which, in this ease, would amount to $18.90 a week, or, for thirty weeks, $567.00.

In proportion to this we think plaintiff should have compensation at $3.00 a week during one hundred weeks, beginning on Hay 6, 1925, the date on which compensation for total disability ceases.

Plaintiff was receiving a weekly wage of $31.50. Eor the total disability period he is entitled to sixty per centum of that amount.

The proof shows that his medicine and doctors’ bills amounted to $214.50, for which amount he is entitled to judgment.

The defendant having paid him the sum of $540.00, is entitled to credit for that amount.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows:

It is therefore ordered, adjudged and decreed that the plaintiff, Henry Bywog, do have judgment against and recover from the defendant, La-Tex Community Oil Company, Inc., compensation at eighteen and 90-100 dollars a week for a period of fifty-two weeks, dating from the date of his injury, May 13, 1924; and compensation at the rate of three and 00-100 dollars per week during one hundred weeks, this compensation to begin on the date the other compensation ceases. These payments to bear interest at five per cent per annum from the date on which they were due; the defendant to have credit for the sum of five hundred and forty dollars already paid. All costs to be paid by defendant.

ON REHEARING

REYNOLDS, J.

Defendant calls our attention to the fact that our judgment allows plaintiff compensation at $18.90 per week, whereas the maximum amount allowable under Act 43 of 1922 is $18.00 per week.

Our judgment was based upon the Act of 1924 under which the maximum amount allowable is $20.00 per week; but the injury to plaintiff occurred before that act went ■into effect, and therefore the contention of defendant is correct. Our judgment therefore allowed plaintiff more than the law authorized.

However, it is not necessary to grant defendant a rehearing in order to correct this error. The error can be corrected without granting a rehearing.

It is therefore ordered, adjudged and decreed that the judgment heretofore rendered by us, herein be corrected so as to read as follows:

It is therefore ordered, adjudged and decreed that the plaintiff, Henry Bywog, do have judgment against and recover from the defendant, La-Tex Community Oil Company, Inc., compensation at eighteen and 00-100 dollars per week for a period of fifty-two weeks, dating from the date of his injury, May 13, 1924; and compensation at the rate of three and 00-100 dollars per week during one hundred weeks, this latter compensation to begin on the date the other compensation ceases. These payments to bear interest at the rate of five per cent per annum from the date on which they became due; the defendant to have credit for the sum of five hundred and forty dollars already paid. All costs to be paid by defendant.


author: ODOM, J.

text:
    No. 2551.
    Second Circuit.
    SAVAGE AND WIFE v. TREMONT LUMBER COMPANY, ET AL.
    (February 8, 1926. Opinion and Decree.)
    (April 10, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Railroads—Par. 58, 67.
    The fact that people repeatedly cross railroad tracks at a certain place where there is no crossing does not place any duty upon the railroad company to treat the place as a public crossing.
    2. Louisiana Digest—Railroads—Par. 68.
    Children who climb between railroad flat cars in order to effect a crossing at a point where a path crossed the railroad tracks, although they could have crossed easily at the public crossing forty feet away, are trespassers.
    3. Louisiana Digest—Railroads—Par. 60, 71.
    Where a railroad crosses a public road, which is used very little, at a flag station in a forest, there is no obligation upon the railroad company to keep a flagman or a lookout.
    4.- Louisiana Digest—Railroads—Par. 69.
    The railroad company owes no more duty to a child, a trespasser upon its property, than it owes to an adult under similar circumstances. It owes the child no duty except a negative one of not wantonly or maliciously injuring him.
    5. Louisiana Digest—Railroads—Par. 76.
    Flat cars which are used as regular equipment by the railroad company are not structures or machinery so attractive to children as to be an invitation to them to trespass.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Winn. Hon. F. B. Jones, Judge.
    Action by Thomas C. Savage and Wife against Tremont Lumber Company for damages for the death of their child.
    There was judgment for plaintiff, and defendants appealed.
    Judgment reversed.
    Julius T. Long and A. Leonard Allen, of Winnfield, attorneys for plaintiffs, appellees.
    Theus, Grisham & Davis, of Monroe, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff’s minor child, less than six years old, was killed by one of defendants’ trains at a flag station called “Ringwood” in September, 1924, and this suit followed.

Plaintiffs allege that defendants were grossly negligent in the handling of the train which killed their child.

Defendants, in answer, denied negligence and resisted liability, setting up that the child was killed through no fault of their agents or employees and that their train, at the time of the accident, was handled in the usual manner.

There was judgment in the lower court in favor of the plaintiffs for five thousand dollars and the defendants have appealed.

STATEMENT OF THE CASE AND OPINION.

The defendant, Tremont & Gulf Railway Company, owns and operates a line of railroad running approximately north and south through the Parish of Winn. On this line of railroad, south of Winnfield, there is a flag station called “Ringwood.” Passenger trains stop there only when flagged and freight trains only when they have freight to deposit. There is no regular depot there, but there is an open platform 32 by 16 feet, which has a shed over it, and which is referred to as the “depot.”

There are two railroad tracks—the main line and a side or passing track which runs parallel with the main line on the west side and within a few feet of it. The platform which is referred to as the “depot” is on the east side, and very near to the main line. These tracks are crossed at that point by a road for vehicles and pedestrians, which road runs on the north side and within four feet of the platform.

The side or passing track, referred to as near to and running on the west side of and parallel with the main track, branches off from the main line, according to the testimony and according to a plat filed by defendants, at a point about one thousand feet south of the crossing, and runs along north and connects again with the main line about four hundred feet north of the crossing.

At or near this crossing these tracks run through a cut about four feet deep.

The Tremont Lumber Company operates a saw mill somewhere on this line of railroad. It gets logs to supply this mill from the forests in the vicinity of Ring-wood, and for the purpose of bringing the logs from the woods to the railroad it has a logging or tram road branching off from the main line track on the east side about one thousand feet south of the crossing and running out into the forests.

The logs, as we understand it, are brought out on the logging train to the main line, and are carried over that line to the mill. When the logging or flat cars are unloaded at the mill they are brought back to Ringwood and placed on the side or passing track, as above described, and are picked up by the logging train and carried over the logging road to the woods to be loaded.

On the occasion of the accident there were eighteen of these empty flat cars on this side track, all south of the crossing, the north end of the north car being within a few feet of the public road.

The plaintiffs live on the west side of the railroad and on the south side of the dirt road or highway. Mr. Savage, the father of the child, runs a store or commissary, which is located about forty yards southwest of the crossing. The public school is located on the east side of the railroad track, and on the morning the child was killed it left its father’s commissary in company with another child to go to school.

Instead of these children crossing the railroad tracks at the road crossing, which was open and unobstructed at that time, for some reason they climbed up on one of these empty flat cars, which was standing still. Whether they got on the car next to the crossing or the one next to it, no one knows; but while they were on this car the defendants’ train, consisting of an engine and about fifteen cars, backed into the side track from the south in order to couple onto the eighteen empty flat cars standing on the main line south of and toward the south, the railroad track makes a slight curve to the right. Situated something like five hundred feet south of the crossing and on the west side of the track, there is a building called the “Feed House.” The engine, at the time of the accident, was between 1300 and 1400 feet from the crossing, and the track being curved, the Feed House was between the engineer and the crossing and he could not see it. The train, of course, struck the south end of crossing. Leaving the crossing and going about eight or ten car lengths from the the string of eighteen empty' flat cars, it caused the usual jarring and movement of cars under such circumstances. This jarring and movement of the cars caused the child to fall off between the end flat car and the one next to it. It fell to the track beneath the cars and was caught under the wheels and so badly injured that it died a few hours later.

Mr. .Ashcroft, the trainmaster, was then standing on the side track. When this defendants did not have a flagman stationed at the crossing at the time, nor was, any one stationed there to guard it.

According to. measurements made by plaintiffs’ counsel, the child was hurt forty-two feet and nine inches south of the road crossing at the time of the accident. He says he was watching the crossing and saw that it was open, but did not look to see if anyone was on the cars, and therefore did not see the children. In fact, no one saw them when they got on or when they fell off the cars. There were one or two persons, not employees of. the defendants, sitting on one of these eighteen flat cars, but they did not see the children.

Plaintiffs ground their case upon the proposition that it was defendants’ duty to have a flagman at this crossing, and that its failure to do so was negligence, and that if a flagman had been at the crossing he could and would have seen the children on the cars and could have averted the tragedy.

Counsel for plaintiffs cite and quote from a long list of authorities in support of their contention. We have read them all, but do not consider that any useful purpose would be' subserved in reviewing them here. In general, they state and apply the rule adhered to by all courts and as laid down by the text writers that it is gross negligence for a railroad to back its trains over public crossings in cities or towns or much frequented private crossings or through the public streets or other places where people and especially children are in the habit of congregating and playing to the knowledge of those in charge of the trains, without a flagman or a lookout stationed to guard such places, and, if at night, without having a bright light on the forward end of the moving train as a signal of danger, or without some other way of giving warning of the approaching train.

But a recognition of this rule would not avail plaintiffs in this case, for the reason, amongst others, that the defendant did not cause the death of the child by backing its train over a crossing. The child was not killed on a, crossing, nor. was the train moving over a crossing at the time. It was killed more than forty feet from the road crossing. There was a string of eighteen flat cars, all coupled together,' standing on the sidetrack, the end car standing near to, but not over the road crossing. The child had climbed up on one of these cars and was thrown off by the ■ sudden movement of the car, caused by the coupling 'of them to a moving train, as already described. When the coupling was made, this string of cars was caused to move north until the end car reached and possibly went into the road. But the child was not hit or killed at the road, 'but fell off the car and was killed more than forty feet south of it, at or near the place where, presumably, it got on the car.

From plaintiffs’ commissary, which is on the west side of the railroad track and southwest of the crossing, there is a pathway leading in the direction of the “depot.” This path strikes the four-foot cut in which the tracks are located a few feet south of the main road crossing, the exact distance being in dispute. Whether this path went on or across the- tracks in the direction of the “depot” is not clear. Counsel for plaintiffs argue the case as though it did, but plaintiffs’ testimony does not make that point clear, and defendants’ witnesses say, positively, that it did not, but only went down into the cut.

It would therefore appear that it is defendants’ theory that after reaching the cut over the pathway pedestrians turn north along the side of the passing track until they reach the main road crossing and cross there. That is the only inference to be drawn from their testimony, as to how and where pedestrians cross. The photographs offered in evidence, some by plaintiffs and some by defendants, do not show a beaten path across the tracks, but they do show the path from the commissary down into the cut.

But, conceding that this pathway did cross the railroad tracks, it is certain that it crossed only a few feet south of the main road crossing. The testimony does not show that if there was a crossing south of the main road crossing it was used to that extent as to stamp it with the character of a public crossing. It had never been recognized as such by the defendants. In fact, the train officials testified that they did not know that pedestrians crossed there at all, and the plaintiffs offered no testimony that they did. It was not defendant’s duty to keep this pathway open nor to guard it, and its failure to do so was not negligence, and especially in view of the fact that just a few feet north of there was a public road crossing recognized by every one and kept open by defendants.

It is plaintiffs’ contention that when the children got to the point where they saw this path across the track they found it blocked by the standing flat cars and attempted to cross the track by climbing over the cars, and that they had a right to do that, arid therefore their child was not a trespasser nor a licensee.

The child had no right and there was no necessity to try to cross the tracks at that point, for the public road crossing, which was only about forty feet to the north, was at the time open and unobstructed.

If, conceding, as plaintiffs contend, that pedestrians did cross the tracks on the path as described, it cannot be said that they had a right to do so, or that they had been invited by the railroad company to do so. Having crossed there without having been granted the right to do so, they were bare licensees.

The following from Elliott on Railroads, vol. 3, section 1647, page 494, is applicable:

“The fact that people repeatedly cross the tracks at a place where there is no public right of passage, does not necessarily entail upon the company any duty to treat the place as a public crossing, and the fact that there are numerous trespassers and the act is committed often does not itself relieve their presence uppn the track of the character of a trespass; but situations may arise from which the company ought reasonably to foresee danger, and in such cases it has been held that the company is not. absolved from ordinary care and precautions to prevent injuries. Yet, although the place is used repeatedly and frequently as a crossing with the mere silent acquiescence of the company, or with the knowledge and simply passive permission of the company, it would seem ordinarily at least that the traveler who uses it is at most a bare licensee, who takes his license with all its concomitant risks and perils, and, as a general rule, the company owes him no duty greater than that which is due to a trespasser. In order to impose upon the company the duty to treat a place as a public crossing, those who use the place as a crossing must either have a legal right to so use it,. or must use it at the invitation of the company, and ‘neither sufferance, nor permission, nor passive acquiescence’ is equivalent to an invitation.”

Plaintiffs’ serious and, as we understand it, their main contention, is, that it was the duty of the defendants to maintain a flagman and a lookout at the main road crossing, and that if such had been done the watchman could and would have seen the child on the car and could have averted the accident.

But this is not that character of crossing as to make it necessary, as a matter of law, for the defendant company to keep a flagman there; and under the circumstances surrounding this case and the movement of defendants’ trains, it was not necessary to station a lookout there.

The crossing is not in a village, town or • city, nor is it in a populous rural section, but is surrounded by forests. There is located there a turpentine distillery, at which three to six men are employed. There are some sixty or sixty-five men engaged in the plugging of the trees from which the turpentine is extracted, and in collecting it, but they are in the woods in remote sections, it not being shown that they live at or near this crossing. The company keeps several wagons in the woods to collect the turpentine and carry it to a central point, where it is taken into wagons and carried to the distillery at Ringwood.

Residing at or near Ringwood, there are two white families, the plaintiffs and one other. There are also eight or ten negro families who live within sight or within two hundred to three hundred yards of the crossing; four- or five of these families living on the east side and the others living on the west side of the track. These people presumably work at the still or in the forests. There is no evidence that any others live nearer than a half to three-quarters of a mile.

So far as the testimony discloses, there are very few school children who cross these tracks. Plaintiff operates a commissary for the company, but outsiders do some trading there. People living on the west side cross the tracks to get to the depot, but there is no evidence as to how many cross there. There is nothing about the depot to attract crowds, as passenger trains stop only on flag and freight trains only when they have freight for that point. There is no evidence that people congregate at the station and no evidence at all to show whether the public road, if such it really is, is used much or little by vehicles. It is a flag station in the forest. No one living there except those mentioned. A railroad company is under no obligation to keep a flagman at such crossings.

Hammers vs. Colorado Southern, etc., Co., 128 La. 648, 55 South. 4.

Dr. Emeric de Nux vs. La. Ry. & Nav. Co., No. 1662, Court of Appeal, 2nd Circuit, May, 1922.

Evansville & T. H. Ry. Co. vs. Clements, 70 N. E. 554.

We think the surrounding conditions and circumstances on this occasion were not such as to make it necessary for the defendant to ■ have a lookout at the road.

But even if it be conceded that it was the duly of the company to have a flagman or a lookout there, on that occasion, his duty was only to watch the crossing and not other portions of the track, under the circumstances shown by the evidence.

The rule is thus stated in 33 Cyc., page 784:

“In the absence of a provision in the statute specifically designating persons to whom the duty of giving crossing signals or warnings is due, it is generally held that such warnings are due only to persons on the highway using, about to use, or who have just used the crossing, and not to trespassers or licensees on the railroad tracks or right of way at places other than a crossing, nor to persons riding or driving along parallel to the railroad.”

This is the rule in Louisiana. ^

In the case of Hammers vs. Colorado Southern, Etc., Co., cited, supra, the court said:

“We do not think that the exercise of due care on the part of a railroad company requires it to look under its stationary cars, before moving them, to ascertain whether somebody is not sitting on one of the rails.”

And in Jordan vs. Grand Rapids Co., 70 N. E. 524, the court held:

“A railroad company is not required before moving cars on a side track to examine them to prevent injury to persons trespassing thereon.”

With reference to the duty which a railroad company or the owner of other property owes to children, the rule is stated in 33 Cyc., page 769, as follows:

“The above rule also applies tó children who are on the track. If the child is thereon as a licensee without invitation, the railroad company owes it no duty except not to wantonly or wilfully injure it, unless its presence is known to the railroad employees, in which case reasonable care should be used to protect it from danger. Likewise where the company has reason to expect that children will be on the track at a certain point, it is under the duty of using ordinary care to discover their presence and avoid injuring them.”

This rule is followed by our own Supreme Court.

See:

Fredericks vs. Ill. Cent. R. R. Co., 46 La. Ann. 1180, 15 South. 413.

O'Connor vs. R. R. Co., 44 La. Ann. 344, 10 South. 678.

In the case of Peters vs. Pearce, 146 La. 902, 84 South. 198, the children were attracted to a pile of logs and climbed thereon, and one of them moved the skid-pole, which caused the logs to roll down on the other one, and the court said:

“It appears that Blanchard Peters, the 6-year-old brother of the injured boy, was attracted to the pile of logs, climbed thereon, moved the skidpole, and caused the log to roll down upon his brother, Garland, aged 4y2 years.
“The child Blanchard may not have been a trespasser, yet the owner of the property was under no duty to him to keep his premises safe; and the fact that the child was an infant cannot have the effect of creating a liability where none would have existed in the case of an adult under similar circumstances. Defendant owed the child no duty except a negative one of not wantonly or maliciously injuring him.”

See, also: Alabama Great Southern Ry. Co. vs. Moon, 22 Sou. 900 (116 Ala. 642).

We do not think the railway company was negligent in coupling its cars as it did, nor do we think it had reason to suppose the child or any one else would attempt to cross its tracks by climbing over a stationary car only a few feet from an open crossing.

We have not overlooked the general rule invoked by counsel for plaintiffs, that the owner of property cannot escape liability for injuries inflicted when he places thereon structures or machinery so attractive to children as to be practically an invitation to them to trespass merely because they had no legal right to be upon the property.

These flat cars were part of - defendant’s equipment and were used by them constantly. The usual place to leave them was on this side track, and they were familiar objects to all who lived or went there. They did not amount to traps on defendant’s premises.

Counsel for plaintiffs, in brief, say that the cases of Ryan vs. L. R. & N. Co., 146 La. 39, 83 South. 371, and Draiss vs. Payne, 158 La. 653, 104 South. 487, are not easily distinguishable from the case at bar.

But a reading of those cases will readily disclose that the conditions and circumstances as detailed therein are not at all similar to those in this case.

In the Ryan case, plaintiff’s child was injured while attempting to cross the principal street in the city of Baton Rouge. The child, with a companion, was racing up and down the square for an hour; the flagman saw them, but when the train approached he disregarded their presence and took no notice of their movements until it was too late to avoid the accident, stating that he thought they had more sense than to go on the track. The flagman was an epileptic to the knowledge of the defendant. The court held that the flagman was incompetent and that it was negligence for the defendant to place him in such a responsible position; that if the flagman had done his duty the train could have been stopped in time to save the child, and the court said:

“It may not be negligence per se for a train to be operated in the manner just indicated, through the streets of a populous city; but, when the same is done, every possible precaution should be taken to avoid accidents.”

In the Draiss case, a train was being backed over a crossing in one of the principal thoroughfares in the city of Shreveport at night while running in violation of a city ordinance requiring a flagman and light to be maintained there. The crossing was a dangerous one and was left unguarded, and the view of approaching trains from the south was obstructed by a hedge fence and the tower at the gates.

We, in common with all others, deplore the tragic and sad death of plaintiffs' child. But courts must rest their decision on the facts and the law and not upon sympathy.

The following quotation is taken from the case of Peters vs. Pearce, 146 La. 902, 84 South. 198, and is pertinent here:

“There is danger in dealing with the question of liability for injury to children with confounding legal obligations with those of sentiments which are independent of the law, and rest merely oh grounds of feeling, or moral consideration. While more indignation is felt towards an injury done to children than to injuries done to others, the law has not usually given them civil remedies on any such basis. Neither does it usually, if ever, impose any duty on strangers toward them, resting entirely on the fact that they are children. Strangers are not liable to children for negligence in carrying on their business beyond what would be their liability to others, as well as children, who are equally free from blame. Hargraves vs. Deacon, 25 Mich. 1.”

For the reasons assigned, it is therefore ordered, adjudged and decreed .that the judgment appealed from be avoided and reversed and plaintiffs’ suit dismissed at their cost.


author: WEBB, J.

text:
    No. 2273.
    Second Circuit.
    PARKER v. BAKER GASOLINE COMPANY, INC.
    (April 10, 1926. Opinion and Decree.)

      (Syllabus 5y the Editor.)

    1. Louisiana Digest—Pleading—Par. 81.
    The question of the right to amend a petition prior to the appearance of the defendant, by way either of exception or answer, is left entirely at large and within the discretion of the judge, since the law is silent upon the subject.
    2. Louisiana Digest—Pleading—Par. 112, 119.
    A petition which alleges that an automobile was being backed into the road when the collision occurred is not a material variance to evidence tending to show that the automobile had been backed into the road at the time of the collision.
    3. Louisiana Digest—Automobiles—Par. 4, 4 (a).
    One who backs into a street is required to use greater care than one who is driving on ¿ straight street, but if the collision is due to the negligence of a truck driving in the street, damages can be collected from him if plaintiff was not contributorily negligent.
    Appeal from the City Court of the City of Shreveport, Parish of Caddo, Hon. David B. Samuel, Judge.
    Action by Edgar T. Parker against Baker-Gasoline Company.
    Defendant filed a reconventional demand.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Herndon and Herndon, of Shreveport, attorneys for plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

On July 7, 1924, plaintiff filed suit against defendant to recover damages (repairs on an automobile) alleged to have resulted from a collision with a truck owned by defendant.

Plaintiff alleged:

“That on June 28, 1924, at about 3 o’clock p. m., out on the Mansfield road, within the Fourth Ward of Caddo Parish, Louisiana, at the Orange Cold Drink Stand, while your petitioner’s car was being backed into the road on his driveway * * * a truck belonging to said defendant ran into' his car * * * and damaged it * * *”
“That petitioner * * * was in no way to blame for said accident, which was due entirely to the carelessness and inattention of the operator or driver of said truck.”

On July 17, 1924, defendant filed an exception of “No Cause of Action,” which was argued and submitted on July 28, 1924.

On July 30, 1924, plaintiff filed an amended petition in which it was alleged that the truck, at the time of the collision, was being driven by one of the agents of defendant on the business and purposes of the defendant; which amended petition appears to have been allowed over the objection of defendant, but defendant did not reserve a bill to the allowance of the amended petition.

On August 4, 1924, the exception of no cause of action was overruled, and defendant, without reserving its rights under the objection to the amended petition, answered, denying negligence and alleging that the plaintiff was grossly negligent in backing his car upon the street, and reconvened for damages to the truck alleged to have resulted from the collision.

OPINION.

The defendant urges the following points for the reversal of the judgment.

The exception of no cause of action should have been sustained.

The evidence offered, and admitted over defendant’s objection, was at variance with his pleading, and should not be considered.

The evidence failed to establish negligence on the part of defendant.

Considering these questions in their order:

(1.) The basis upon which the defendant urges the exception is that the original petition failed to state a cause • of action, and could not be amended, and that the court was without authority to allow the amendment.

In Commercial National Bank vs. Smith, 150 La. 231, 90 South. 581, the court said:

“The question of the right to amend a petition prior to the appearance of a defendant, by way either of exception or answer, appears to be left entirely at large, and, since the law is silent upon the subject, we know of no reason why a plaintiff should not be allowed to amend in any respect that the judge finds that the interests of justice may require, whether it be to supply a cause of action where none has been alleged in the original petition, or otherwise. The law intervenes only after issue is joined and declares that thence forward an amendment may be made, ‘with leave of the court,’ provided ‘it does not alter the substance of the demand by making it different from the one originally brought.’ And the Code of Practice further declares: ‘Art. 357. The cause is at issue when the defendant has answered, either by confessing or denying the facts set forth in the petition, or by pleading such dilatory or peremptory exceptions, as he is bound to plead in limine litis, pursuant to the provisions of this Code.’ The exception of no cause of action is a peremptory exception which may be filed at any time, and its filing does not put the case at issue, and the same is true of the declinatory exceptions (C. P. 358); hence there are few, if any, cases to be found in which applications to amend have ever been denied because of the mere filing of an exception of no cause of action, and equally few where such applications have been granted when made after the exceptions have been maintained. Burbank vs. Harris, 32 La. Ann. 395; Hart vs. Bowie, 34 La. Ann. 324; Raymond vs. Palmer, 35 La. Ann. 276. We are therefore of the opinion that the supplemental petition was properly allowed.”

(2.) The plaintiff alleged that the automobile was being backed into the road, and on the trial, after one witness had testified on direct as well as on cross-examination that the automobile had been backed into the street and was standing in the road at the time of the collision, and another had testified to the same condition, defendant, on cross-examination, objected to the evidence as being at variance with the pleading.

The defendant cites in support of the objection Erwin’s Heirs vs. Bissell, 17 La. 92, and Succession of Dejan vs. Schaeffer, 40 La. Ann. 442, 4 South. 89, in one of which causes the plaintiffs were held precluded by' their judicial allegations in a former suit which had been the basis of a decree from subsequently taking a position to the contrary; and in the other, that plaintiff having alleged a fact from which certain legal conclusions would flow, could not prove, instead, another fact from which different conclusions would follow.

The variance here cannot be likened to that in the cases cited; the question to be determined in this case was, whether or not the plaintiff’s automobile projected into the street, and, if so, whether or not the driver of the truck should have observed the situation in time to have, avoided the collision; and whether or not the automobile was or was not moving could not necessarily affect the situation.

(3.) On the merits there were four witnesses who testified that the automobile was standing on the driveway projecting into the street an approximated distance of four and one-half feet, when the truck was at an approximated distance of half a block; that the driver of the truck could have seen the situation at such a distance as would have enabled him to have passed to the rear of the automobile, the street at that point being thirty feet in width; three of these witnesses state that after the collision the driver said, in substance:

“That he had not seen the automobile, that he was looking at a man down the street.”

The testimony of the driver, while vague, was in substance in conflict with the testimony of the witnesses for the plaintiff, and other testimony was offered by defendant as to the situation of the driveway from which the automobile backed into the street, which indicated that a building to the north of the driveway would obstruct the view that the driver of the truck had of the automobile; but this testimony does no indicate that the driver of the truck could not have seen the automobile in ample time to have avoided the collision.

It is contended that the plaintiff was negligent in backing the automobile from the driveway into the street, considering that the building at a short distance away would obstruct the view of the car backing out, of the truck driver approaching from the north.

The situation was such as required greater care on the part of the parties than would have been the case on a straight street, and where there were no obstructions (Southall vs. Smith, 151 La. 967, 92 South. 402), but the evidence does not indicate that there was any negligence on the part of the plaintiff, but we think it does show that the driver of the truck was not maintaining a proper lookout, and to this the collision is attributable.

The judgment is affirmed.


text:
    No. 2415.
    Second Circuit.
    FIRST NATIONAL BANK OF ARCADIA v. GANTT, ET AL.
    (April 10, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Bills and Notes— Par. 216, 219.
    Under Section 57 of the Negotiable Instruments Act No. 64 of 1904, the presumption is that the holder of a note acquired before maturity holds free from defects of title in prior holders.
    2. Louisiana Digest—Bills and Notes—Par. 225, 226, 227.

      In a suit for the collection of promissory notes the mere statement of the defendants that the “plaintiff acquired the notes through fraud” should be excluded from the evidence on the objection of the plaintiff.
    3. Louisiana Digest—Bills and Notes—Par, 131.
    Where the makers of promissory notes did not claim to have been defrauded until after they were purchased by the plaintiff it was too late for them to defeat the collection of the notes by claiming fraud on the part of the plaintiff.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Claiborne, Hon. John S. Richardson, Judge.
    Action by First National Bank of Arcadia against G. W. Gantt, et ah, for the collection of two promissory notes.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    R. L. Williams, of Arcadia, attorneys for plaintiff, appellee.
    H. C. Drew, of Minden, attorney for defendants, appellants.
   WEBB, J.

On June 14, 1924, the defendants gave two promissory notes to the Safety Lock Company, each for the sum of two hundred and ten dollars, etc., payable, respectively, at ninety days and four months from date, which notes were acquired for a valuable consideration on June 22, 1924, by the plaintiff, and in this action plaintiff seeks to obtain judgment against the drawers for the amount of the notes, etc.

The defendants allege that the notes were obtained through fraud, in that the payee had sold them the right to sell certain commodities in a neighboring parish under representations that no one had “worked” the territory, when the fact was the territory had been “worked” and plaintiff had been advised of the circumstances under which the notes had been given and requested it not to purchase the notes.

Trial was had in the District Court and judgment rendered in favor of the plaintiff for the amount claimed, and defendants appealed.

OPINION.

It is conceded the presumption is that the holder of a note acquired before maturity holds free from defects of title in prior holders (Neg. Instr. Act, Sec. 57), but it is contended that the evidence showing the notes were given or obtained by the payee through fraud; the defendant must establish that it acquired the notes in due course (Neg. Instr. Act, Sec. 591), and the evidence being at least conflicting as to whether or not the defendant had actual knowledge of the defect in the title of the payee, that the judgment should be reversed.

The evidence indicates that the notes were given by the defendants in pursuance of a written contract which they did not see fit to offer in evidence, the stipulations of which they were not permitted to prove by parol, and the only evidence in the record as to whether or not the notes were obtained by fraud is the statement of defendants, admitted over the objections of plaintiff, that the notes were obtained by fraud.

We are of the opinion that the objection should have been sustained, and that there is no evidence in the record showing fraud, and the plaintiff must be held to be the holder of the notes free of any defect of title in the payee.

However, even if the evidence had established that the notes were given and obtained by fraud practiced upon the drawers, we are of the opinion the preponderance of the evidence establishes that plaintiff did not have knowledge of the fraud which may have been practiced upon the drawers and that the drawers did not claim to have been defrauded until after the date of the purchase of the notes by the plaintiff.

For the reasons assigned, the judgment is affirmed.


text:
    No. 2410
    Second Circuit
    WHITEHEAD v. MISSOURI PACIFIC RAILROAD COMPANY
    (March 11, 1926, Opinion and Decree)
    (April 10, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Railroads—Par. 86, 88.
    The law requires trainmen to maintain a lookout, and, therefore, the presumption of negligence under Act 70 of 1886 in cases where animals are killed by the railroad is not overcome by proof that the engineer alone was maintaining a lookout at a point where, because of a curve, the situation could be seen by the fireman but not by the engineer.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Caldwell. Hon. F. E. Jones, Judge.
    Action by Charles N. Whitehead against the Missouri Pacific Railroad Company.
    This is an action to recover the value of an animal killed by one of the trains operated by the defendant.
    The judgment of the district court was in favor of the plaintiff and defendant appeals.
    Judgment affirmed.
    Gus L. Alford, of Columbia, attorney for plaintiff, appellee.
    Hudson, Potts, Bernstein & Scholars, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

This is an action to recover the value of an animal killed by one of the trains operated by the defendant.

The judgment of the district court was in favor of the plaintiff and defendant appeals.

Judgment affirmed.

OPINION

The defendant urges that the judgment should be reversed, basing the contention upon the testimony of A. W. Johnson, called on behalf of plaintiff, and the engineer, who were the only witnesses who claim to have noted the situation just prior to and at the moment the animal was hit.

The scene of the accident was at Clark’s station, where the track north from the depot is straight until a cattle guard is reached, which catle guard is at the south end of a curve to the west.

The evidence of Johnson is in part as follows:

“Q. Mr. Johnson, what first attracted your attention to this accident?
“A. Well, I had just eaten my supper and had walked out on the front porch and I saw the cow grazing on the east side of the track. I saw the train coming and my first thought was to go and chase the cow off. .* * *
“Q. How long had she been grazing there?
“A. I don’t know.
“Q. Was she grazing there when the train came in sight?
“A. Yes, sir.
“Q. What distance was the cow from the rail?
“A. I judge five or six feet from the rail—right on the dump.
“Q. I will ask you to state, Mr. Johnson, how far the train was, if you know, from the cow at the time—how far they could have seen the cow before hitting her?
“A. I really am not in position to answer that question intelligently. * * * I know there is a curve just north of where this cow was struck up there.
“Q. How far north?
“A. * * * I would say three hundred and fifty yards. * * *
“Q. Then, when the engineer came around the curve he should have been able to see the cow standing oh the track?
“A. * * * j don’t know whether he could see around the curve or not; the cow was on the fireman’s side of the track; on the east side of the track.
“Q. When the train came in sight—you say it was three hundred yards from the cow to where the train came in sight around the curve?
“A. Something like that.
“Q. If the engineer could not see up to where the cow was could the fireman see?
“A. Yes, sir.
# :Jt sfc sf*
“Q. How far was the cow from the depot when she was struck?
“A. Oh, I would judge the distance from the depot was something like three hundred yards—just an estimate, of course.
“Q. How far was the engine fro’m the cow when the cow came up on the .track?
“A. I imagine a hundred or a hundred and twenty-five feet or something like that.

S. R. Addis, the engineer, said in part:

“Q. Mr. Addis, were you the engineer on the train at the time this cow. in question was killed?
“A. Yes, sir.
“Q. * * * When did you first see this cow?
“A. Coming into Clarks when I rounded the curve.
‡ ‡ ‡ ‡
“Q. Had you gotten out of the curve when you saw the cow?
“A. I couldn’t see it until I did.
“Q. How far had you got out?
“A. I wasn’t over two hundred and fifty feet from the cow when I got to where I could see it.
“Q. Is this track along this point on a dump?
“A. There is very little grade.
“Q. I am talking about the track built up—was it on a dump?
“A. That is grade, there was very little grade.
“Q. Did the cow go to your right or left?
“A. She went on the left. I didn’t see anything of it on the right.
“Q. When you first saw the cow what did you do? * * *
“A. I had already shut off for the station and I applied the brakes and sounded the whistle.
“Q. How fast were you going when you first saw the cow?
“A. Between twenty-five and thirty miles an hour.
“Q. You had your steam cut off and when you saw the cow you applied your brakes—in what distance could you stop that train?
“A. In about six or seven hundred feet.
“Q. You could not stop in less distance than that?
“A. By using the emergency brakes—between six hundred and fifty and seven hundred feet.
“Q. How far were you from the depot when you struck the cow?
“A. It was about seven hundred feet from where I struck the cow to the depot.
“Q. Do you know how many rail lengths it is?
“A. No, but I knew it was about three telegraph poles from the depot to where the cow was struck-—a little more than that, and I understand they are three hundred and fifty feet apart.
“Q. How far back up the road north from the cattle guard could an object be seen along there by either the fireman or engineer?
“A. There is a curve to the left and this curve comes right up to the cattle guard, and you cannot see anything until you get on a straight track with the engine, and I think this cattle guard is very little over three telephone poles from the depot.”

The defendant argues that as this evidence shows that the animal came upon the track at a distance of one hundred or one hundred and twenty-five feet from the locomotive, or such close proximity to the locomotive, and that the engineer was unable to stop the train before it struck the animal, that the presumption of negligence on the part of the defendant in such cases was rebutted and consequently the judgment should have been in favor of the defendant.

However, we think that the evidence shows the animal to have been grazing on the dump on which the track was laid, within a few feet of the rails, for some time before the engineer noted the situation, and that this situation was apparently dangerous is indicated by the testimony of Johnson, and of the engineer, who states that he applied the brakes and tried to stop the train, which was at a time when the animal was at a distance of about two hundred and fifty feet from the animal.

The evidence also shows that the engineer could not have seen the position of the animal while the locomotive was on the curve, and that the fireman, had he been on watch, would have had a view of the situation, while the engineer’s view was obstructed.

The law requires trainmen to maintain a lookout (Mongogna vs. Ill. Cent. R. R. Co., 115 La. 597, 39 South. 699), and we are of the opinion that the presumption of negligence is not overcome by proof that the engineer alone was maintaining a lookout at a point where, because of a curve, the situation could be seen by the fireman but not by the engineer.

The plaintiff, who arrived at the scene of the accident very soon after the animal had been struck ascertained, by counting the rails from the south point of the curve to the place where the animal was lying (which is indicated by the testimony of the engineer to have been at the approximate point where it was , struck), and from this point to the depot, that the respective distances were three hundred and ninety and three hundred and sixty feet, which, considered in connection with the testimony of the engineer,, as to the distance in which he could stop the train, and the absence of the fireman, indicates that the train was being rather driven into the station at a rate of speed where the skill of the enginer and the equipment of the train would have been taxed to avoid colliding with any object which may have been on the track between the curve and the depot.

It is true that the fireman has other duties to perform thanQthat of maintaining a lookout, but we are of the opinion that from the situation presented by the evidence in this case, his duty of maintaining a lookout was paramount, and that the collision was directly attributable to his neglect.

The judgment is affirmed.


text:
    No. 2469
    Second Circuit
    REEVES v. PYLE
    (March 11, 1926, Opinion and Decree)
    (April 10, 1926, Rehearing Refused)

      (Syllabus ly the Editor.)

    1. Louisiana Digest—Automobiles Par. 4, 4 (a).
    The driver of an automobile upon the highway has not the right of way; he must anticipate the use of the road by others, and he must, having regard to the rate of speed at which he is traveling (which must be reasonable, considering the place and the law) maintain such an observance of the road in front of him that he can avoid colliding with any vehicle which may obstruct the way, at the initial point of obstruction, when such obstruction is at such distance as to allow reasonable time to avoid collision, by the use of the means at his hands, without resort -to heroic measures.
    2. Louisiana Digest—Automobiles—Par. 8; Evidence—Par. 53.
    The burden of proof was upon the plaintiff to show that he drove the'wagon onto the left of the road at such distance from the automobile as that the defendant could have, in the exercise of ordinary care, avoided the collision.
    (Civil Code, Ar|. 2315. Editor’s note.)
    Appeal from the Eighth Judicial District Court-of Louisiana, Parish of LaSalle. Hon. F. E. Jones, Judge.
    Action by E. A. Reeves against Ed. C. Pyle to recover one thousand one hundred and twenty dollars damages.
    There was judgment for two hundred dollars and both parties appealed.
    Defendant only perfected the appeal.
    Judgment affirmed.
    A. D. Flowers, of Jena, attorney for plaintiff, appellee.
    C. W. Flowers, of Jena; Thornton, Gist & Richie, of Alexandria, attorneys for defendant, .appellant.
   WEBB, J.

In this action the plaintiff seeks to recover judgment in the sum of one thousand one hundred and twenty dollars, damages alleged to have been sustained in a collision occurring on the public highway between a wagon driven by plaintiff and an automobile driven by defendant.

Plaintiff alleges that defendant was at fault in that he was driving at an excessive speed and in violation of law and that he failed to maintain a proper lookout.

The defendant denied the allegations of negligence and averred that the, collision was attributable to plaintiff’s fault In driving his wagon in front of the approaching automobile at such close proximity that it was impossible for defendant to avoid the collision.

The judgment of the district court was in favor of the plaintiff in the sum of two hundred dollars, and both parties took orders of appeal, defendant alone perfecting the appeal.

Plaintiff did not answer the appeal.

OPINION

While the evidence is conflicting and vague as to some material facts, it establishes with unusual certainty the incidents and physical situation preceding and following the collision, from which it appears: That during the evening of February 25, 1925, at about 7:30 o’clock, the plaintiff had driven a wagon along the highway from Jena in the direction of Good Pine until he reached a point' opposite a private road leading from the left side of the highway to plaintiff’s "home where the wagon was stopped on the right side of the roadway; from thence the plaintiff drove onto the left of the road, and when the front wheels of the wagon were upon the left of the road, an automobile being driven by the defendant, from Good Pine in the direction of Jena, came into collision with the wagon, striking it on the left front wheel, breaking several spokes, and knocking the wagon aloose from the mule which was drawing it, and shoving the wagon a few feet along the road.

The testimony of the witnesses as to the speed of the automobile and the distance between the automobile and the wagon when the latter passed onto the left of the road, conflicts; the testimony of the witnesses for the respective parties being, in substance, as follows:

For plaintiff, Albert Whidden, who was on the wagon with plaintiff, and B. A. Poole, who was standing on the left of the highway near the point where the private road led off to plaintiff’s home, and plaintiff, estimated the speed of the car as excessive and above the rate of thirty-five miles an hour, the maximum limit fixed by law, and the distance between the automobile and the wagon at the time plaintiff started to drive from the right to the left of the road from two hundred and fifty to one hundred yards.

For defendant, C. S. Malcom and J. P. Walters, who were in the car with plaintiff, estimated the speed of the car to have been between twenty-five and thirty miles per hour, and the distance between the automobile and wagon at the time plaintiff started to drive from the right to the left of the road from thirty-five to forty feet.

The evidence of the defendant, however, shows that when the automobile was at the approximate distance of thirty-five or forty feet from the wagon the roadway was in fact blocked by the mule and wagon, and that, although the defendant applied the brakes, causing the car to skid, in an attempt to stop the car or look for an opening to the rear of the wagon, he was unable to do more than to reduce the speed of the car to eight or ten miles per hour at the moment of collision.

This clearly indicates that the roadway in front of defendant had been obstructed by the mule and wagon for a period appreciable in seconds before defendant noted the sitation, and that in fact defendant did not know when the wagon and mule first came upon the left of the road, and also that, had the defendant noted the situation earlier, say. when the distance the car and point of obstruction was one hundred and fifty feet, the collision would have been avoided.

The driver of an automobile upon the highway has not the right of way; he must anticipate the use of the road by others and he must, having regard to the rate of speed at which he is traveling (which must be reasonable, considering the place and the law) maintain such an observance of the road in front of him that he can avoid colliding with any vehicle which may obstruct the way, at the initial point of obstruction, when such obstruction is at such distance as to allow a reasonable time to avoid collision, by the use of the means at his hand, without resort to heroic measures.

The burden of proof was upon the plaintiff to show that he drove the wagon onto the left of the road at such distance from the automobile as that the defendant could have, in the exercise of ordinary care, avoided the collision; and while the evidence does not enable us to fix the exact distance between the wagon and the automobile when the former first appreciably obstructed the left of the road, yet in view of the evidence showing that the defendant and his witnesses did not know, and the plaintiffs witnesses estimates fixing this distance between two hundred and fifty and one hundred yards, we are of the opinion that the preponderance of the evidence shows that the distance was such as that the defendant, if he had been exereising ordinary care, would have been able to avoid the collision.

The judgment is affirmed.