text:
    No. 4095
    Second Circuit
    THOMPSON v. TARVER ET AL.
    (July 14, 1931. Opinion and Decree.)
    S. R. Holstein,- of Jena, attorney for plaintiff, appellee.
    White, Holloman & White, of Alexandria, and A. L. Burford, of Shreveport, attorneys for defendants, appellants.
   DREW, J.

Plaintiff sued under the Workmen’s Compensation Act of Louisiana (Act No. 20 of 1914, as amended) for the loss of an eye. The suit was brought against the Good Pine Lumber Company and E. L. Tarver.

The accident happened on September 11, 1929; suit was filed September 11, 1930; and citation was had on Tarver on September 13, 1930.

The Good Pine Lumber Company filed exceptions of no cause or right of action which, after trial had, were sustained, the evidence showing that the company under which Tarver was working was the Tall Timber Lumber Company, Incorporated, and not the Good Pine Lumber Company. E. L. Tarver plead the prescription of one year and, reserving his rights under said plea, answered, denying that plaintiff was injured while in the course of his employment.

The lower court rendered judgment overruling the plea of prescription and awarding to plaintiff judgment as prayed for for the loss of an eye. Prom this judgment defendant has appealed. Plaintiff did not appeal, therefore, the case, in so far as the Good Pine Lumber Company is concerned, is not before us for consideration.

Plaintiff was employed by defendant Tarver to make cross-ties for the Tall Timber Lumber Company, Inc., and while at work making the said ties, a chip flew up and struck him in the eye, from which injury he finally, some ten or eleven days later, completely lost the sight of the eye. Defendant attempted to show that the injury to the eye was caused hy a chip from stovewood that plaintiff was cutting at home, and produced one witness who swore that plaintiff’s wife had told her that he was injured while cutting In the woods.

A fellow workman of plaintiff testified that when plaintiff was injured, he called and told him what had happened and immediately ceased work and went home. Plaintiff testified positively as to the injury and when it happened. Without a further review of the evidence, which we feel unnecessary, we are convinced that plaintiff was injured, as alleged, while in the employ of defendant and while in the course of his. employment and entitled to compensation, as prayed for, unless the plea of prescription of one year is sustained.

The accident causing the injury to plaintiff occurred on September 11, 1929, and service on defendant was not had until September 13, 1930, one year and two days after the accident. The evidence shows that the loss of sight of his eye did not occur until at least ten days after the accident, and this court has held that prescription does not begin to run until a cause of action arises, which in this case was at the time he lost his eyesight, at least ten days after that. Hoy v. T. S. Grayson Lumber Co., 15 La. App. 176, 130 So. 651.

The Supreme Court of this state has held the same in a very similar case to the one before us. Guderian v. Sterling Sugar & Railway Co., Inc., 151 La. 59, 91 So. 546.

The Court of Appeal, First Circuit, in the case of Bagg v. Pickering Lumber Co., 7 La. App. 63, has also held that, where an eye is injured, thereby causing one the loss of his sight, prescription does not begin to run until the sight is lost.

Counsel for defendant call our attention to the case of Flynn, Executor, v. N. Y., New Haven & Hartford Railroad Co., decided by the United States Supreme Court ■on March 23, 1931, 283 U. S. 53, 51 S. Ct. 357, 75 L. Ed. __, wherein the court said:

“The time within which suit must be brought under the Federal Employers’ Liability Act of April 22, 1908, 35 Stat. at L. 65 [45 USCA, secs. 51-59], by the personal representative of an injured employee for the benefit of the widow and children, runs from the date of injury, and not from the date of death.”

This decision, although interpreting a federal statute and not our state statute on compensation, would be most persuasive if our Supreme Court had nqt already placed its interpretation of prescription under said act in the case of Guderian v. Sterling Sugar & Ry. Co., cited supra. The construction of our Workmen’s Compensation Act has been most liberal by the courts of this state, and to say what construction the United States Supreme Court would place on it, considering the ruling of our courts thereon, would be merely to hazard a guess. So long as the decision of the Supreme Court of this state remains undisturbed, we feel hound to follow it.

Plaintiff did not lose the sight of his eye until after September 21, 1929; suit was filed September 11, 1930, and citation had on defendant September 13, 1930, within the one year from the time the cause of action arose. The plea of prescription of one year was properly overruled by the lower court, and the judgment of the lower court is correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.


source: Caselaw Access Project

author: McGREGOR, J.

license: Public Domain

text:
    No. 4049
    Second Circuit
    ARMSTEAD v. J. A. BENTLEY LUMBER COMPANY
    (July 14, 1931. Opinion and Decree.)

      Pern M. Wood, of Leesville, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   McGREGOR, J.

On or about April 2, 1930, the plaintiff, Ed Armstead, was in the employ of the defendant, J. A. Bentley Lumber Company in the parish of Rapides, this state. He was working in the capacity of “decker,” his duties consisting of fastening tongs in the ends of logs in order to facilitate the loading of them on defendant’s log train. While the plaintiff was thus employed these tongs slipped and he was struck on the left side of his face, resulting in a simple fracture of the cheek bone. On account of the in-’ jury the plaintiff quit work for thirty days and during that time he was under treatment of the defendant’s physician. After this physician had discharged him as cured he went back to work and received seventy:five cents per day more than he was receiving at the time he was injured. He continued on this job until September 1; 1930, when he was laid off on account of bad business conditions. During the time that he was working after he was discharged by the physician as cured, he never complained in regard to any injury. On October 1, 1930, one month after he quit work on account of bad business conditions, this suit was filed. In it he claims (1) that his left eye is out, (2) that he is wholly deaf in his left ear, and (3) that his left cheek bone is totally incapacitated, and he sues for sixty-five per cent of his wages for three hundred weeks, or one hundred weeks on account of each alleged injury. Defendant’s counsel filed a' motion asking that the plaintiff be required to elect one of the three alleged demands of his petition, but this was overruled. On trial there was judgment at first in favor of the plaintiff for one-half of his demand made for the alleged loss of his eye. On a rehearing granted on the application of the defendant, this judgment was recalled and final judgment was rendered and signed in favor of the defendant rejecting all of the plaintiff’s demands. Prom this judgment the plaintiff has appealed.

OPINION

The answer of the defendant in this case admits the fact of the injury,’ but denies that any injury to the eye or ear occurred when the plaintiff was struck on the cheek bone. It is also alleged in defense that if the plaintiff is suffering with his eye or his ear, that affection is caused by a syphilitic condition which has no connection with the injury to the cheek bone.

Only two witnesses were sworn for the plaintiff. They were Dr. E. R. Gandy and the plaintiff himself. Dr. Gandy testified that in his opinion the plaintiff is blind in his left eye and deaf in his left ear, but that he thinks it is due to syphilis and doubts that it was caused by trauma. The plaintiff himself testified that béfore the accident he could see and hear perfectly out of that eye and that ear, and that since the injury he has not been able to see out of the eye or hear with his ear. He denies that he has ever had syphilis. No attempt is made in behalf of the plaintiff to show that the syphilitic condition in his system was accentuated or accelerated by the injury, and that this indirectly caused the injury to the eye and the ear.

Dr. J. W. Phillips, the physician who treated plaintiff’s injury, testified that he dressed the wound twice during thirty •days and that after that he discharged him as cured. He stated that during the time the plaintiff was under his treatment he complained of his eye hurting him some, but that he had never heard of his eye trouble-or-his deafness until after the suit was filed. He testified that at the time of the trial the plaintiff had syphilitic conditions.

Dr. P. K. Rand, another witness for the defendant, had an x-ray picture made of the plaintiff’s cheek bone and testified that he found no impairment of the functions of the jaw. He also testified that he had a Wasserman test of plaintiff’s blood made and that the result indicated syphilis.

Dr. A. M. Peters, an eye, ear and nose specialist, testifying for the defendant, stated that he had carefully examined the plaintiff and found that he was neither blind nor deaf as 'he claimed, though he did find some deficiency of his left eye and ear. His conclusion was that the injury had nothing to do with this condition, but that it was due to syphilis.

Dr. I. F. Littell, testifying for the defendant, stated that he was an eye, ear, pose and throat specialist and that he had examined plaintiff. He found some impairment of the sight in .the left eye but no deafness. He could see no connection between the injury to the cheek bone and the condition complained of.

Hood Reed and J. L. PuIIabeck, two of defendant’s witnesses, testified as to the ■work done by the plaintiff before and after the injury. No testimony was offered to show any permanent injury to plaintiff’s cheek bone except his statement on the subject.

The . Employers’ Liability Act (Act No. 20, of 1914, as amended) is always construed liberally in favor of the plaintiff, but the law requires him to prove his case nevertheless. In this case the plaintiff has not satisfactorily proved any of his allegations. He is probably suffering to some extent from the symptoms complained of, but he has shown ho causal connection whatever between them and the injury he received. As to the loss of the use of his jaw bone, he has not sufficiently proved it to any extent. For the time lost by him he was offered sufficient compensation and he refused it. Everything required by law at the hands of the defendant has been complied with.

For the reasons assigned the judgment of the lower court is affirmed.


text:
    No. 4042
    Second Circuit
    STATE EX REL. CAIN, TAX COLLECTOR, v. H. D. FOOTE LBR. CO., INC.
    (July 14, 1931. Opinion and Decree.)

      Ped C. Kay, of Be Ridder, attorney for plaintiff, appellant.
    B. T. Dawkins, of Alexandria, attorney for defendant, appellee.
   McGREGOR, J.

On January 1, 1929, and for some time prior thereto, the W. G. Ragley Lumber Company, Incorporated, was the record owner of all the standing timber on certain land in Beauregard parish. While this company was the record owner of the timber on the date named,^ as a matter of fact it had sold it to the Powell Lumber Company, Incorporated, on November 21, 1928, but the act of sale was not filed and recorded until July 5, 1929. Powell Lumber Company sold the timber to the B. E. Smith Land & Lumber Company on January 19, 1929, and that company in turn sold and conveyed it on January 22, 1929, to the H. D. Foote Lumber Company, Incorporated, who in the act of sale agreed to pay all taxes due on the said timber for the year 1929. As required by law, the tax assessor of Beauregard parish assessed the said timber for the year 1929 to the W. G. Ragley Lumber Company, Incorporated, as it was the record owner on January 1st of that year.

As soon as the H. D. Foote Lumber Company acquired its title to the timber, it began to cutí and remove it, and, before the tax roll for the year 1929 was ready for filing as provided by law, all the timber had been cut and removed from the parish. As - a consequence, when the tax collector received the tax rolls and was ready to collect taxes on the timber, he was powerless, to seize it to enforce the collection. This suit was brought in Rapides parish, the domicile of the defendant, to enforce it to pay the said taxes. The tax collector bases his right to prosecute this suit against this defendant- on the ground that it agreed with its vendor that it would pay the taxes on the timber for the year 1929, and that, while it was the owner of the timber, it cut and removed it from Beauregard parish, and in so doing put it beyond the power of .the tax collector to seize and sell it in the manner provided by law. The defendant filed an exception of no cause or right of action, which was sustained by the court in a signed judgment, from which plaintiff has. appealed.

OPINION

The facts of this case are simple and undisputed. The exception of no cause or right of action is based on the theory that, if the timber is considered as real estate, no suit of any kind is authorized for the collection of the taxes, the only remedy provided by law being the seizure and sale of the property itself; and that, if it is-considered personal property, the law does not authorize the present suit.

It is well settled that, when taxes are assessed upon real estate or immovable property, there is. no personal liability on the part of any one. The law provides an ample remedy for the collection of the taxes by the sale of the property without resort to suit of any kind against any one. So that, if the assessment of the standing timber should be classed as real estate or immovable property, the law neither provides for nor allows such a suit as this to be filed.

For the collection of taxes on personal property, the Constitution provides as follows:

“Taxes on movables shall be collected by seizure and sale by the tax collector of the movable property of the delinquent, whether it be the property assessed or not, sufficient tq pay the tax. Sale of such property shall be made at public auction, without appraisement, after ten days’ advertisement, made within ten days from date of seizure, and shall be absolute and without redemption.
“If the tax collector can find no corporeal movables of the delinquent to seize, he may levy on incorporeal rights, by notifying the debtor thereof, or he may proceed by summary rule in the courts to compel the delinquent to deliver up for sale property in his possession or under his control.” Constitution of 1921, art. 10, see. 11.

The latest expression of the Supreme Court on the question of the liability for the payment of the taxes due on movable property is the case of Louisiana Oil Refining Co. v. Louisiana Tax Commission, 167 La. 605, 120 So. 23. In that case, in discussing the question as to who is liable for the taxes upon movable or personal property for the current year the court said:

“At the outset it is well to observe a fundamental distinction between taxes levied on real estate (immovable property) and taxes levied on personal (movable) property; for we will thereby avoid some confusion which might btherwise arise.
“That fundamental distinction is this: That taxes levied on real property are a charge laid exclusively upon the property assessed, and collectible only out of said property, and neither the owner of said property, nor any other property of his, is liable for said taxes; whereas, taxes levied on personal property become a personal liability of the person assessed and collectible out of any property belonging to the person assessed. Cleveland Steel Co. v. Joe Kaufman Co., 155 La. 529, 99 So. 428.
“Hence it is immaterial, so far as concerns any personal liability for taxes .on real, property, to whom such real property may be assessed, since the person assessed is never personally liable for said tax. But, on the other hand, it is of supreme importance to whom personal property is assessed, since if such personal property be assessed to the proper person, the person assessed is thereby made personally liable for the tax.
“Hence we see no relevancy here in any jurisprudence relating to the manner in which real property shall be assessed, for no personal liability on the part of the owner or person assessed can result in any case. And the question before us resolves itself simply into this: Who (if properly assessed) is liable for the taxes upon personal property for the current year; is it the person who was owner thereof on January 1st of that year, or he who is owner, thereof at the time the property is listed and the assessment completed?
“Certainly the property cannot be assessed to both; for both are not liable, but only the one or the other, since the same property cannot be assessed twice. And if he who was. owner of the property on January 1st be liable for the taxes for that year, then certainly he cannot relieve himself of that liability by selling the property before the assessment rolls have been completed.
“But it is the jurisprudence of this state that, although the assessments nry be made afterwards, the law contemplates that they shall be made on the basis of the condition of things as they existed on January 1st of the year in" which they are made. Southern Insurance Co. v. Board of Assessors et al., 49 La. Ann. 401, 21 So. 913; Palfrey v. Connely, 106 La. 699, 31 So. 148; Bunkie Brick Works v. Police Jury, 113 La. 1062, 37 So. 970; City of New Iberia v. Police Jury, 135 La. 769, 775, 66 So. 193; Morgan’s L. & T. R. R. & S. S. Co. v. White, 136 La. 1075, 1078, 68 So. 130; Jasper & E. R. R. Co. v. Martin, 142 La. 1047, 78 So. 112.
“We adhere to that docirine, to-wit, that no matter at what time assessments on personal property must or may be actually completed, they are to be based on conditions existing on January 1st of the year for which they are made.” (Italics ours.)

Under the above decision, if the timber is movable property, W. G. Ragley Lumber Company, Incorporated, the record owner on January 1, 1929, and to whom the timber was assessed, and not the present defendant, is personally liable for the taxes for the year 1929, and whatever remedy is provided by law for the enforcement of the collection of the same must be pursued against that company and not against the present defendant. So that it is not necessary to decide whether the taxes on the said timber should be collected as on immovable property or movable property, for in neither case does the law provide for any kind of suit against this defendant.

But plaintiff >says that, in the act of sale in which the defendant secured title to the timber, it agreed to pay the taxes, and that therefore he has a right to bring this suit to enforce this promise. In order for this so-called agreement or assumption to furnish the basis of any action against the defendant by the plaintiff, it must be construed as a stipulation pour autrui. The case of People’s Homestead Association v. Garland, 107 La. 476, 31 So. 892, involved the exact point, and, in holding that such an agreement to pay taxes was not a stipulation pour autrui, the court said:

“In the absence of any text of law on the subject, such assumption cannot benefit the city, unless it be viewed as. a stipulation pour autrui in its favor. We find nothing tending to impress that character upon the act. The matter was one purely personal to the contracting parties, exclusively in their own interest, and not in the remotest degree intended for the benefit of the city, who was not a party to the contract. The assumption by another of the tax did not relieve the party assessed of his liability therefor. In contemplation of law, he remained . the tax debtor. It merely gave him the right to recoup himself against his vendee in case he were compelled to pay the tax assumed by the latter, but conferred no rights on any one else. Thus it has been held that a stipulation that a certain sum shall be paid to a third person towards the extinguishment of á debt due to him from one of the parties to the contract is not a stipulation pour autrui, but that the assumption of the debt is part of the consideration or price of the property intended exclusively for the benefit of the stipulating party. Tiernan v. Martin, 2 Rob. 523.”

In the present case the promise of this, defendant to pay the taxes on this timber for the year 1929 was a matter purely personal between the" defendant and its vendor. The promise was not made for the benefit of the state or parish or any other body to whom the taxes might be due. It was merely an agreement on the part of the defendant to hold its. vendor harmless as to the taxes. If at any time its vendor, B. E. Smith Land & Lumber Company, should be called on to pay these taxes, then under its contract it could call on the defendant to pay them. That is the full extent of the obligation.

For the reasons assigned, the judgment appealed from is affirmed, the plaintiff to pay the costs, of both courts.


author: DREW, J.

text:
    No. 3972
    Second Circuit
    HORN v. LOUISIANA HIGHWAY COMMISSION ET AL.
    (July 14, 1931. Opinion and Decree.)
    Cas Moss, of Winnfield, attorney for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, attorney for defendants, appellants.
   DREW, J.

Plaintiff sued for compensation in the amount of $15.60 per week for a period not to exceed four hundred weeks, alleging that he was in the employ qf the Louisiana Highway Commission, and while doing the work he was employed to do, that is digging, a ditch, that the ditch caved in on him and permanently injured him. The ditch was nine feet, six inches deep and about three feet wide when it caved in, burying the plaintiff all but his face. He was confined to his bed for about one month and continued under the care of his doctor up to time of trial. He claims to be totally permanently injured and unable to perform any labor of a reasonable character. The defendant admits the accident and the injury at the time and the' only contest in this suit is over the extent of the injury received by plaintiff. The injury was received by plaintiff on December 2', 1928. The case was tried in the lower court and judgment rendered October 28, 1930, awarding the plaintiff compensation for total disability for a period of fifty-two weeks. Defendant has appealed and plaintiff has answered the appeal, praying that the judgment be amended by increasing the number of weeks not to exceed four hundred.

The principal defense made is that plaintiff is a malingerer and was fully recovered long before the trial in the lower court. The lower court found to the contrary, holding that plaintiff was totally disabled at the time of trial and for reasons not disclosed by the record as made up awarded him compensation for a period of fifty-two weeks, beginning on the date of accident.

The lower court undoubtedly must have had some testimony on which to base the period of compensation allowed by it. If the plaintiff was totally disabled at the time of trial as found by the lower court, without any evidence to show -with some degree of certainty that he would fully recover at some definite future period, the judgment should have been for a period not to exceed four hundred weeks. We say this for the reason that the record of the testimony is in very bad shape. As an example of the kind of record made of the testimony we quote the following taken from it: “Upper part of________________”; “in the ligament or cap___________________________”; “(Witness explains to Court)”; “(Doctor explains to Court)”. Such a transcript of the testimony means nothing to this court.

It is the rule of the court when the record is incomplete to assume that the lower court based its judgment on sufficient evidence and affirm the judgment. However, in compensation cases all rules of procedure and of trial are not strictly followed, and in this case where both appellant and appellee are asking that the judgment be changed, we feel that in fairness the case should be remanded for a new trial in order that the record of testimony may be complete and for the further reason of hearing testimony more definite as to the extent of the injury and the earning power of plaintiff, if any.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be set aside and the case remanded for a new trial in accordance with' the views expressed herein; costs to abide the final determination of the case.


author: WEBB, J.

text:
    No. 3990
    Second Circuit
    DUNN MERCANTILE CO. v. MILLS
    (July 14, 1931. Opinion and Decree.)
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellee.
    Warren Hunt, of Rayville, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, Dunn Mercantile Company, Incorporated, brought this action to recover judgment against defendant, R. V. Mills, in the sum of $287.50 for merchandise alleged to have been furnished on orders of defendant to tenants on defendant’s plantation; and defendant appeals from a judgment in favor of plaintiff for the full amount claimed.

The record shows that there had been prior like transactions between the parties and that plaintiff had made charges against defendant for merchandise furnished, merely by reference to the amount and name of the tenant producing the order and the date the merchandise was furnished, without itemizing the particular articles of merchandise, and the same method was followed in keeping the account in dispute which shows charges made against defendant on February 22, and March 1 and 3, 1930, aggregating the amount stated above.

There was not any objection made relative to the method of keeping the account, and plaintiff produced orders covering the charges of date March 3, and also evidence showing that merchandise of the value shown by the charges of date February 22 and March 1 had been delivered to defendant’s tenants on those dates, and the manager of plaintiff company stated that defendant had verbally authorized him to furnish the merchandise to the tenants, on such dates.

■ The defense was that defendant had not authorized plaintiff to. furnish the tenants with any merchandise on February 22 and March 1, and that plaintiff did not fill the orders covering the charges of date March 3, with the exception of certain articles admitted to have been furnished under the orders.

In support of the defense that plaintiff was not authorized to furnish the tenants with the nierchandise charged on February 22 and March 1, defendant said that he had not authorized plaintiff to furnish any merchandise to his tenants on those dates, and that the merchandise had been furnished the tenants on their own account. Defendant also called one of the tenants to whom merchandise was furnished on both dates, who said he had out-talked the plaintiff’s manager; but the record shows that defendant was at plaintiff’s place of business when the merchandise was furnished. The manager of plaintiff company related the circumstances which occurred at that time, which was not denied by defendant, who had notice of the charges soon after they were made and did not make any complaint at that time.

As stated, the charges of date March 3 were covered by the orders produced, and the manager of plaintiff company and one of its employees stated that the orders had Been filled,' and the only evidence tending to rebut their testimony, was the statement of some of the tenants to whom the orders were given that plaintiff refused to fill the orders, which was in conflict with the statement of other tenants who had orders and who are admitted to have been present when the orders were presented.

All the tenants, however, agreed that plaintiff did not have some articles of merchandise for which the orders called, and that plaintiff had purchased such articles from other local dealers, and it is admitted that such articles were furnished on the orders. Even if the testimony of the tenants alone was considered, ■ we are of the opinion that the weight of the testimony is decidedly against the contention that the orders were not filled.

From our review of the record we are of the opinion that the judgment is correct and it is affirmed, at appellant’s cost.

McGREGOR, J., recused.


text:
    No. 4050
    Second Circuit
    MAHFOUZ v. INTERURBAN TRANS. CO.
    (July 14, 1931. Opinion and Decree.)
    Overton & Hunter and J. A. Robinson,, of Alexandria, attorneys for plaintiff, appellant.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys, for defendant, appellee.
   McGREGOR, J.

This is a suit brought by the plaintiff against the defendant for damages on account of personal injuries alleged to have been received by him while-traveling as a passenger on a bus owned and operated by the defendant. The bus on which plaintiff -was riding made the-trip daily from Monroe to Alexandria. On February 17, 1927, the plaintiff was in the town of Georgetown, which is on the regular bus route from Monroe to Alexandria, and, desiring to go to Alexandria, he purchased a ticket to that place for $1.35 and boarded the first bus that came along. After he had traveled about three miles the town of Selma was reached, at which point the graveled highway runs parallel wjth and on the east side of the main line of the Missouri Pacific Railway Company. When the bus entered the town it was running at the rate of thirty-five miles per hour, and as it progressed through the town the bus driver says that the speed was gradually reduced to twenty-five miles per hour. In the town of Selma there is a street or road on the east .side of the highway that runs in a northeasterly a^d southwesterly direction until it reaches a filling station on the east side of the highway, where it turns directly west several feet south of the filling station and crosses the railroad at right angles; so that there is a triangular lot between the filling station, the highway, and the other road just mentioned. When the bus reached a point one hundred twenty-five feet north of where this road crosses; the> highway and the railroad at right angles, the driver observed a Ford truck starting up from the little triangular lot just mentioned, right in the edge of the highway, and preparing to enter it. The driver says that as soon as he saw the truck he slowed down to twenty-five miles per hour, and that by the time; he had nearly reached it he had slowed down to ten or fifteen miles per hour. Whether this is true or not we are unable to *say, but, be that as it may, after the Ford truck came upon the highway it turned due west with the apparent intention of .crossing it and the railroad, and, when it got in the middle of the highway, the motor stalled and went dead. The driver of the bus says that at this moment he was within six or eight feet of the truck standing still in the middle of the road, with his own speed cut to ten or fifteen miles per hour, and that, confronted with this emergency, he turned suddenly to the right to the west and landed on the railroad where the road crossed it at right angles. The distance from the point where the turn was thus suddenly made to the point where the bus was finally stopped on the railroad was fifty-three feet, according to the testimony of a civil engineer who made a blueprint of the road and of - the points adjacent to the scene of the accident. When the bus came to a standstill it was necessary, for all the passengers to get out so that the driver could jack it up and get it off the railroad track back onto the highway.

After the passengers had been unloaded and the bus had been gotten off the railroad track and preparations, were made to renew the journey to Alexandria, the driver took a list of the names and addresses of all passengers, about six in number. He says that at the time plaintiff complained for the first time that he had been hurt in the bus by being thrown from his seat when it ran suddenly upon and down the railroad track. Plaintiff says it was known that he was hurt before he left the bus, as some of the passengers had assisted him to get up and out. The journey was resumed, and as soon as Alexandria was reached the plaintiff was taken to a doctor’s. office and received medical attention at the hands of Dr. J. I. Peters, a witness for the defendant, who found him suffering from a contusion of the left shoulder and a contusion of the left side near the hip. This doctor bandaged the arm and shoulder with adhesive tape to keep them still, but did nothing with reference -to the contusion on the left side» Before bandaging the arm and shoulder, X-ray pictures of the upper portion of the body, including the shoulder joints, were made. On the next day plaintiff went to Dr. F. B. Duckett, who testified as a witness for the plaintiff. This doctor made an examination of the plaintiff’s body and found about the same injuries as were found by Dr. Peters. He loosened the tape bandage on the arm.and shoulder, as the plaintiff complained of it being too tight and hurting him.

This suit was filed on December 16, 1927. In his petition plaintiff alleges that from the date of the accident to the date of the filing of this suit he had been totally incapacitated for work on account of the injury received. He prays for damages in the sum of $7,043, which he itemizes as follows: $2,000 for loss- of time; $5,000 for mental and physical pain and suffering and physical disfigurement; and $43 for doctor’s fee and drug bills.

Before the trial Jaubert Bros, became the owners, of the suit by purchase at a judicial sale, and by mutual agreement the case was. tried with them as substituted plaintiffs. The judgment of the lower court rejected plaintiff’s demand, and from that judgment this appeal is being prosecuted.

There are two questions of fact to be decided in this case. (1) As to whether plaintiff suffered any appreciable injury; and (2) if he did, was it the result of the negligence of the defendant’s, agent, the driver of the bus? Plaintiff insists in his pleadings and in his testimony that he had been totally incapacitated by the injury he received. On this point no testimony is offered but his own. At the time of the accident he was earning $125 per month, and since then, according to his testimony, he has been unable to earn any amount on account of his physical disability. It would seem that, if the injury were as serious as he contends, he could and would have produced medical testimony to that effect. Up to the time of the injury all his employment had, been along the line of mercantile work, and the disability that is shown to exist in his arm and shoulder would not prevent him from doing that kind of work. But he was injured to some extent. As soon as he was taken to Alexandria he was carried to the office of Dr. Peters, who found two contusions on his. body, one on the left side and one on the left arm and shoulder. The arm and shoulder were injured seriously enough to justify Dr. Peters in bandaging them with tape to prevent any motion in the shoulder joint to give it opportunity to recover from whatever sprain may have been suffered. Dr. Peters testified that he considered the injuries- serious, but thought recovery should be made in a week or ten days. He never saw the plaintiff again professionally. On -the next day plaintiff went to Dr. F. B. Luckett, who made a fairly thorough examination and found the same injuries that Dr. Peters had found. He loosened the bandage put on by Dr. Peters, as plaintiff complained of it being too tight. He found the plaintiff suffering considerably, and it was his opinion that plaintiff would in the ordinary course be disabled for some ten days to a month. A great deal of effort is made by counsel for defendant to discredit plaintiff’s testimony to the effect thal he was injured by being .thrown in the bus in some way. The fact speaks for itself that he was hurt seriously on two parts of the body, and the kind of injury he received could not be received in any manner except as described by him. The fact that others were not thrown from their seats by the sudden turning and stopping of the bus does not argue that he was not. Serious. railroad and automobile accidents are happening every day wherein some are killed and some of their fellow passengers escape without injury. These contusions were found on his body immediately after the accident, and the irresistible conclusion is that they were received by him because of the sudden turning and stopping of the bus. The injuries were serious enough to require medical attention. The man certainly was disabled for several days, and his. physical suffering must have been considerable, besides the fright caused by the expectation of serious impending disaster as the bus left the road and finally came to a stop in the middle of the railroad track was sufficiently serious, to give rise to a fear of losing his life. All these elements taken together constitute, we think, injuries of a sufficient nature as to justify a demand for damages if the defendant, through its employee, the driver, was. guilty of negligence, and if, but for this negligence, the injuries would not have been received. Furthermore, about twenty years prior to the accident, plaintiff had his collar hone broken, but this had completely healed. Counsel for defendant in their brief admit that at the time of the trial the plaintiff was suffering from this old break. While there is no evidence to this effect; if the pain that plaintiff claims to have been suffering from at the time of the trial was. referable to this old break rather than to a new injury to the shoulder, it is most likely that this was caused by a new disturbance of the old break at the time of plaintiff’s fall in the bus.

Under his own testimony the driver of the bus was from eighty-five to one hundred feet away when he saw the Ford truck coming upon the twenty-four foot highway with the intention, of crossing. The bus driver testified that the truck was going “pretty fast” until it stalled in the middle of the highway, thus- blocking the passage. When the Ford came thus to a stop, the bus was, according to the testimony of its driver, within six or eight feet of it, and, to avoid running into it, the driver turned suddenly and sharply to the right and never stopped until he was up on the railroad with the two front wheels caught between the tracks. . The distance traveled during this movement was fifty-three feet. The bus driver says that when he first saw the truck coming upon the highway he immediately began to slow down and to get the bus under control, and that, if the truck had not stopped, it would have gotten out of his way in .time for him to pass to the rear of the truck. But, while the driver says the distance from the point where he first saw the truck coming upon the highway, was only eighty-five to one hundred feet, the defendant’s, witness, a civil engineer who made a blueprint of the scene of tlieo accident, testified that this distance was one hundred twenty-five feet. So, if the bus traveled one hundred twenty-five feet while t'he truck was getting halfway across the highway going “pretty fast,” it would have been impossible for the truck to have gotten out of the way in time to. let the bus. pass to its rear, even though it had not stopped. So it would appear that the' driver of the bus did not slow down as much as he thinks he did. The fact that he traveled fifty-three feet climbing a railroad embankment would indicate that he was traveling rather rapidly when he discovered suddenly that the truck had stalled. It is the duty of the driver of any automobile, and particularly of a bus carrying passengers for hire, to keep his machine under such control after the discovery of another vehicle on the road in front to avoid either a collision or other accident of _ a similar nature. As soon as the driver of defendant’s, bus. saw this truck in front of him, he should have slowed down to such a speed that he could stop practically instantly in case the truck should stop in the middle of the road as it did. It is argued that stopping of the truck was not to be expected. Perhaps .not. But the driver of the bus should have anticipated it to such an extent as to be able .to avoid a collision in case it did stop. The moment that the truck came upon the highway it was a danger signal to be heeded at all hazards, and in the distance of one hundred twenty-five feet .the driver of the bus had sufficient time to avoid any accident. It was negligence on the part of the driver to depend on the truck getting out of his way in time to avoid a collision. He contends that he had slowed down to about ten miles per hour, but, considering the distance he had traveled, one hundred twenty-five feet, after seeing the truck, and the distance of fifty-three feet he went up the railroad embankment before he stopped between the rails, he was evidently going at a much faster speed that he seems to think he was going.

Counsel for defendant quote from 10 Corpus Juris, pp. 8S3-867, as follows:

“The driver of an automobile. or motor vehicle carrying passengers is bound to use at least reasonable and ordinary care for the protection of his passengers in driving the machine; and in driving through the streets of a city he is required to anticipate that he may meet persons or vehicles, to keep a proper lookout for them, and to use care to have his machine under such control as. to enable him to avoid collisions.”

This citation alone in connection with the testimony of the defendant’s bus driver is sufficient to convict him of that degree of negligence to render defendant liable for any injury received by any one on account of this accident. The driver says he kept a lookout and says he saw the truck coming upon .the narrow highway at a distance that is shown to be one hundred twenty-five feet. And while he did avoid a collision, he did it in such way as to inflict serious injuries upon plaintiff, one of his passengers. It is true that the sudden stopping of the truck in the middle of the road did create an emergency and possibly the bus driver does deserve credit for having avoided what might have proved to be a greater disaster than the one that did happen. But it was his duty and he- had the opportunity to avoid any disaster. He saw this possible danger one hundred twenty-five feet away, and he ought to have had his bus under such control that he could avert it without hurting any of his passengers. Counsel refers to the codal definitions of force, superior force, and fortuitous event. These definitions are not applicable. The sudden stopping of this .truck does not come under the heading of any one of the definitions. Over and over again it has been held that the driver of one car traveling behind another is not excusable for hitting the car in front if it stops suddenly and unexpectedly. It has been repeatedly held that the car in the rear must be held under such control that it can be stopped before it strikes the car in front. This rule is surely stronger in cases of a car crossing in front, particularly when there is ample time to put the car under control. Counsel for defendant urge that defendant is not an insurer of his passengers, and that, unless negligence is shown, there can be no recovery for injuries received. This is 'correct. The eases cited are not applicable, for we hold that, according to the testimony of defendant’s driver taken in connection with the way the accident happened, it was. negligence. This is not a case of an accident caused by a latent defect in the machinery of the. bus or the condition of the road. Everything that happened here was on account of the driver's negligent handling of a perrect machine on a perfect road. He had ample opportunity to prepare for and avert the impending disaster. Counsel ably argue that the defendant could no more guarantee against an automobile stopping suddenly in crossing the highway than it could guarantee the condition of the road. Neither could it guarantee that a car traveling in trout in the same direction would not scop. Nevertheless it would be liable for all damages if it ran into such a ear that unexpectedly stopped; So in this case the defendant’s driver, having had ample time to get his bus under control for just such an emergency, was guilty of negligence in not doing so.

Because of plaintiff’s failure to produce corroborative testimony in regard to his disability and suffering at the time of the trial, we are unable to determine the full extent of his injury. But, in view of the proved fact of negligence on the part of defendant’s driver and of the immediate injury and suffering of the plaintiff, we think there should be judgment in his favor for at least $250.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, avoided, annulled, and set aside, and it is further ordered that there be judgment herein in favor of the substituted plaintiff, Jaubert Brothers, against the defendant, Interurban Transportation Company, for the sum of $250, with 5 per cent interest from December 17, 1927, and all costs in both courts.


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    No. 4052
    Second Circuit
    McCLENDON v. LOUISIANA CENTRAL LUMBER CO.
    (July 14, 1931. Opinion and Decree.)

      A. D. Flowers, of Jena, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   DREW, J.

Plaintiff sued for compensation at the rate of $9.75 a week for a period of three hundred weeks, alleging that on the 24th day of September, 1930, while employed by the defendant at a daily rate of pay of $2.50, and while on his way to work on a train furnished by defendant to haul its employees to and from their work, he stuck a knife in his leg, which he alleges will result in permanent stiffness of the leg. He alleged that the accident happened in the following manner, to-wit:

That on the date above set out, defendant was conveying its employees, including plaintiff, to their work, when the train dropped one of- its passenger coaches, and, inasmuch as the remaining coach did not supply sufficient seats for all the laborers, including petitioner, to sit upon, petitioner was forced to stand or procure such an improvised seat as he might provide for himself, and that not having any seat, he placed his lunch pail against the wall and sat down on same. That while thus seated and while engaged in making a wooden peg to use as a button for the support of his overalls, and as the train passed over a hill, it gave a sudden lurch, caused by the slack in couplings, and plaintiff was thrown from his seat on the lunch pail to the floor and in falling stuck the knife in his knee.

Defendant filed an exception of no cause of action based on the ground that, accepting as true the allegations- of the petition, the accident did not arise out of the employment, and with reservations of its rights under the exception, filed an answer wherein it denied the principal allegations of the petition; and specially alleged that at the time of said accident plaintiff was performing no services for defendant in connection with his employment, and that he was using his knife in a manner purely for his own benefit, and that, therefore, the accident did not arise out of the employment and had no connection therewith.

After the exception, of no right or cause of action was overruled hy the court, defendant filed a supplemental answer wherein it alleged that it provided the plaintiff with a safe place to ride to and from his. •work in its coaches; that it provided said coaches with seats for the .benefit of its employees in traveling to and from their work; that plaintiff left his seat in the coach in which he was riding voluntarily and of his own free will and sat upon his dinner pail; .that in so doing and in opening his pocketknife and using it of his own accord and for his own personal use while so situated, he- voluntarily placed himself in a more dangerous situation than was. called for by his employment and outside of his employment, which bars his recovery herein.

It further alleged in the alternative that the .seats provided by it afforded the employees a reasonably safe place to ride and were placed in said coaches for the protection and convenience of said employees ; . and that in voluntarily leaving said reasonably safe place, plaintiff deliberately failed to use an adequate guard or protection against accident provided by his employer, within the meaning of section 28 of Act No. '20 of 1914.

The lower court rendered judgment overruling the exception of no cause or right of action, and on the merits rejected plaintiff’s demands, at his cost. From this judgment he has appealed.

Defendant has not answered the appeal; therefore, the exception of no cause or right of action is not before us for consideration.

The evidence discloses .the following facts:

That plaintiff at the time of the injury was employed by the appellee as a common laborer, at a salary of $2.50 per day for a six-day week; that appellant lived at a log-camp owned by appellee, at Webb, La., and was daily transferred to and from the place of his labor by a train operated by the appellee for the purpose of transferring all of its laborers to their respective places of employment; that the train consisted of an engine and three box cars, in which seats were erected around the wall for the employees to sit while being so transferred; that on the morning appellant received the injury complained of, he was riding in one of said cars to the place of his employment. He had his knife open for the purpose of fixing a peg to replace a suspender button that had broken off. He was sitting on his dinner pail and, as the train passed over the crest of an incline, the train was stopped, and as the slack was .taken out of the train, it caused a jar or jerk which caused plaintiff to lose his balance; and in trying to right himself and keep from falling over, he stuck the knife in his knee. That the' jar or jerk of the train was not unusual and was such as could be expected on the stopping of the train; that appellant had ridden .this train for twelve months preceding the accident; that infection and complications to the knee resulted from the wound inflicted by the knife. Appellant was confined to his room for a considerable time and in the sanitarium for about a month. At the time of trial in the lower court, appellant was unable to work and his knee was stiff, with the exception of a very slight mobility. Appellee paid hospital and medical bills amounting to $210, in accordance with a medical fee of $2.25 per month that had been paid by appellant. That the injury was received in Catahoula parish and appellee is doing a general logging business in Catahoula parish.

Appellant boarded the car on which he was injured at the camp and occupied a seat erected in the car by appellee for the employees to sit on in going to and from work. He later vacated his seat, without any good reason, as disclosed by this record, and took a seat upon his dinner pail where any slight jar or jerk of the train was liable to topple him over; and while in this position, opened his knife in an attempt to fix a suspender button. There Were ample seats in the car for all employees, and the other employees who were seated were not disturbed by the jar of the train.

The first question in the case is: Did appellant deliberately fail to use an adequate guard or protection against accident provided for him (section 28 of Act No. 20 of 1914) ? The word “deliberate” is defined by Webster’s New International Dictionary to be: “Well-advised; carefully considered; not sudden or rash; weighing facts and arguments with a view to a choice of decision; carefully considering the probable consequences of a step; circumspect; slow in determining; to weigh in the mind; to consider the reasons for and against; to consider maturely; to regard upon; to ponder.”

We do not think that the appellant’s act in vacating his seat and sitting on his dinner pail was such a deliberate act as to come within the meaning of the word “deliberate,” as used in the Workmen’s Compensation Law of Louisiana. It was nothing more than thoughtlessness and negligence on the part of appellant. It must be remembered that he was not riding in a coach or car with regular seats in it, but was riding in a box car' with boards nailed around the sides for seats. It is not shown that the seats in the car were placed there as an adequate guard or protection against accident, and no doubt were placed there for the convenience of the employees.

Section 28 of Act No. 20 of 1914, providing that “no compensation shall be allowed for an injury caused * * * by the injured employee’s deliberate failure to use an adequate guard or protection against accident provided for him,” presupposes a known and specific danger" with a known guard or protection and a deliberate failure to make use thereof, and does not apply where no guard or protection has been provided, and where such risk was assumed, not deliberately, • but under conditions requiring an instanter decision to take one of two courses, either of which the employee was free to choose, so far as he was informed. Farris v. Long Leaf Lumber Co., 148 La. 106, 86 So. 670.

In the present case, the danger of sitting on a dinner pail was not a known and specific danger that any known guard or protection had been provided against, and the record fails to disclose that appellant had been instructed by anyone to occupy the seats on the car and not to sit on his dinner- bucket.

“Where it is part of an employee’s, duties that he be carried back and forth on a working train, the fact that he attempted to board the train while in motion and to get on the front of the engine, which was dangerous, does not debar recovery under Act No. 243 of 1916, especially where the evidence shows that he was a raw country boy who had only worked for a month and the conductor and a negro had gotten on the engine immediately preceding his attempt, the evidence not showing that he had been warned of the danger of boarding a moving train or that he should ride only in the caboose.” Parris v. Louisiana Long Leaf Lumber Company, supra; (Adam’s Workmen’s Compensation Law of Louisiana).

In the case of Sears v. Peytral, 151 La. 971, 92 So. 561, the court said that an. employee riding on a truck sitting on the floor, with his feet hanging over the side, instead of sitting on some empty boxes which were on the truck for a different purpose, did not constitute a deliberate failure to use an adequate guard or protection against accident, provided by the employer within the Employers’ Liability Act (Act No. 20 of 1914, secs. 1 and 28; Act No. 38 of 1918, sec. 2).

“The failure of an employee riding on, a truck to obey instructions not to sit on the floor with his feet hanging over. the side does not bar a recovery of compensation under the Employers’ Liability Act.”

The facts in the cited case are as follows:

“Plaintiff was employed by defendant to work for him in connection with a marble yard he was operating in this city. In February, 1920, he was ordered to go with several others in a truck to get a piece of granite. In going on this mission for his master, he sat on the floor of the truck, and permitted his legs to hang over the side. While sitting in that position, the truck reached a hole in the street, and the driver, in seeking to avoid it, passed near a water plug, which struck one of plaintiff’s legs and broke it.
“During the course of plaintiff’s treatment, defendant sent him from time to time sums of money aggregating $112.50. Thereafter he sent him nothing more. Plaintiff then instituted this suit under the Employers’ Liaoility Act, praying for judgment against defendant for $16 a week for 300 weeks, subject to credit of the $112.50 above mentioned.
“The record leaves no doubt that plaintiff was injured in the manner stated. The weight of the evidence shows that the smaller bone in the right leg, about midway between the knee and the ankle, was broken. Defendant, however, urges that the accident did not arise out of the employment, because it resulted from a disobedience of orders, but, if it should be held otherwise, then that he still is not liable,- because plaintiff deliberately failed to use an adequate protection or guard against accident provided for that purpose.
“It seems that there was a small sign on the truck cautioning employees, to keep their hands and feet inside of it while riding. There is evidence in the record to the effect that plaintiff on several occasions had violated these instructions, and had been warned against doing so. Defendant and his son testify that, when they started on the trip, plaintiff sat on the side of the truck with his feet hanging from the side, ánd was told by defendant not to ride in -that manner. They testified that he obeyed for the time being the order not to ride in such a way, but later that he resumed his former position, and as a result was injured. They testify that there were one or -two boxes on the truck, which could be used as seats.
“Granting that this, evidence is correct in every respect, still, upon a further consideration of this case, we have reached the conclusion that plaintiff is entitled to relief. The Employers’ Liability Act grants compensation to those employed in hazardous occupations for personal injury caused by accident arising out of and in the course of the employment, except when the accident is brought about by one of the causes mentioned in section 28 of the act. Section I of Act 20 of 1914; section 2 of Act 38 of 1918. Those exceptions are:
“When the injury is caused: ‘(1) By the injured employee’s wilful intention to injure himself or to injure another, or (2) by the injured employee’s intoxication at the time of the injury, or (3) by the injured employee’s deliberate failure to use an adequate guard or protection against accident provided for him or (4) by the employee’s deliberate breach of statutory regulations affecting safety of life or limb.’ Section 28 of Act 20 of 1914.
“That the accident arose out of and in the course of the employment appears from the fact that at the very moment it occurred plaintiff was proceeding on a mission for his master under his employment. The mere fact that he was proceeding negligently in the vehicle provided for that purpose, or in a manner therein that was contrary to instructions, did not place him outside of the scope of his employment. He was still on the mission of his master.”

The court further said:

“We are also of the opinion that the defense urged that there was a deliberate failure on the part of plaintiff to use an adequate guard or protection against accident provided by defendant is not well founded. The adequate protection against accident referred to consisted of two empty boxes, put in the truck to block the granite that defendant was on his way to get. They . doubtless afforded very uncomfortable seats in driving over what apparently was a rough street. But be that as it may, we do not think that they come within the purview of the statute, and that the failure of .the plaintiff to obey instructions by sitting where he did does not debar him from recovering.”

In the case of Jones v. Landry, 10 La. App. 740, 122 So. 913, the First Circuit Court of Appeal said:

“Under section 28 of Act 20 of 1914, the Workmen’s Compensation Law, the burden of proof is on the employer where the defense is the intoxication and deliberate failure to use adequate guard against accident by employee.”

The facts in this case are as follows:

“The plaintiff, a young negro woman, was employed by the defendant to operate a moss ginning machine. Her duty was to feed moss to the machine which contained two steel rollers with brackets, or teeth, which enmeshed as the rollers revolved. While so engaged her hand was caught between the rollers and badly mangled, necessitating its removal. * * *
“The alleged failure to use the protection afforded her by her employer, is based upon the charge that plaintiff fed the moss to the rollers'* from the side, instead of from the front, where there is a board about thirty inches wide, called an apron, which, it is said, is intended to protect operators against getting their hands caught in the rollers. Perhaps this board affords some protection by keeping the body of the operator at a distance from the rollers, but it appears to us as very inadequate. The defendant testifies that he had warned plaintiff against the practice of feeding the moss from the side, but that she failed to obey instructions. Her failure to obey his orders should have resulted in her discharge and incidentally the saving of her hand, but mere disobedience to orders is not sufficient to defeat recovery by an employee, under this section of the law. See Farris v. Louisiana Long Leaf Lumber Co., 148 La. 106, 86 So. 670, and Sears v. Peytral, 151 La. 971, 92 So. 561.”

In other jurisdictions, the court, in interpreting a like section of the Compensation Act, the only difference in the wording being that the word “wilful” is used instead of the word “deliberate,” as used in section 28 of Act No. 20 of 1914, hold that in order to preclude recovery, under the provisions of the Workmen’s. Compensation Act, including liability for injuries received through willful failure to use a guard, or safety appliance, there must be something beside a mere voluntary and intentional failure by the workman to use a guard, and that some element of obstinacy, headstrongness., or intentional wrongdoing must be shown. 9 A. L. R. page 1377, see cases cited.

To hold that appellant is barred from recovery, under heading 3 of section 28, Act No. 20 of 1914, we would have to find that he vacated his seat and sat upon his dinner pail, after carefully considering the probable consequences of his moving. There is nothing in the record to justify our so holding. We find therefore that appellant is not barred from recovery, under heading 3 of section 28, Act No. 20 of 1914.

The remaining defense is that appellant, by his acts, had placed himself outside of his employment by opening his pocketknife and using it for his own benefit and credit, and is therefore barred from recovery.

The very moment the accident occurred, plaintiff was proceeding on a mission for his master, under his employment, and while it is true that the knife was not being used in same employment, plaintiff was using same to fix his suspenders to prevent his trousers from falling off, not an unusual thing, but a necessary thing for him to do. He was possibly negligent in making use of the knife while riding on a train over a log road, which was known to be none too smooth, and also negligent in using the knife while sitting on his dinner pail; however, the mere fact that he was proceeding negligently in the vehicle provided for him to ride in, -did not place him outside of the scope of his employment. He was still on the mission of his master and was not doing anything he was forbidden to do. Sears v. Peytral, supra.

When riding on this train, one might strike a match to light a cigarette, and the jar or jerk of the train cause him to burn his eye. He would certainly not be outside of the scope of his employment. It is not necessary, in order to recover for an accident happening on a train that carries employees to and from their work, that the employee take his seat and twiddle his thumbs the entire time while on the train. Any act not entirely unreasonable, and such as to be expected of an ordinary human being, will not place the employee out of the scope of his employment.

There were three contributing causes to the accident: Sitting' on the dinner pail; the open knife; and the jar or jerk of the train.

We think appellant is entitled to recover under the Workmen’s Compensation Law of Louisiana.

The evidence shows that all hospital and medical bills up to the date of trial had been paid by appellee, under medical insurance carried by it for appellant, and he is therefore not entitled to any judgment for medical and hospital fees. The record also shows that his knee is stiff to a certain extent. He had complete flex-ion of about thirty per cent mobility at the time of trial on February 17, 1931.

Appellant was earning at the time of the accident $15 per week, and as there is proof of the total disability of the leg up to the time of trial, he should have judgment for total loss of function of the leg from the date of the accident, September 24, 1930, until February 17, 1931, and for partial loss of use of function of the leg to the amount of 70 per- cent from February 17, 1931, until the full expiration of one hundred seventy-five weeks, or until disability ceases.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that appellant, James E. McClendon, do have and recover judgment against the appellee, Louisiana Central Lumber Company, for compensation for one hundred seventy-five weeks, or until disability ceases, said payments to begin as of date October 1, 1931, and in the amounts as follows:

From September 24, 3930, to February 17, 1931, at the rate of $§.75 per week; and from February 17, 1931, on, at the rate of $6.82 per week, with legal interest thereon from due date of each payment; appellee to pay all cost of both courts.


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    No. 4058
    Second Circuit
    BARHAM ET AL. v. STATE LIFE INS. CO. OF INDIANA
    (July 14, 1931. Opinion and Decree.)
    ■ J. W. Elder, of Ruston, attorney for plaintiffs, appellants.
    Barksdale, Warren & Barksdale, of Ruston, attorneys for defendant, appellee.
   DREW, J.

Plaintiffs, alleging that they are the sole heirs at law of W. F. Bar-ham, deceased, sued the defendant company on a life insurance policy for $1,000, the policy being for $1,000, with a provision for double indemnity in certain events.

Defendant paid the principal sum, but refused to pay the extra $1,000 on the ground that the “deceased’s death, though violent and external, was not accidental.. The provision of the policy under which the plaintiffs claim reads as follows:

“During the premium paying period of this policy and excluding any time while the same may be in force as extended insurance, all premiums having been paid, and this policy being then in force, in the event of the death of the insured, resulting from bodily injury, sustained and effected directly through external, violent and accidental means (murder or suicide, sane or insane, not included) exclusively and independently of all other causes, provided such death shall occur within ninety (90) days from the date of the accident, the company will pay to the beneficiary or beneficiaries hereunder, in addition to the amount otherwise due, under the policy, the sum of one thousand dollars.”

The evidence introduced showed that deceased was working for a man by tbe name of Burt and came home on this occasion about night and in a seemingly bad humor. Burt told him to come to supper, and Barham replied that he did not want supper, but more land. Burt told him that he could not get more land. Barham (the deceased) then picked up a poker which Burt took away from him. The latter turned to go into the other room, and -when he looked around, Barham had a shotgun drawn on him. Burt made a dive for him and heard the gun go off; He reached Barham, twisted the gun out of his hand, and began to hit him over the head with it and knocked him down several times; Barham getting up and fighting back, but finally remaining down.

From the coroner’s evidence, Barham’s skull seemed crushed when he arrived at Burt’s house about two hours later and found Barham dead. There were no witnesses to the fight, and Burt’s testimony as to what occurred is all the evidence there is. The only question s'eemed to be as to whether Barham fired the gun or not, as the doors were closed and only one window was open, and a close examination failed to disclose any sign of a shot in the wall, doors or fireplace. The coroner testified that he took charge of the gun, examined it closely, and that the gun did not show any signs .of having been fired recently.

On this testimony, about which there is no dispute,' the lower court rendered judgment rejecting plaintiffs’ demands and they have appealed.

From the agreed statements of facts, it is shown that Burt was not indicted, although he was placed under bond, which bond has since been canceled. The above facts show that the insured was killed while in a fight with Burt and that he was not acting in self-defense, but was the aggressor. Before plaintiffs, can recover, it must be shown that the death of the insured was not only caused by external and violent means but also by accidental means. Cooley’s Briefs on Insurance (2d Ed.) vol. 6, p. 5251.

It is sure that the insured came to his death by external and violent means, and the only question is: Did he come to his death by accidental means? We think not. In the case of Franchebois v. New York Life Insurance Co., 171 La. 358, 131 So. 46, 50, the court said;

“Our conclusion is that the insured was the aggressor and by his own act precipitated the difficulty which resulted in his death. Therefore, his beneficiaries cannot successfully urge that, within the meaning of the policies, the insured’s death was brought about by accidental cause.” Also see Meister v. General Accident Corporation, 92 Or. 96, 179 P. 913, 4 A. L. R. page 718.

Plaintiffs contend that when the provisions of the policy excepted from the accidental causes that it would be liable for murder and suicide, it restricted its limit of liability for death to those two causes, and that death caused by fighting is. covered by the policy, regardless of who was the aggressor. We cannot agree with this contention. The meaning of the exception of murder and suicide is that if death was caused by accidental means, it was liable except where death was caused by suicide or murder. Plaintiffs also contend that death was not to be expected or anticipated in a fight ‘such as the insured provoked. The law of this state and most other jurisdictions is, however, to the contrary, and it is almost universally held that when the insured culpably provokes a difficulty and is killed, his death is not caused by accidental means.

We are convinced that the judgment of the lower court is correct, and it is therefore ordered, adjudged, and decreed- that the judgment of the lower court be affirmed, with all costs.


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    No. 4089
    Second Circuit
    BORDELON v. GUARANTY FIRE INS. CO. OF RHODE ISLAND
    (July 14, 1931. Opinion and Decree.)
    Hakenyos, Provosty & Staples, of Alexandria, attorneys for plaintiff, appellant.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

This suit is brought on an insurance policy insuring an automobile against theft, excepting “by any person or persons * * * in the assured’s service or employment, whether the theft occurs during the hours of such service or employment or not,’’ and the defense, which was maintained, was that an employee of the insured had stolen the automobile.

It is conceded that plaintiff, who was the general sales agent for a manufacturing company located at Cincinnati, Ohio, employed a salesman at Alexandria, La., on or about April 1, 1929, to sell the products of the company in the southeast part of Louisiana; that the automobile was delivered to the salesman to be used by him,- and that the automobile - was last seen at Hammond, La., on April 8, 1929, when the salesman borrowed $50 on his promise to pledge the automobile to secure the loan, but, under some pretense requiring the use of the automobile, he drove away in the automobile and failed to return.

Plaintiff said, however, that he had a telephone conversation with the salesman who was at Covington, La., in the afternoon of April 9th, in which conversation he discharged the salesman and directed him to leave the automobile on one of ■the streets of Covington in front of a certain hotel, and that on April 10th he (plaintiff) received a telegram from the factory at Cincinnati, advising him that the salesman was there, complaining of having been discharged. Evidence was also adduced showing that plaintiff had sent a friend to Covington to take possession of the automobile, who wasi unable to locate same.

Counsel representing the parties agree that, if the salesman was at Covington, La., on the afternoon of April 9th, it was impossible for him to have been in Cincinnati on April 16th, traveling either in an automobile or by train; and the evidence showing plaintiff advised the insurer soon after the disappearance of the automobile that the date of the telephone conversation referred to above was April 5th, and plaintiff’s testimony reflecting .that he was not certain that the date of the conversation was April 9th, indicates the conversation ’ occurred prior to April 8th, and, considering the circumstances shown to have occurred on that date, we are of the opinion that the weight of the evidence shows that the salesman took the automobile.

Appellant urges, however, that, even though the salesman did take the automobile, he was not in the employment of the insured at that time, having been previously discharged; and that the provision relieving the insurer of liability when the theft was by an employee is. not applicable.

While 'the exception should be construed favorably to the insured, yet, the evidence showing that the automobile was delivered to the salesman to be used in his employment, and that it was not delivered to the insured after the salesman was discharged, we are of the opinion that, under a reasonable construction of the exception, the theft was within the exception, and .that the insurer was not liable.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.


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    No. 3949
    Second Circuit
    CARROLL v. INTERNATIONAL PAPER COMPANY
    (July 14, 1931. Opinion and Decree.)
    Madison & Madison, of Bastrop, attorneys for plaintiff, appellant.

      Todd; Todd & Eraser, of Bastrop, attorneys for defendant, appellee.
   DREW, J.

Tom J. Carroll, a carpenter, while in the employ of the International Paper Company, on January 30, 1928, was injured. On June 30, 1928, he filed suit for compensation alleging permanent total disability and prayed for judgment for 65 per cent of his 'weekly wages for a period not to exceed four hundred weeks. The district court rendered judgment in favor of plaintiff for the sum of $20 per week, payable weekly, for a period not to exceed two hundred weeks. This, court, on May 8, 1929, held that Carroll had permanently lost the use of function of his right arm, and affirmed the judgment of the lower court. Carroll v. International Paper Co., 14 La. App. 532, 122 So. 131.

In July, 1930, the defendant, International Paper Company, alleging that Carroll had fully recovered, ruled him into court to show cause why his compensation should not be modified, in accordance with section 20 of Act No. 85 of 1926 (page 123). It alleged that he had prior to the filing of the rule, and since the judgment of the Court of Appeal, performed various and sundry acts of manual labor which show that he is fully recovered.

After trial in the district court, the rule was dissolved at the cost of International Paper Company. Prom this judgment it has appealed to this court.

The same doctors who testified in the original suit testified in this case, and each of them reiterates his former testimony. The lay witnesses show conclusively that Carroll was in as bad condition, if not worse, at the time of the trial as at the original trial. It is useless to rehash the testimony of each witness, as we are convinced that the former judgment should not be modified.

Carroll reconvened in this case and asked that the original judgment be increased from two hundred weeks to four hundred weeks. He was awarded judgment. for the permanent loss of function of his right arm, and we know of no greater sum that could be awarded him than he has received.

The judgment of the lower court is correct, and it is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, with all costs.


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    No. 4048
    Second Circuit
    DAVID v. COUVILLION
    (July 14, 1931. Opinion and Decree.)

      Polk & Robinson, of Alexandria, attorneys for plaintiff, appellant.
    Hákenyos, Provosty & Staples, of Alexandria, attorneys for defendant, appellee.
   DREW, J.

In this case the learned judge of the lower court has written a very exhaustive opinion which clearly sets forth the issues, facts and law applicable thereto. We fully agree with his findings and therefore adopt the written opinion of the lower court as the opinion of this court. It is as follows:

“This is an action to establish the bourn dary line between the property of plaintiff and that of defendant, the allegation of plaintiff’s petition being that the boundary between plaintiff and defendant ‘has never been fixed, established or determined, or if ever fixed — was wrongfully fixed — and is no longer to be seen and is obliterated.’
“Defendant, in answer, denies that the boundary has never been fixed, and alleges that ‘there is no cause of this action; that the estates have been separated and the boundary fixed and defined for a period of 45 years; that the boundary is determined, is fixed by innumerable official maps and surveys and the physical evidence thereof still exists * *
“Upon the filing of the suit, plaintiff prayed for and obtained an order for a survey, the court appointing Harvey S. Henning, surveyor and civil engineer, to inspect and examine the premises, survey same, ascertain their limits and boundaries. This being done, the proces verbal filed by the surveyor, the case was called and trial begun, when, in the progress of the trial, it became apparent to the court that there was a conflict between the findings of Mr. Henning and other testimony introduced, especially that of Mr. H. J. Daigre, Parish Surveyor, who had previously, at the request of defendant, examined the premises and made certain measurements and findings, the court of its own motion ordered another survey by a disinterested surveyor, and accordingly appointed Mr. O. P. Reiszner, a competent surveyor of Rapides Parish, to make a survey of the property in order that the court may be able to determine the correct boundary in dispute. Mr. Reiszner made the survey and filed his proces verbal, whereupon the trial was resumed May 7, 1930, the trial having been postponed November 14, 1929, for the additional survey.
“Plaintiff contends that the survey of Mr. Plenning correctly establishes the disputed boundary, and asked that it be adopted by the court. Defendant contends that Mr. Reiszner’s survey establishes the correct boundary and asks it to be decreed to be the established boundary between the properties.
“Mr. Henning began his work at Riverside Drive, which is next to Red River, which, from certain measurements and calculations, he ascertained the angle between the property lines of 'Riverside Drive and Main Street, which he states was necessary ‘to determine the direction of the lines bounding the block containing the property to be surveyed,’ since the property from Riverside Drive clear through to the property, line of which is in dispute, is one continuous block. In fact, according to the Sylvester Map of Pineville, the whole property from the Riverside Drive to Harrison Street, on northeast of the plaintiff’s and defendant’s properties constitute one long block, bounded in front by Main Street and in rear by Lakeview Avenue. After Mr. Henning, by his system of measurements, worked out up to intersection with Main Street of the old Johnson-David line, all as is explained by him in his proces verbal. He then states he ran a line from that point of intersection, out from Main Street, at an angle of 90° 32', his previously determined angle between Main Street and Riverside Drive, and hit a stump center, which he was informed by old citizens was the stump of an old tree which stood on what had been recognized as the property line between Johnson and David. This David spoken of here, however, is not the plaintiff in suit, Robert A. David, nor is what is referred to as property of David any pdrt of the properties, the line of which is in dispute, but is property, or was property, of an ancestor of Robert A. David. The finding of this old stump led Mr. Henning to believe more strongly that his survey was correct up to that point.
“Having located what he believed to be the old Johnson-David line, Mr. Henning used the measurement indicated in the old Bringhurst 1860 Map, recorded in Conveyance Book ‘B’, page 397, copy of which is in evidence (Exhibit ‘D’, attached to the Reiszner survey), which shows a front of 151 feet along Main Street; while the plat shows 151 feet, Mr. Bringhurst, in his written declaration accompanying the plat, says, ‘This lot whose front is supposed to be (151 feet), one hundred fifty-one feet, has a depth of one arpent, bounded on the northeast by lot belonging to Mrs. Schrouder, on the Southeast by lands of Escophia Succession, on the southwest by lot belonging to Mr. Johnson * * *’. Mention is here made of this description in connection with the plat for the reason that both Mr. Daigre and Mr. Reiszner give it as their opinion that this statement of 151 feet on the Bringhurst plat must be erroneous. Also, the W. H. Sylvester official map of the Town of Pineville (Exhibit ‘C’ attached to the Reiszner survey), made in 1903, gives this Bringhurst line as being only 76.5 plus 60, or 137.5 feet. This is the space intervening between the Johnson property and Schrader (or Hardtner) property. Mr. Henning, however, taking the 151 measurement as being true and correct, ran that distance and establishes what he considers as the DavidSchrader (or Hardtner) line, constituting the southwest corner of Robert A. David’s lot, thence continues 60 feet to the intersection of the disputed line with Main Street, being point T’ in ink on his Exhibit ‘A’ attached to his .proces verbal. With that 60 feet front on Main Street, he projects parallel lines back 339 feet to Lake View Avenue, thus embracing the property of Robert A. David. This outer line, beginning at figure T’ on Exhibit ‘A’, is what Mr. Henning finds and determines to be the disputed line between plaintiff’s and defendant’s properties. He notes in conclusion that this line checks correctly with the survey by Bringhurst as indicated by his plat. He also says it checks ‘according to distance with the survey of Sylvester’, and that he finds- that the building erected by defendant encroaches ten feet on the front and 11.87 feet on the back, upon David’s property. Mr. Henning runs these two lines back parallel for the reason that the description of the property as acquired by plaintiff from his vendor, James I. Bradford, recites that these lines run back parallel to each other.
“Mr. Robert A. David, plaintiff, in his testimony, says, (page 8 et seq.): ‘There is no fixed line’ between him and defendant, Mr. Couvillion, not as he knows of and he does not think it is. When asked:
“ ‘Q. Is there any evidence there showing the location of this line and where it should be?
“ ‘A. No.
“ ‘Q. Has there ever been to your knowledge a fixing or determination or establishment of this line, either by consent or by judicial survey?
“ ‘A. No.
“ ‘Q. And there are no physical evidences of the location of this line at this time?
“‘A. Not as I know of.
“ ‘Q. If they were there, you would know it?
“‘A. Yes, sir.’
“It would, therefore, seem that no physical boundary line had been fixed between plaintiff and defendant.
“Going back to the Johnson-David line and the David-Schrader line, and Mr. Bringhurst’s plat showing 151 feet between the two lines, as forming the basis from which Mr. Henning finally determines the line ■in dispute between plaintiff and defendant, tbe attention of tbe court is now di- . reeted to the testimony of Mr. Daigre and Mr. Reiszner. In the first place, Mr. Daigre testifies that he has been familiar for many years, in fact from his boyhood, ' with the actual physical Johnson-David line, also the David-Schrader line; that in his opinion, quoting:
“ T have very grave doubts about the Johnson line, what I call the Johnson line and where the fence has existed for the last forty-five (45) years, is the same line that Mr. Bringhurst established when -he measured one hundred and fifty-one (151) feet. (See page 110 et seq.) * * *
“ T believe he (Mr. Bringhurst). measured a little over that fence, and Johnson ignored it. There is nothing to show that Johnson accepted it and it is over in the Johnson property. I say that because I know intimately where the Hardtner line was and I have measured it and found it there. There is not enough distance existing in what Willie Sylvester’s map shows and the survey I have made myself.
“ ‘Mr. Sylvester’s plat, and the line that exists to my knowledge is the same. The Henning plat comes to the same place, but. I do not believe that the one hundred and fifty-one (151) feet measured by Mr. Bringhurst in 1869, is that same place, or if he measured from the Hardtner line, as I know it and have known it for forty-five years. In other words, there is not one .hundred and fifty-one feet between the Hardtner line as I knew it and the Johnson line as I have known it for the last forty-five years.’
“Mr. Daigre is then asked:
“ ‘Q. He started from what was always known as David-Schrader line and measured one hundred and fifty-one (151) feet south, but that Johnson never accepted that, and Johnson’s fence and line has always remained where it was, regardless of the one hundred and fifty-one (151) feet measured south by Bringhurst in 1869?
“‘A. Yes, sir, that is the conclusion I came to, and I cannot see how it could be otherwise.’
“Mr. Daigre’s belief is that when Mr. Henning accepted the 151 feet shown on the Bringhurst map and measured accordingly, he was in error.' because the distance as represented by those figures was ■not in fact 151 feet, but a less number of feet. Then he goes on to give his reasons from personal knowledge of these lines through a long period of time.
“Mr. Reiszner came to the same conclusion in his survey and is in agreement with Mr. Daigre’s opinion. He states (p. 135, et seq.) he checked his distances from Harrison Street according to Sylvester’s official map of Pineville, checking, as he states, clear through to Riverside Drive on Red River, using the Sylvester Map, also evidences of improvements on the general lot lines, also had abstracts of title to the Hardtner (Schrader) property, and the old J. David property adjoining it on the southwest. At page 139 of tbe testimony, Mr. Reiszner is asked:
“ ‘Q. I take it from your proces verbal, and particularly the Sixth Paragraph on page 2, with reference to Exhibit “D”, that you didn’t accept that distance of one hundred and fifty-one (151) feet between the David and Johnson line' as shown on that plat?
“ ‘A. No, because it was in conflict with everything else.
“ ‘Q. In other words, that distance did not check with any other distance in your survey?
“ ‘A. Yes. Now, I might state further that on that plat, there is nothing to show that the one hundred and fifty-one feet, measured to the Johnson line was acquiesced in by Johnson. There is no evidence that the present Johnson line and this distance of 151 feet from point “A”, is the same. Absolutely no support in evidence that they are the same.
“ ‘Q. By that, you mean what?
“ ‘A. There are a great many things we might take as evidence. Measuring 151 feet from the Johnson line you don’t strike any line, and taking and adding that other dimensions of other purchasers, you don’t any of the other lines up there.’
“In his proces verbal, Mr. Reiszner (see last page) says that having reached this conclusion, he fixed the point of intersection of David-Hardtner (Schrader) line and the lower line of Main Street in accordance with the Sylvester Map, and from that point he measured the 60 feet front of the property of plaintiff.- " “Mr. Reiszner then states in his proces verbal, quoting:
“ ‘Exact literal compliance with the description in deed of Hardtner to Andrews and Fenstermaker is impossible.’
“Then he says:
“ ‘My interpretation of the intent of this description and that in which there would be the least conflict is as follows:
“ ‘A lot fronting on Main Street, 90 feet wide and extending back between parallel lines at right angles to Main Street, and -a lot fronting on Lakeview Avenue, being a strip 67.5 feet wide off the east side of Lot 3 of the division of the Pouissin Estate.’
“He then says: ‘This interpretation was concurred in by Mr. S.' Henning, C. E., and H. J. Daigre, Parish Surveyor.’ Then, finishing the description, he says: T then extend the disputed line through to Lake View Avenue in accordance with the above interpretation, marking the points A-B-C-D with iron stakes. (See Exhibit ■ “B”).’
“Going back to the question as to whether Mr. Henning’s survey, or that of Mr. Reiszner, was and is the correct fixing and determination of this disputed boundary line, the court, having considered the testimony on both side's of this question, is of the opinion that the testimony preponderates in favor of the latter, that of Mr. Reiszner. Mr. Daigre who is Parish Surveyor and is competent and experienced, and in addition, he is and has been for the past forty-five years thoroughly familiar with the old physical property lines — that of Johnson-David and the David-Hardtner (or Schrader) lines, taken in connection with the very strong probability that the 151 feet shown on the Bringhurst map does not correctly represent the actual distance intervening between the Johnson property and the Schrader property, and the fact that there is ho indication that Johnson ever acquiesced in the Bringhurst’s survey, was not a party to it, that coupled with Mr. Reiszner’s findings and views, and that of Mr. Sylvester’s official survey and map of the Town of Pineville — all these facts and circumstances would seem to outweigh Mr. Henning’s version of the matter.
“Now, regarding the interpretation Mr. Reiszner places upon the wording of the descriptions in both plaintiff’s and defendant’s deeds,. as being the intent of the parties, wherein in the plaintiff’s deed it recites the lines run back parallel, and in defendant’s deed it recites as to o‘ne of the lines that it runs back a certain distance to Lakeview Avenue, whereas Mr. Reiszner’s description indicates an offset in the lines, it can be said, as Mr. Daigre explains these lines can have an offset at some point and still be lines parallel to each other, thereby fulfilling the wording in the deed. In defendant’s deed there is shown an offset in the line returning from Lakeview Avenue to Main Street, and it is quite possible and probable that the parties had in mind describing an offset in the line running from Main Street over to Lakeview Avenue and by oversight the description of the offset was left out. At any rate, to make these lines conform to lines of other lots shown on the Sylvester Map, wherein offsets are shown and which seem to be the general scheme of descriptions of all of the lots adjacent to and near those of plaintiff and defendant, it is highly probable that offsets were intended to be shown in the lines of these properties. Also, this interpretation, according to Mr. Reiszner’s proces verbal, was concurred in by Mr. Henning as well as Mr. Daigre. So, this being true, the court sees no reason why such interpretation should not be adopted by the court, and therefore the court adopts same.
“In accord with the views above expressed, the court is of the opinion that the survey of Mr. Reiszner should be adopted, and the line established by him as being the line dividing the properties of plaintiff and defendant is the true and correct line of division, same being the line indicated by the letters A, B, C, D on Exhibit‘B’ attached to and accompanying the proces verbal of Mr. Reiszner in this case, and let there be judgment accordingly.
“The cost of this case is ordered to be paid by both parties in equal amounts.”

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed.