author: RRAIBORNE, J.

text:
    No. 9414
    Orleans
    WUNDERLICH v. SIMPKIN, Appellant
    (July 19, 1926. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Landlord and Tenant —Par. 84, 96.
    Where month after month the lessor has acquiesced in the lessee paying his rent some time after it becomes due, and afterwards desires the lessee to pay on the day the rent becomes due, he should give the lessee notice to that effect and make' demand upon him for payment. Without that notice he cannot issue a provisional seizure, and without demand he cannot recover costs, when defendant complies with the demand of the petition.
    2. Louisiana Digest — Judgment—Par. 18, 26.
    A plaintiff may obtain immediate judgment for the amount admitted to be due by defendant and deposited in court.
    3. Louisiana Digest — Tender—Par. 7.
    A plaintiff who has refused a legal tender can recover neither interest nor costs.
    4. Louisiana Digest — Landlord and Tenant —Par. 84; Bills and Notes — Par. 240.
    Judgment may be rendered for notes that have matured pending the litigation.
    5 Louisiana Digest — Attorneys—Par. 53.
    Attorney’s fees stipulated in a contract will not be allowed when the suit is unnecessary or premature.
    Appeal from Civil District Court, Division “D”.
    Action by Anna Wunderlich against Jacob Simpkin.
    There was judgment for plaintiff and defendant appealed..
    Judgment affirmed in part and reversed in part.
    Terriberry, Rice & Young, Andrew R. Martinez, of New Orleans, attorneys for plaintiff, appellee.
    Dart, Kernan & Dart, Louis C. Guidry, W. O-. Hart, of New Orleans, attorneys for defendant, appellant.
   RRAIBORNE, J.

This is a suit for rent accompanied by provisional seizure.

Plaintiff alleged that by an act under private signature dated July 15, 1921, she leased to Jacob Simkin the property Nos. 1413-15 Prytania street for twenty-four months commencing October 1, 1921, and ending September 30, 1923, for the price of $125.00 per month, payable on the first day of each month, evidenced by twenty-four notes made by the lessee to his own order, bearing eight per cent interest from maturity; that it was stipulated in said lease that “should the lessee at any time fail to pay the rent promptly at maturity the rent for the whole unexpired term of this lease shall without putting said lessee in default at once become due and exigible; and in case the said lessee shall pay an additional sum of ten per cent on the amount so due and exigible as counsel fees”; that the rent note due June 1, 1923, was unpaid “notwithstanding demand” and by the terms of said lease the other five notes became due and payable, making in all $625.00 with eight per cent interest; petitioner further alleged that she had good reasons to believe that the lessee would remove the property from the leased premises. She prayed for provisional seizure and for judgment for $625.00 with eight per cent interest from maturity of the notes, ten per cent attorney’s fees and costs.

The order for provisional seizure was granted and the writ issued; the contents of the leased premises were seized and bonded by the defendant.

The defendant filed a rule against the plaintiff to sho.w cause why the provisional seizure should not be set aside on the following grounds:

1st. That the affidavit annexed to the petition is insufficient and not according to law.

2nd. That mover is not delinquent in the payment of his- rent; that since the maturity of the first note, mover has been accustomed to paying his rent at any time within thirty days after the maturity of his rent notes, with the consent, knowledge, and without any objection on the part of the plaintiff; that he had not been notified by the plaintiff that this method of paying his rent was not satis; factory and had no notice that the rent maturing on June 1, 1923, would have to be paid in any other manner; that on the day this writ was issued mover attempted to pay the rent note maturing on June 1, 1923, at the Citizens Bank and Trust Company, on Gravier street, in this city, where the notes were deposited for collection; that he was advised that the rent note had been withdrawn by the owner; that he has always been ready to pay said note, and is now ready and willing to do so; that he now tenders the amount thereof, namely $125.00, in payment of his rent, which he now deposits in the registry of the court.

To this rule plaintiff answered that she “specifically denied that she gave permission to the defendant to pay his rent after maturity, but on the contrary avers that she repeatedly notified the defendant that the rent had to be paid punctually; that defendant has been urged continually to pay the rent punctually as it fell due, and, although he promised faithfully to do so, repeatedly ignored these demands.”

Defendant filed an answer containing practically a repetition of the allegations of the rule to set aside the provisional seizure.

The district judge dismissed the rule to set aside the provisional seizure.

The plaintiff and defendant then agreed that the judge should decide the case on the merits of the evidence heretofore submitted on the trial of the rule to set aside the provisional seizure.

There was judgment as prayed for on the merits and the defendant appealed.

Of course, the burden was upon the defendant to prove his defense that he was in the ■ habit of paying his rent after il;.was due with plaintiff’s consent, and without any objection on his part, and that this suit was filed against him without previous amicable demand.

This suit was filed June 18, 1923.

The -evidence is that the defendant has been a tenant of the plaintiff for the last eight or ten years; that in the earlier days he .was fairly prompt; that he grew gradually worse and worse, until he never paid his rent on the day it became due but only several days after and sometimes weeks; on December 3, 1922, plaintiff called the defendant’s attention to the fact that he had paid'1 the October rent only on December 2, and that the November rent was due, and that he would be much obliged to him if he would arrange to take up the November rent during thiá week. On December 12 following, he writes again to defendant that he has not paid his November rent and advises him that the note- must be taken up within forty-eight hours and concludes by insisting that from now on there must be no delay in the monthly payment and that the rent must be paid promptly within the first three days of each month. But it appears that this threat was not carried out. It remained “brutum fulmen”.

The month of November appears to have been paid only on December 19.

On December - 23, 1922, plaintiff again writes to 1 defendant:

“Enclosed you Will find rent note for November, which was taken up by check you sent me a few days ago. In sending it to you I am taking the opportunity of recalling to your notice the contents of letter to you under date December 12, 1922, in which you were, told that in future- the rent notes must be promptly taken up. I trust you will heed this notice and prepare yourself to take up the notes each month as they come due not later than the 3rd or 4th of each month. By so doing you will save trouble to both of us.”

On January 9, 1922 (1923), the defendant wrote to the plaintiff:

“I am very sorry it happened that I fell back in rent, but next Monday I will take out my rent note, and from February 1, I will meet my rent notes prompt.”

Notwithstanding this letter the December rent was paid only on January 15, and the month of March on April 23.

There is no other correspondence on the subject.

The plaintiff testified that he called several times on the defendant who paid the April rent only on May 31; he told him he would write no more, but that the attorney would take care of him; and that at his request his lawyer, Mr. Young, wrote the defendant a letter demanding payment within forty-eight hours.

Mr. Young, plaintiff’s attorney, did not testify in the case.

The defendant denied having received a'letter from Mr. Young; he also denied that the plaintiff had told him that he would have to pay his rent promptly.

He deposited in court the rent for May and June and for all the other months.

This evidence makes it clear that notwithstanding the threatening letters of December 12 and 23, he, plaintiff, allowed the defendant to continue to pay his rent after it became due for the six months of November, 1922, to May 1, 1923, without action on his part. There is no evidence that during those six months plaintiff warned. the defendant . to pay his rent at maturity; he was evidently indulging him as an old tenant.

The situation in this case is the same a's existed in the leading case of Bacas vs. Mandot, 3 Orl. App. 324. In that case the court said:

“Under such condition the obligee (lessor) must give notice that he will thereafter so insist on payment at maturity and put the obligor in default, and if he fails to do so seasonably and the obligor (lessee), relying on the past conduct of the obligee, fails to pay the rent or next installment at maturity, the obligee will be equitably estopped from demanding the dissolution or damages, provided the payment be made as has been usual, shortly after the maturity.”

See also Roth vs. Fabian, 7 Ct. App. 422; Standard Brewing Co. vs. Anderson, 121 La. 935, 46 South. 926.

In the case of Bruning vs. Griuage, 4 Orl. App. 429, this court said on p. 43:

“We find that of the four notes preceding the one sued on, the first of these was paid at the Whitney-Central Bank on the 13th day of November, 1905. That two other notes were paid on the 16th of the month instead of on the first, and a fourth note was paid on the 17th of the month.”

The provisional seizure issued on March 16. The court said:

“When a lessor month after month, even though he does not expressly agree so to do, without objection or protest, receives and accepts the rental, at a later date than that specified in the contract of lease and rent notes, he cannot, without previous notice to his tenant, given, not later, than the time of the past payment, demand said rental at an earlier day than that upon which notes were customarily paid, and a writ of provisional seizure under these circumstances will be held to. have improvidently issued.”

In the case of Standard Brewing Co. vs. Anderson, 121 La. 935, the court approved the ruling in Bacas vs. Mandot.

Bonnabel vs. Metairie Cypress Co., 129 La. 928, 57 South. 271, affirmed the Standard Brewing Co. case and said that the plaintiff should have presented the notes “for payment before suing out a provisional seizure”.

There is no evidence in this case that after the letter of December 23, 1922, the defendant was notified either verbally or in writing that he must pay his notes at maturity, or that there was any demand made upon the defendant for the payment of his notes. On the other hand, the evidence is conclusive that defendant continued to pay his notes for the months of December, 1922, and January, February, March and April, several days and weeks after maturity. It is also shown that plaintiff filed this suit against the defendant without notice or demand.

The plaintiff is entitled to judgment for the full amount of the notes as they have all matured since the filing of this suit. Rideau vs. Bornet, et al., 1 La. Ann. 408; Miss McCalop vs. Fluker’s Heirs, 12 La. Ann. 551; Cooley & Phillips vs. P. Esteban, 26 La. Ann. 516; Shreveport Ice & Brewing Co. vs. Mandel Bros., 128 La. 318, 54 South. 831; Bonnabel vs. Metairie Cypress Co., 129 La. 928, 57 South. 271. But he is not entitled to costs, because he filed the suit without having previously made a demand, and because the defendant complied with the demand and paid the note due at the time of the suit and paid all the others at maturity.

“When there is no amicable demand defendant will be allowed costs.” 1 H. D. 3261-9; Davis vs. Coann, 14 La. 257; Varion vs. Debergue, 18 La. 40; Wood vs. Hennen, 9 La. Ann. 264; Mead vs. Oakley, 7 Mart. N. S. 265; Bailey vs. Baldwin, 8 Mart. N. S. 117; Stillwell vs. Bobb, 2 Rob. 329; Tietjen vs. Penniman, 1 La. 268; Ford vs. Ford, 1 La. 204; Allain vs. Langer, 4 La. 151; Torre vs. Messerbey, 4 La. 204; Babcock vs. Shirley, 11 La. 76.

In Torre vs. Messerbey, 4 La. 204, where attachment had issued prior to amicable demand, Judge Porter said;

“If the reason of the rule be that the creditor should be punished ip costs for suing where he might have been paid by demanding the money from the debtor, it applies with more force to a case where he resorts to so severe remedy as that by attachment.”

In the leading case of Baptiste vs. Soulie, 13 La. 268, the court said:

“Where no amicable demand has been made, if upon service of the citation the defendant complies with the prayer of the petition, the costs incurred must be borne by the plaintiff, but if, instead of this, he comes into court to defend the action and judgment is subsequently given against him, the legal presumption which operated in his favor has ceased to exist and we see no reason why he should recover any costs made after first appearance.” Allen vs. Wills, 4 La. Ann. 97; First Municipality vs. Bell, 4 La. Ann. 121; Phelps vs. Coggeshall, 13 La. Ann. 440.

It is plaintiff’s fault if he did not take the sums admitted to be due by the defendant and deposited by him in the registry of the court.

“Where defendant in his answer admits that part of the amount claimed by plaintiff is due, the latter may take judgment for the amount so admitted and prosecute his suit for the remainder.” Frey vs. Fitzpatrick, 108 La. 125, 32 South. 437.

■■After a legal tender has been made and refused, the defendant' owes neither interest nor costs. Murphy vs. Hussey, 117 La. 396, 41 South. 692.

Nor is the plaintiff entitled to attorney’s fees. The conclusion we have announced above that the suit was unnecessary and premature precludes such a claim. It goes without saying that it is only when the lessor exercises a legal right in bringing a suit against the lessee that he becomes entitled to recover attorney’s fees spent by him; but he cannot take advantage of his illegal act in bringing a suit. Succession of Burke, 107 La. 85, 31 South. 391; Abramson vs. N. O. Brewing Assn., 110 La. 1013, 35 South. 268; Succession of Howell, 121 La. 955, 46 South. 933.

It is therefore ordered that the judgment appealed from in favor of plaintiff and against the defendant for six hundred, and twenty-five dollars be affirmed; that plaintiff’s demand for interest and attorney’s fees and costs be rejected and that the writ of provisional seizure be dissolved, the plaintiff to pay all costs in both courts.'


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9317
    Orleans
    PETIT, Appellant, v. DEPASS
    (July 5th, 1926. Opinion and Decree.)

      fSyllabus by the Court.)

    1. . Louisiana Digest — Burial Places — Par. • 1, 4.
    The ownership of tombs and burial lots is acquired under -such regulations and subject to such conditions as may be prescribed by the owners of the cemetery, and are not subject to the general laws, relative -to the transfer of real estate.
    2. Louisiana Digest — Burial Places — Par. 4.
    The recognition, by a cemetery association, of the ownership of the upper vault ■ of a tomb creates a presumption that such ownership was acquired in accordance. with its rules 'and regulations and subsequent purchasers of the tomb are charged with such knowledge.
    Appeal from Civil District Court, Division “E”. Hon. Wm. H. Byrnes, Judge.
    Action by Louise Petit against Mr. and Mrs. Samuel Depass.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Chas. Louque, of New Orleans, attorney for plaintiff, appellant.
    A. A. Calongue, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This suit involves the ownership of a tomb in the St. Louis Cemetery.

Plaintiff claims to have acquired by private conveyance from Eglantine Petit, who, it is alleged, inherited the tomb from her father Louis Petit.

Defendants assert title to the upper vault of the tomb (there being two vaults, an upper arid a lower) through their grandmother, Erminie or Emilie Peyran. There was judgment recognizing plaintiff as the owner of lot on which the tomb stands and as owner of the lower vault of the tomb with the right of burial therein, and recognizing Mrs. DePass, together with ,the lawful heirs, Emilie Peyran, as the owner of the upper or top vault of the tomb with right of buria-I therein.

Plaintiff alone has appealed. The only question, therefore, which we are concerned with, is the correctness of the judgment insofar as it awards the top vault of the tomb to defendants. There is considerable testimony in the record as to who built the tomb, who cared for it during the nearly one hundred years of its existence and the names of the individuals buried therein. Much of this testimony is hearsay which we are asked to disregard.

It has been established, however, by competent evidence,' that the tomb for a period long prior to the date of plaintiff’s acquisition (1902) has stood on the books of the cemetery in the names of Peyran and Petit jointly. Peyran being the registered owner of the upper vault and Petit the owner of the lower. These books are presumed to be correct. Moreover, under Sec. 387 R. S., sales of burial lots, tombs, etc., are regulated by the rules and requirements of the owners of the cemeteries and are not subject to the general provision of our law with respect to the transfer of real estate. The recognition by the cemetery authorities of the ownership of Peyran of the upper vault creates the presumption that the ownership was acquired in accordance with the rules of that association and this presumption has not been overcome by any evidence before us.

We see ho error in the judgment appealed from and it is therefore affirmed.


author: WEBB, J.

text:
    No. -
    Second Circuit
    ALEXANDER v. LATIMER
    (June 30, 1926, Opinion and Decree.)
    (Oct. 4, 1926, Rehearing Refused.)
    (Nov. 3, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Master and Servant —Par. 154, 156.
    The general rule in construction under the Workmen’s Compensation Law No. 20 of 1914 is to include all services which can be reasonably said to come within its provisions.
    2. Louisiana Digest — Master and Servant —Par. 156.
    One who is employed to deliver grayel, is directed to haul over certain routes and deliver gravel at certain points, is an employee and not an independent contractor even though the compensation received by him included payment for the use of the truck.
    3. Louisiana Digest — Master and Servant —Par. 154, 159.
    Where one is paid wages for work and compensation for the use of his truck his compensation under the Workmen’s Compensation Act 20 of 1914, will be guaged by the amount received by him as wages disregarding the amount paid for the use of the truck.
    4. Louisiana Digest — Master and Servant —Par. 159.
    An injured employee whose face and head are seriously and permanently disfigured can recover' compensation under Section 8 Subsection 1 (c) of the Workmen’s Compensation Act No. 20 of 1914 for sixty-five per cent of his wages for a period of one hundred weeks.

      (The recent amendment of Section 8 of Act 20 of 1914 is amended by Act 85 of 1926. Editor’s note.)
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of DeSoto. Hon. Hal A. Burgess, Judge.
    Action by Dolphus A. Alexander against Belton Latimer. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Huey P. Long, G. T. McSween, of Shreveport, attorneys for plaintiff, appellee.
    Lee and Bell, of Mansfield, attorneys for defendant, appellant.
   WEBB, J.

This is an action under the Employers’ Liability Law, in which the plaintiff seeks to recover judgment for partial disability to do any work of a reasonable character under clause (c) and for permanent disfigurement under clause (c), of subsection 1 of section 8 of the statute.

The defendant answered, denying liability, and especially pleading that plaintiff was an independent contractor.

On trial judgment was rendered in favor of the plaintiff under clause (e) of subsection 1 o.f section 8, for compensation at the rate of eleven and 70-100 dollars per week for a period of one hundred weeks.

The defendant appealed, and plaintiff has answered the appeal, asking that the judgment be amended and that compensation be allowed under clause (c) of subsection 1 of section 8.

ORINION.

The record shows that defendant had a contract with the parish of DeSoto to gravel one of the highways in that parish; that the gravel was to be furnished by the parish and was to be loaded, hauled and delivered on the roadway by the defendant at a certain rate per cubic yard.

That defendant entered into agreements with various persons who were the owners of trucks or had trucks under their control, to load and haul the gravel from a designated garvel pit to points of delivery upon the highway, where a representative of the parish was stationed who would deliver to the hauler tickets showing the number of yards and distance hauled, which would be presented by the person doing the hauling to defendant and receive the price which had been agreed upon of twenty-five cents per cubic yard for the first quarter mile haul and five cents for each additional quarter of a mile haul.

That among the. persons contracted with by the defendant was the plaintiff, who was to furnish his own truck and necessary help to load the truck and pay for all expenses necessary in loading and operating the truck.

The plaintiff had been engaged in the work of hauling gravel for two days and had made on the day before the accident sixteen dollars, gross, but on the next succeeding day plaintiff, while hauling gravel in his truck, in some manner lost control of the truck and the truck leaving the road was overturned and plaintiff received severe and permanent injuries about the face and head which caused an impairment of the vision of the left eye and which disabled him for some time, after which, he again took up the work, having in his service two trucks, one of which was driven by him, but due to the impairment of his vision he claims he was unable to operate the truck at such speed as would enable him to make the gross sum which he had formerly made.

The plaintiff in hauling the gravel from the designated point of loading to the. point of destination or place where it was to be unloaded, was directed to take the shortest route and the only direct control which the defendant had over plaintiff appears to have been in the route over which he should haul and to require him to follow the instructions of the parish representative as to the point at which the gravel would be unloaded, but it does not appear that plaintiff had contracted to haul any certain number of cubic yards of gravel.

The defendant contends that the plaintiff was an independent contractor. However, we are unable to draw any clear distinction between the facts developed and those shown in Burt vs. Davis-Wood Lumber Co., 157 La. 111, 102 South. 87, and Dick vs. Gravel Logging Co., 152 La. 998, 95 South. 99, in which the plaintiff was held not to be an independent contractor.

In Burt vs. Davis-Wood Lumber Co., 152 La. 998, 95 South. 99, the servant who furnished his own team and hauled lumber at a fixed rate per thousand feet was given specific instructions as to the place of delivery, and the same is true in the present instance in that the general instructions given to plaintiff directed him to take each load of gravel over the shortest route and unload at the place designated by the representative of the parish, with whom the defendant had contracted.

It cannot be said that plaintiff was employed to do a certain specified piece of work, nor considering that defendant had contracted with the parish to complete the work within a fixed time and that he had undertaken to have the work accomplished through the means of many such persons as the plaintiff, that plaintiff was at liberty to come and go at his pleasure or work when he deemed it convenient.

Defendant under his contract with the parish necessarily retained control of the plaintiff as to the delivery of the gravel and as to following the instructions of the representative of the parish as to unloading the gravel, and we do not think it would have been possible for him to have had greater control had the plaintiff been employed by the day.

The rule is to construe the statute so as to include all services which can be reasonably said to come within its provisions (Dick vs. Gravel Lumber Co., 152 La. 994, 95 South. 99), and considering that defendant did have the right to control the plaintiff, at least as to the route over which he should haul and the place where he should deliver the gravel, we are of the opinion that plaintiff cannot be said to have been an independent contractor, although it appears that the compensation being received by him included payment for the use of the truck (Burt vs. Davis-Wood Lumber Co., 157 La. 111, 102 South. 87).

As to the amount of compensation, we do not think it possible to accept as a criterion the amount which the plaintiff had earned with the use of his truck, but the evidence shows that the earnings or wages of a driver of a truck was from two 50-100 dollars to three dollars per day, and the trial court accepted the latter as the basis of its judgment.

The evidence, does' not show that plaintiff has been disabled from driving a truck; on the contrary, it shows that he is able to drive a truck, and we do not think that compensation can be allowed under the provisions of clause (c) subsection 1 of section 8 of the statute.

It is conceded, however, that the plaintiff received injuries about the head and face which seriously and permanently disfigured him, and the judgment of the District Court, which fixed the amount of weekly compensation at sixty-five per cent of eighteen dollars for one hundred' weeks is correct and is affirmed.

ODOM, J., dissents.


author: CLAIBORNE, J.

text:
    No. 10,023
    Orleans
    PAUL v. TABONY
    (July 19, 1926. Opinion and Decree.)
    (Aug. 16, 1926. Rehearing Refused.)
    (Oct. 5, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus ,by the Court.)

    1. Louisiana Digest — Judgment—Par. 13.
    A judgment rendered December i, 1921, ordering defendant to pay plaintiff $10.00 per month from' 'September 27, 1920, until possession of certain property be delivered, to plaintiff, is sufficiently certain to be executory, to the extent of compelling defendant to pay $10.00 per month from' September 27, 1920, to the date of the judgment; but any further sum must be fixed by judgment.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Frank Paul against Arthur Tabony.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    D. V. Doussan, of New Orleans, attorney for plaintiff, appellee.
    Paul W. Maloney and W. O. Hart, of New Orleans, attorneys for defendant, appellant.
   OPINION.

CLAIBORNE, J.

The facts in this case are stated in detail in our opinion delivered upon application for mandamus February 2, 1925, under the number 9932 of. the docket.

The case is now before us on appeal from a judgment dissolving an injunction sued out by defendant against the execution of a judgment rendered December 1, 1921, ordering defendant to deliver possession of certain real estate and condemning defendant to pay to plaintiff the sum of $10.00 per month from September ■ 27, 1920, to such time as he will have delivered to plaintiff 'the possession of said property.

The contention of defendant’s counsel is that the judgment, the execution of Which was enjoined, is uncertain and cannot be executed until the court by proper proceedings has determined the exact amount due thereunder. Insofar as the judgment awards possession of the property to plaintiff it is not resisted. There is a difference of opinion between counsel as to when possession was delivered to plaintiff by defendant, and it is insisted that this issue should be judicially determined before execution can issue on the judgment. But there is no dispute, and there can be ho question but that at the time the judgment was rendered, there was due under said judgment the sum of $10.00 per month from September 27, 1920, to December 1, Í921, the day on which the judgment was rendered and the judgment was certainly executory to that extent, say for 14 months or $140.

But the attorney for the plaintiff, Frank Paul, stated in argument that he claimed under the writ, rent from September 27, 1920, to the date of the issuance of the writ, October 8, 1924, or for 48 months at $10.00 per month, say $480.00. The' defendant alleged in his petition for an injunction that he had “repeatedly offered the possession to the plaintiff who declined it”.

We are of the opinion that the defendant owes $140 rent as a thing adjudged. But we are also of the opinion in the face of his sworn denial that he, defendant, is entitled to a hearing on the question of his occupancy of the property after the date of the judgment, December 1, 1921. The plaintiff objected to his being heard on that question and the court maintained him and dissolved the injunction on the face of the papers without hearing evidence. We think there was error in this ruling.

But prior to the issuance of his injunction the plaintiff should have tendered $140 and the costs up to .the date of the judgment; the injunction could issue only for an amount in excess of that sum. 1 H. D. 665, No. 2; Iberia Cypress Co. vs. Christen, 112 La. 451, 36 South. 491.

Under the circumstances, considering that the amount enjoined was only $480, and that the injunction was dissolved upon the face of the papers and that the defendant was partly successful, we think a sum of ,,$50 for attorney’s fees is sufficient.

It is. therefore ordered that the judgment herein rendered on October ■ 17, 1924, be amended so as to maintain the injunction against the writ of fieri facias insofar as any amount in excess of one hundred and forty dollars and costs up to December 1, 1921, is concerned, and that this case be remanded for trial of the question whether the defendant owes any further sum and to fix the amount thereof.

It is further ordered that the attorney’s fees be reduced from one hundred dollars to fifty dollars, and as thus amended that the judgment be affirmed; the costs of appeal to be paid by plaintiff and appellee and the costs of the District Court by defendant and appellant.


author: BELL, J.

text:
    No. 9201
    Orleans
    SCOTT v. BRENNAN
    (February 15, 1926. Opinion and Decree.)
    (March 1, 1926. Rehearing Refused.)
    (October 5, 1926. Amended by Decree of Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Fixtures—Par. 2.
    A water heater actually attached to a building and connected with the water pipes thereof is “an immovable by it's nature” within the meaning and. purview of Article 467 of the Civil Code, as amended by Act 51 of 1912.

      2. Louisiana Digest — Fixtures—Par. 11.
    A purchaser of a building may recover such a fixture or its replacement value when it is unlawfully removed by the former owner as vendor óf the building.
    Appeal from the Civil District Court for the Parish of Orleans, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Miss Natalie Y. Scott, et al., against Joseph A. Brennan and his wife.
    There was judgment for plaintiffs and defendants appealed.
    Judgment affirmed.
    Amended by decree of Supreme Court on writ of ceritorari and review.
    R. B. Montgomery, W. H. McClendon, Jr., of New Orleans, attorneys for plaintiffs and appellees.
    H. W. Robinson, of New Orleans, attorney for defendants and appellants.
   OPINION

BELL, J.

Plaintiffs sue defendants in damages for removal of a water heater which plaintiffs allege was attached to and formed part of a certain building sold to them by defendants. The court a qua awarded plaintiffs the replacement value of the heater in the amount as claimed, but denied other damages. Defendants have appealed. Plaintiffs have not answered the appeal.

There is some conflict of testimony as to whether there was any agreement or representation concerning the heater or its retention by the vendor when selling the building. No such stipulation appears to have been made in the act of sale by which the building and appurtenances were conveyed to plaintiffs.

Defendants, answering the petition, admit that they sold plaintiffs the property and improvements described; they deny that the heater was included in the act of sale, and aver that the heater belonged to one of the defendants herein who removed it when vacating the property. This defendant, as the sole witness for defendants, states that he removed the heater because he considered it to be his property; that its value, eleven years ago, was about $12.00, and that he believes, he purchased it at auction for $5.00. The evidence is clear that the heater was attached by the defendants as owners of the building to the water pipes and heating pipes of the building, and that these connections ran to four bathrooms on the several floors of the property. Considering the emergency which required that plaintiffs should immediately replace the heater with another of equal capacity in order to accommodate several tenants in the building, and further considering that the heater bought by plaintiffs for this purpose was only a second-hand fixture, a fact indicating plaintiffs’ desire to. minimize the damage resulting from the removal of the old heater, we are unable to agree with the contention of appellants that the amount allowed by the trial judge was excessive.

The important issue presented on appeal is one of law, as to whether, under the provisions of Act 51 of 1912, the fixture here involved passed to the plaintiffs as an immovable forming part of the property or building conveyed to them by defendants. The Act reads as follows:

“Section 1. Be it enacted by the General Assembly of the State of Louisiana, that Article 467 (458) of the Revised Civil Code of Louisiana be amended and reenacted so as to read as follows:

“Art. 467 (458). Wire screens, water pipes, gas pipes, sewerage pipes, heating pipes, radiators, electric wires, electric and gas lighting fixtures, bath tubs, lavatories, closets, sinks, gas plants and furnaces, when actually connected with or attached to the building by the owner for the use or convenience of the building are immovable by their nature. •

"Section 2. Be it further enacted, etc., that no court shall have jurisdiction or power to declare that any such articles above referred to are movables and treat them as such.”

It is contended by counsel for appellants that the foregoing provision of the Act which nominated the several objects or things which are considered to be immovable is in no sense illustrative, but, on the contrary, is in every way restrictive, and that if the lawmaker, after naming the various things referred to in the Act as immovables, had added the words “et cetera” or the words, "or other similar things connected to the building,” it might be argued that water heaters were included, but no such expressions having been used, the court cannot supply them. We do not give to the Act such a restricted judicial interpretation, for it is plain that the fixture involved in this case is such as was contemplated by the Legislature. It should be noted that in the second section qf the Act the provision is made, “that no court shall have jurisdiction or power to declare that any such articles above referred to are movables.” (Boldface type ours.)

The learned judge of the trial court did not err in applying the provision of the aforesaid Act to the instant case.

It is therefore ordered that the judgment appealed from be affirmed, at defendants’ cost, in both courts.


text:
    No. 10,236
    Orleans
    GREEN, Appellant, v. ALUMINUM LINE AND NEW AMSTERDAM CASUALTY CO.
    (June 21, 1926. Opinion and Decree.)
    (July 19, 1926. Rehearing Refused.)
    (Cause transferred to Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Courts—Par. 126, 128.
    This court has no jurisdiction of a claim exceeding $2000.00 for compensation for physical injuries suffered by an employee, not based upon Article C. C. 2315 or upon the Employer’s Liability Acts, but upon an agreement made after the injury that the rights and liabilities of the employer and employee shall be measured by Act 20 of 1914 and amendments thereto.
    Appeal from Civil District Court. Hon. Hugh C. Cage, Judge.
    Action by Stewart Green against Aluminum Line and New Amsterdam Casualty Co.
    There was judgment for defendants and plaintiff appealed.
    Cause transferred to Supreme Court.
    Gordon Boswell, Milo B. Williams, of New Orleans, attorneys for plaintiff, appellant.
    Frank T. Doyle, of New Orleans, attorney for defendants, appellees.
   CLAIBORNE, J.

This is a suit for compensation.

The plaintiff alleged that the defendants, the Aluminum Line, were engaged in the stevedoring business at Baton Rouge and the New Amsterdam Casualty Company does a general casualty and liability insurance business; that on. October 20, 1923, plaintiff was in the employ of the Aluminum Line in the capacity of a laborer in the stevedoring business at $4.00 a day; that while so engaged in loading a cargo from a barge to a ship, plaintiff was struck by a sling load which was being swung from the barge to the ship by a winch,, block and fall, was knocked to the deck of the barge, crushed and bruised, and had both bones of his left forearm fractured; that the New Amsterdam Casualty Company had insured the Aluminum Line against liability for such accidents and had agreed to pay according to Act 20 of 1914 and that the contract of hiring of plaintiff was made with reference to the provisions of said act'; that when plaintiff made demand of the Aluminum Company for compensation for the injuries suffered by him he was informed by it that his rights, according to the above agreement between the defendants, were measured by Act 20 of 1914 and the amendments thereto; that plaintiff acquiesced in said agreement; that the Casualty Company computed plaintiff’s damages at sixty per cent "of his wages of $24.00 a week, or $14.40 a week, as provided by said Act, and paid him at that rate for thirty weeks, or $432.00; that notwithstanding plaintiff’s disability to do work of any reasonable character will continue for an unknown duration, the said defendants declined to pay plaintiff additional compensation “to which he is entitled by virtue of the said stipulation, agreement or contract between the parties defendant, the terms of which were áccepted by petitioner, as aforesaid, as the sole measure of defendants’ legal liability to him".

Plaintiff therefore prayed for “judgment in favor of petitioner and against the defendants in solido for $14.40 per week, payable weekly, from May 23, 1924, with legal interest on each component part from the date due until paid for a period not exceeding 400 weeks, subject to a credit for thirty weeks heretofore paid”, and for $200.00 medical attention.

This claim in fact and according to plaintiff’s petition amounts to $5,528.00.

This claim is not based upon the Employers’ Liability Acts of this state or of the United States. If it was, this court would have jurisdiction as far as the amount is concerned. But it clearly appears by the petition, and it is admitted by plaintiff’s counsel in argument that the claim is based exclusively upon the agreement and contract between the plaintiff and the two defendants that the amount of his compensation and of their liability shall be measured by the Employers’ Liability Acts of this state. Inasmuch as this court is vested with jurisdiction in demands exceeding $2000.00 only in compensation cases under .the laws of this state it follows that this court has no jurisdiction of demands for compensation exceeding $2000.00 based upon contracts, even if the rights- and liabilities under such contracts shall be measured by the state compensation laws. No. 9060 Orl. App.

This want of jurisdiction was not raised by counsel in the case, but. was noticed by one of the judges of this court.

This court is without jurisdiction of this case.

It is therefore ordered in pursuance of Act 56 of 1904, p. 135, as amended by Act 19 of 1912, p. 25, that this cause be transferred to the Supreme Court of this state, provided the appellant shall file in the Supreme Court within sixty days from this date a transcript of this cause prepared in accordance with the rules prescribed by the Supreme Court for transcripts of appeal from the district courts to said court, together with a copy of this order; otherwise that the appeal herein be dismissed.

The costs of this appeal to this court to be paid by the appellant.


author: ODOM, J.

text:
    No. 2692
    Second Circuit
    FLOWERS v. WILLIAMS-RIEVES LUMBER COMPANY
    (June 30, 1926, Opinion and Decree.)
    (Oct. 4, 1926, Rehearing Refused.)
    (Nov. 3, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 154.
    In view of Article 14 of the Civil Code dizzy sickening effects of tobacco is not “intoxication” as meant by Section 28 of Subsection 1 of Act No. 20 of 1914 as amended by Act 38 of 1918.
    2. Louisiana Digest — Master and Servant —Par 158.
    An injured employee, who after taking a chew of tobacco becomes dizzy, fainted and fell off of the truck causing an injury to his head, was injured in the course of and arising out of his employment, and can recover under the Workmen’s Compensation Act No. 20 of 1914.
    3. Louisiana Digest — Master and Servant —Par. 154.
    Section 8 Subsection 1 (e) of the Workmen’s Compensation Act Ño. 20 of 1914 does not apply to injuries producing disability to work.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Robert M. Flowers, Tutor, against Williams-Rieves Lumber Company. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Vernis Morgan, of Shreveport, attorney for plaintiff, appellee.
    Wilkinson, Lewis and Wilkinson, attorneys for defendant, appellant.
   ODOM, J.

This is a suit under the Workmen’s Compensation Act (Act 20 of 1914 and amendments).

Homer Flowers was employed by defendant to work about a sawmill. On the day he was injured he was told by the proprietor of the mill to assist a truck driver in transporting lumber. After delivering a load of lumber he and the driver got on the truck to return to the mill and while on their way the driver gave him a chew of tobacco which made him sick or rendered him unconscious so that he fell from the truck to the paved road and sustained the injury of which he complains. He testified that he had no recollection of becoming sick from the effects of the tobacco but in a signed statement made by him to a representative of the insurance company he said the driver of the truck—

“* * * gave me a chew of tobacco and as I was not accustomed to chewing tobacco, it made me very dizzy and finally I fainted and fell off of the truck and hit my head on the asphalt pavement”.

Plomer Flowers, as a witness in his own behalf on the trial of the case, in a measure repudiated this statement, but said that after chewing the tobacco he became unconscious and did not know what happened and that when he regained consciousness he was in a sanitarium.

Whether he was accustomed to the use of tobacco or not is not clear; but we think that makes no difference. The testimony makes it clear, we think, that it was , the effects of the tobacco which caused' him to fall from the truck. He suggests that he may have fallen on account of a jolt or jar, but there is no testimony to support that theory.

The defense is, to quote from defendant’s brief:

“First, that the accident did not arise out of or in the course of the employment; 'second, that the employee was intoxicated at the time of the injury.”

• In oral argument before the court and in 'brief counsel contend that the injury was •caused by Homer Flowers’ intoxication.

We shall consider those defenses in reverse order, because there will be no necessity for discussing the first point if the injury was caused by the employee’s intoxication.

Subsection 1 of section 28 of Act 20 of 1914, as amended by Act 38 of 1918, provides:

“* * * no compensation shall be allowed for an injury caused * * * by the injured employee’s intoxication at the time of the injury.* * *”

' Counsel for defendant contend, and in that view we concur, that it was the effects of the tobacco which caused Homer Flowers to fall from the truck.

They further contend that tobacco is an intoxicant and that he was intoxicated at the time he" fell, as contemplated under the statute.-

In that view we do not concur.

In construing this statute courts should not be too technical and should interpret the meaning of words and terms found therein as they are ordinarily understood.

It may be technically true, as contended by defendant’s counsel, that a person is “intoxicated” when under the influence of a drug, but it would be going too far to say that the dizzy, sickening effects of tobacco is “intoxication” as is meant under the statute.

It is a well known fact that the use of tobacco sometimes causes dizziness to such an extent that thé user falls and that it sometimes causes one to' become sick and lose consciousness. But that is not “intoxication” as we ordinarily understand and accept that term.

“Intoxication”, according to 23 Cyc. 344, is a—

“* * * synonym of ‘inebriety’ or ‘drunkenness’ implied or evidenced by undue or abnormal excitation of the passions or feelings or the impairment of the capacity to think and act correctly and effectively.”

The effect of tobacco is not to produce excitation of the passions or feelings or impairment of the capacity to think, but rather to cause sickness and dizziness, and, in extreme cases, unconsciousness.

We find that courts of other states have had occasion to construe the meaning of the word “intoxicated” or “intoxication” as they appear in their statutes.

In the state of Georgia there is a statute providing that either spouse may he granted a divorce in case the other is guilty of habitual intoxication, and in the case of Ring vs. Ring, 112 Ga. 854, (s8 S. E. 330) the court held that “intoxication” under that statute means drunkenness produced by the use of intoxicating liquor, and not the condition resulting from the excessive use of opiates.

Vermont has a penal statute which provides that persons found intoxicated may be punished, and in the case of State vs. Kelley, 47 Vt. 294, the Supreme Court of that state held that the word “intoxicated” is used in its common and ordinary signification and means intoxicated on spirituous liquor; and, in commenting, the court said: that it is sometimes .contended that a person is intoxicated or drunk with opium, ether or laughing gas, but that it is always felt and understood that such is an unusual and forced use of the word “intoxicated”.

In the case of Commonwealth vs. Whitney, 65 Mass. 447, the court held that the word “intoxication” is merely synonymous with inebriety and is expressive of that state or condition which follows from the taking into the body by swallowing or drinking intoxicating liquors.

In the case of Youngs vs. Young, decided by the Supreme Court of Illinois and reported in 22 N. E. 806 (130 Ill. 230) the plaintiff brought suit for divorce under a statute of that state which makes it a cause for divorce that the husband or wife—

“* * * has been guilty of habitual drunkenness for the space of two years”

and the court said.

“* * * the evidence fails to show that defendant has ever been in the habit of drinking intoxicating liquors, at least to excess; but it is claimed, and the evidence of the complainant tends to show, that for several years prior to the time complainant left him defendant had been in the habit of using morphine by hypodermic injection into the arm and leg. It appears that the effects of morphine thus administered are very similar to and in many respects apparently identical with those produced by the use of intoxicating liquors. This branch of the case, therefore, must rest upon the proof of defendant’s indulgence in the morphine habit and must necessarily fall unless it can be held that the intoxication and stupor produced by the use of morphine is ‘drunkenness’ within the meaning of the first section of the statute in relation to divorce. It cannot be doubted, we think, that the word ‘drunkenness’ is used in said statute in its ordinary and popular sense. The primary signification of the word as given in Webster is the state of being drunk or overpowered by alcoholic liquor; intoxication; inebriety.”

In Bouvier’s Law Dictionary it is defined as—

“The condition of a man whose mind is affected by the immoderate use of intoxicating drinks.”

A similar definition is given by Rapalje and Lawrence in their law dictionary, to-wit:

“Disorder of the mind occasioned by the recent use of intoxicating liquor.”

The Supreme Judicial Court of Massachusetts in defining the meaning of the word as used in a statute of that state said:

“There 'can be no doubt that drunkenness as it is commonly understood in the community is the result of the excessive drinking of intoxicating liquors. Such is also the signification given to it by lexicographers.”

A note to the above case found in 6 L. R. A. 548 reads:

“To constitute grounds for divorce for habitual drunkenness, the drunkenness. must be the effect of the use of alcoholic liquors and not of opiates, chloroform or other drugs.”

Citing 1 Bishop Mar. & Div. 627; Barber vs. Barber, 14 Law. Rep. 375.

We find that in many of the states, notably North Dakota, Oklahoma and Colorado, where there are statutes providing for the treatment and cure of drunkards or inebriates, that the term “drunkard” has been held to include persons who have acquired the habit of using liquors, drugs or narcotics to such an extent as to deprive them of self control; but aside from statutes of this nature we find that courts have uniformly held that “intoxication” as used in the statute means a condition produced by the use of intoxicating liquor and not by drugs or narcotics.

We are referred to the definition of “intoxicated” as given in Webster’s New International Dictionary as follows:

“Under the influence of intoxicating liquors or drugs.”

And counsel argue that tobacco is a drug and therefore one who is under the influence of tobacco is in a state of “intoxication” as used in the workmen’s compensation statute now under consideration.

We find the definition above referred to includes also the condition of being—

“* * * emotionally wrought up as by sorrow or joy”.

Counsel would not argue, we think, that the word “intoxication” as used in the statute should be so technically construed as to mean one who is emotionally wrought up as by sorrow or joy.

By this same authority we find that the word “intoxication” means a state of being intoxicated or drunk; drunkenness; the act of intoxicating or making drunk.

Referring to the word “drunk” in the same dictionary, we find it defined as follows:

“Intoxicated with or as with strong drink; under the influence of an intoxicant, especially an alcoholic liquor so that the use of the faculties is materially impaired.”

The same authority defines “drunkard” as—

“One who habitually drinks strong liquors immoderately; one whose habit is to get drunk; a toper; a sot.”

The word “drunken” is defined as—

“Overcome by strong drink; intoxicated by spirituous liquor.”

It will therefore appear that the authority cited by counsel is against them.

Civil Code, Article 14, reads:

“The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.”

The word “intoxication” as it is ordinarily used and understood, means a condition produced by the excessive use of alcoholic liquors.

O'ur holding, therefore, is, that the injured employee was not intoxicated at the time of the accident.

■ On the first point, we note that counsel, in brief, say that Homer Flowers’ injury occurred in the course of his employment “but did not arise out of and incidental to his employment”.

This contention, as we understand it, is based upon the proposition that the use of the tobacco caused him to fall from the truck.

The use of the tobacco did not arise out of the employment, nor is it incidental thereto. But the use of the tobacco did not produce the injury. It was the fall from the truck which caused the injury. Defendant was not responsible for Homer Flowers’ use of the tobacco but defendant did place him on the truck from which he fell and it was the fall which caused the injury. He would no doubt have becoriie sick and unconscious from the effects of the tobacco if he had been on the ground walking, but it is not likely that he would have been hurt. By assigning him work • which made it necessary for him to ride the truck defendant placed him in a place of danger and exposed him to an extra or added hazard. It was the employment which exposed him to this hazard.

In the case of Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 South. 677, the court said:

“We think that where a workman is exposed to some risk manifestly necessitated by his employment he is entitled to his compensation, unless it also be manifest that he would at the time of the occurrence have been equally exposed to the same risk outside of his employment. And we cannot assume that a man is exposed to the same danger of attack at his own home, or in some frequented place, or in the day time, as he would be. when called by his employment to some lonesome spot and in the night time.”

In that case the employer kept its engines in the night time in a siding in the ■ woods, and while engaged during the night in looking after those engines the employee was assassinated, and the representatives of the employee were allowed recovery upon the theory that the employment, requiring work in the woods at night, exposed the employee to a hazard or risk to which he would not have been otherwise exposed.

In the case of Ferguson vs. Cady-McFarland Gravel Co., 156 La. 871, 101 South. 248, the employee, while at work repairing a railroad track, was struck on the head with an iron bar in the hands of a fellow employee and killed, and the court held that the accident “arose out of and in the course of the' employment”; citing the' Dyer case, supra, where the court quoted, approvingly, the following rule deduced in the case of Myers vs. La. Ry. & Nav. Co., 140 La. 937, 74 South. 256, to-wit:

“The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the • injury resulted was greater for the workman than for a person not engaged in tho employment.”

The agency which caused the death in the Dyer case and in the Cady-McFarland case, supra, was the assassin, but recovery was allowed because, as was said in the latter case, the employee “therefore incurs greater risk necessitated by his employment than a, person ordinarily would be subjected to outside of such employment”.

So, in the case at bar, the use of the tobacco was the agency which caused the employee to become unconscious and fall and it was the fall from the truck which caused the injury, and we cannot assume that he would have been injured if he had not been on the truck.

The same principle is applied in the so-called “street” cases and in cases where the injury or death is due to the elements.

In an exhaustive ease note found in 13 A. L. R. 974, the annotator after stating that as a general rule injuries caused by the elements do not arise out of the employment, says further:

“The rule is generally recognized, however, that if an employee, by reason of his duties, is exposed to a special or peculiar danger from the elements, that is, one greater than other persons in the community are, and an unexpected injury is sustained by reason of the elements, the injury constitutes an accident arising out of and in the course of the employment within the meaning of the workmen’s ■ compensation acts.”

And many cases are cited in support of the text. See also: 8 A. L. R. 935;

23 A. L. R. 348;

23 A. L. R. 403.

Counsel for defendant have industriously collated a vast array of authorities which they cite in support of their argument. Some of them are in direct conflict with the view which we take, notably, the case of Van Gerder vs. Packard Motor Car Co., 195 Mich. 588, reported in L. T. A. 1917E 522 and 162 N. W. 177.

In that case it was held that an employee who while at work on a scaffold fell to the ground on account of an epileptic fit could not recover because the fall was caused by the fit.

' On the other hand, we find other cases where recovery was allowed by other courts on facts almost identical.

See note in 37 A. L. R. 771.

Some of the cases cited by counsel for defendant are not in point. For instance, in the British case recovery was denied where a messenger while carrying a message fainted and fell in the street, causing his death. That injury was not due to a street hazard, and therefore the case has no application.

In another case, the decedent fell to the ground in a swoon while at work. It is not suggested that he would not have fallen and been killed if he had not been at work or that the nature of the work or the place furnished him to work contributed in any manner to the accident.

Some of the cases cited support our theory, as for instance, the case where an engineer was tightening a nut and fainted and fell. The court held that the accident was due to the work and allowed recovery.

See also: Carroll vs. What Cheer Stables Co., 38 R. I. 421; L. R. A. 1916D, 154.

In the case of Cinmino vs. Rubber Co., reported in 37 A. L. R. 769, another case cited by counsel for defendant, the deceased while standing on a concrete floor near a bench waiting for stock to carry to an employee, made an outcry and fell to the floor, fracturing his skull, from which injury he died. The court held that the injury which resulted from the impact of his head with the floor was not a risk or hazard of the employment.

That case does not support counsel’s theory.

In the case at bar, there is no reason to assume that plaintiff would have been injured if he had been not on the truck. The injury, therefore, is traceable directly to the employment, and under the holdings in the cases of Dyer vs. Rapides Lumber Co., and Ferguson vs. Cady-McFarland Gravel Co., 156 La. 871, 101 South. 248, supra, and Sears vs. Petral, 151 La. 971, 92 South. 561, plaintiff is entitled to recover.

Plaintiff moved in this court to amend the judgment so as to allow an additional amount under clause (e) of subsection 1 of section 8 of the act.

It is settled jurisprudence that clause (e) of subsection 1 of section 8 of the statute does not apply to injuries producing disability to work.

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


text:
    No. 10,505
    Orleans
    RICHARDSON v. CALOVELLO, Appellant
    (June 21, 1926. Opinion and Decree.)
    (July 5, 1926. Rehearing Denied.)
    (October 5, 1926. Writs ' of Certiorari ' and Review denied by Supreme C urt.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 177.
    A prospective purchaser, under an agreement of sale, who takes possession of the property to be sold owes rent during the time of his occupancy if the sale does not take place.
    Appeal from the First City Court, Division “A”. Hon. W. Alex Bahns, Judge.
    Action by F. Rivers Richardson against Widow R. Calovello.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Wm. H. Talbot, of New Orleans, attorney for plaintiff, appellee.
    Theo. Cotonio, of New Orleans, attorney for defendant, appellant.
   OPINION

CLAIBORNE, J.

This is a suit for rent. Plaintiff averred that on July 2, 1924, he agreed to sell to the defendant the property, No. 1135 Royal street, for the price of $5400.00, and dn order to bind the sale the defendant deposited in - his hands $800.00 on account of the purchase price; that the defendant refused to execute the agreement of sale, and on May 22, 1925, was formally put in default; that with plaintiff’s permission the defendant on January 11, 1925, moved into the property and has since occupied the same; that plaintiff is entitled to recover the rent of the property for its use and occupancy, and that the same'is worth $50.00 per month; that the defendant has paid $50.00 on account .of the rent; plaintiff claims rent from January 11, 1925, when defendant took possession, until July 11, 1925, or the period of six months, or $300.00, subject to a credit of $50.00.

The defendant filed an exception to thb jurisdiction of the court and on July 21 and on July 28 exceptions of no cause of action, no . right of action and non joinder of parties.

On October 7, 1925, the exception filed July 21 and 29 (28) were maintained and the plaintiff’s suit was dismissed. He appealed.

On appeal, this court under No. 10,293 maintained the jurisdiction of the city court and decided, that the petition disclosed a cause of action, and remanded the case for trial upon the merits ■ and answer.

On the trial of the merits there was judgment for plaintiff and defendant appealed.

The defendant’s answer includes “fourteen” reasons marshalled in “fourteen” paragraphs why plaintiff should not recover.

We shall dismiss the following:

1st and 2nd. That ' the document annexed to the petition purporting to be the agreement of sale has been altered and the alteration renders the sale null and void.

3rd. That the plaintiff is not the owner of the property; that his title is illegal.

4th. That the property' is in a dilapidated condition.

5th. That her signature to the agreement of sale was obtained through false representations.

6th. That it was represented to her that the owner of the property would make repairs to it.

We cannot consider those portions of the answer attacking the agreement of sale as this suit is not to enforce the agreement of sale but only to collect rent, resulting from the occupancy of the property.

Nor can the defendant dispute plaintiff’s title to the property, for the same reason, and for the additional reason that in a suit for rent the title to the property is not an issue.

Nor can an occupant of property refuse .to pay rent for the reason that the property is in need of repairs.

The only defense that can be examined is the following:

5th. “Defendant denies that she is occupying the property and avers the truth to be that Mr. Edmiston induced her daughter who is of age and married to occupy the property, by the false representation that the sale to defendant of said property was about to be completed.”

6th. “Defendant denies that the amount sought to be recovered from her as rent is a fair value for the occupancy of the property and specially denies that the occupancy of said property is worth $50.00 per month and defendant denies that she is occupying said property.”

9th. Defendant further avers that the said Edmiston and the Liberty Realty and Securities Co. secured from defendant the further sum of $50.00, representing the same was necessary to cover the expenses of securing the homestead loan.

10th. That said Edmiston never used the sum of $50.00 for the purpose stated by him to defendant, and, therefore, same was secured by false pretenses.

5th. The testimony of S. Y. Edmiston, real estate agent, establishes with certainty that he effected the sale of the property to the defendant, and had dealings concerning the sale with the defendant only and not with her daughter; although her daughter was constantly with her; that the defendant asked permission to occupy the premises which was granted and that her daughter moved into the premises and has occupied them ever since. Woodcock vs. Baldwin, 110 La. 270, 34 So. 440; Babst vs. Hiartz, 1 La. App. 498.

6th. Edmiston’s testimony also is that the rental value of the property is $50.00 per month. The price of the property justifies the rent. It was rented at that price prior to the occupancy of defendant. There is no evidence to the contrary.

10th. When asked if it was not a fact that the $50.00 was paid by defendant to secure the expenses to procure a loan for the homestead, Edmiston answers: “That is absolutely untrue, I absolutely deny that; there was nothing said about that.”

The evidence satisfies us, as it did the trial judge, that the defendant’s daughter took possession of the property and occupied it for account of her mother, the defendant.

Defendant’s daughter took possession of the property in January, 1924, and has occupied it since. Plaintiff has received no rent during that time except $50.00. The trial judge was of the opinion that the defendant owed the rent and so are we.


text:
    No. 10,354
    Orleans
    SCHUH, Appellant v. N. O. PUBLIC SERVICE INC.
    (March 29, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Street and Interurban Railroads — Par. 19.
    A street car company is liable in damages only for negligencé.
    2. Louisiana Digest — Street and Interurban Railroads — Par. 19.
    It is not liable in damages resulting exclusively from an overcrowded car, without any negligence on its part, when it has been the immemorial custom, tolerated if not demanded, by the public to admit upon the cars more passengers than there are seats, and when no injury has resulted from the practice.
    3. Louisiana Digest — Negligence—Par. 1, 14.
    A defendant cannot be charged with negligence for continuing an act from which no injury has resulted and from which none could be anticipated.
    Appeal from First City Court. Hon. Val. J. Stentz, Judge.
    Action by Linnie L. Schuh against the New Orleans Public Service Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Edw. Rightor, of New Orleans, attorney for plaintiff, appellant.
    Ben W. Kernan, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

Plaintiff filed suit on January 25, 1926, claiming damages against the defendant.

She alleges that on May 25, 1925, eight months before, at about 8:45 a. m., she boarded a street car at Broad and St. Ann Streets going uptown; that said car was very' crowded when it reached the corner of Canal and Baronne Streets; that it stopped there; when she proceeded to alight the platform was so jammed with passengers standing up that it was impossible for her to have the necessary assistance of the hand-rail on each side of the platform to alight;. that the step was steep, and due to her failure to have the assistance of the hand-rail she fell from the car to the pavement, bruising herself and receiving a nervous shock and injury to the base of her spine.

She claims $300 damages.

Defendant denied all the allegations of the petition and averred that the plaintiff fell in alighting, not in any manner, due to the negligence of defendant, but due to plaintiff’s own fault in failing to exercise due care.

There was judgment for _ defendant and plaintiff has appealed.

The plaintiff testified that she- got out by the front gate of the car.

She further testified:

•‘Q. Where do you live?

"A. 2735 St. Ann Street.

•‘Q. Where is your business located?

“A. 209 Strand Building.

“Q. Do you ordinarily go to work in a street car?

“A. Always.

“Q. What car?

“A. Bayou St. John or any car that runs by the Maison Blanche.

On the morning of the accident she took the car at 8:45 or 9 at the corner of Broad and St. Ann.

“Q. Have you ridden in that car often?

“A. For seven years,

“Q. Were there many passengers in the car?

“A. Yes, very crowded.

"Q. Have you never ridden on cars before as crowded as that?

“A. Yes, I am very careful to hold on when I get out, I think every one should do it.

“Q. How long have you been in New Orleans?

“A. Seven years.

“Q. Never in all seven years gotten .out without holding on to the handle?

“A. I always hold on.

“Q. Have you never gotten out of a crowded street car on the front of a street car just as that was crowded?

“A. I don’t think I have had that particular thing to happen that I could not catch the handle bar.

“Q. The cars are usually crowded?

“A. Yes.

“Q. Do you always hold to the rail getting off?

“A. Always.

“Q. What occurred to you after you started to alight?

“A. When I went to get out there was a man by the rail holding to the step, and on this side of me there were two men. When I looked out the place was narrow, and as I went to step out, my foot went, I don’t know just where and I was on the ground.

“Q. Did you use the hand rail?

“A. No. - '

. “Q. Why - did you not?

“A. There was no chance.

“Q. Why not?

“A. The man was in front of the hand rail.

Cross examination:

“Q. You are in good health?

“A. Yes, very good.”

The evidence is conflicting as to whether the front platform was crowded; but the preponderance of the testimony is that it was.

The crowded platform is the negligence charged to the defendant. Unless that constitutes negligence, plaintiff is without a case.

“Before plaintiff can recover, she must show that her injury was caused by defendant’s negligence.” Jackson vs. Natchez & W. Ry. Co., 114 La. 992, 38 South. 701.

“Unless fault (in the defendant) should be shown there is no necessity for passing upon an issue as to whether the plaintiff was guilty of contributory negligence.” Weber vs. N. O. & C. Ry. Co., 104 La. 367, 28 South. 892. “A carrier by street car is liable only for negligence.” 6 Cyc. 595.

This court will take judicial cognizance of the fact that in this city of New Orleans from the time street cars were first run, about the year 1860, it has been and is the custom up to the present time, tolerated, if not demanded by the public, that more persons should be admitted into the street cars than there are seats to accommodate them.

The result has been that the aisles and platforms at certain hours are overcrowded. But only a few have complained because the majority have understood that those conditions are unavoidable and necessary for the accommodation, convenience, and rapid transportation of all persons desirous of taking the cars or obliged to do so; nor has it been shown thq,t any greater harm, or injury, or damage, has resulted from this custom than is incurred in the ordinary business of running cars, or than is' inseparable from the business itself prudently conducted.

It cannot therefore reasonably be charged as negligence to do what it has been the common usage to do for more than half a century and from which no danger or injury has resulted.

T'o claim damages for an accident happening upon a crowded car it must appear that the accident happened by reason of the crowded car and from no other cause.

In the case of Olivier vs. Louisville & Nashville Rrd., 43 La. Ann. 804, 9 South. 431, the court said;

“A party voluntarily hoarding a crowded train and taking his place on the platform of a car, without complaint, or effort to obtain a seat or other better accommodation, cannot assign the overcrowding of the train as negligence in the railroad company.” Affirmed in Landix vs. Railway, 140 La. 529, 73 South. 668.

In the case of Jackson vs. Natchez Ry., 114 La. 981, 38 South. 701, the court sa’id on page 993:

“But the failure to provide a seat, or even standing room, inside of the coach, on a cheap excursion, such as this one was is not, as a matter of law, and is not shown as a mater, of fact to be negligence such, of itself alone, without the co-operation of any other or further negligence of the railway company, will give rise to a cause of action in behalf of an excursionist who is compelled thereby to ride on the platform, and as a result of being there, is injured by an accident occurring through no fault of the railway company.”

“A carrier, however, is not bound under all circumstances, to furnish a .sufficient number of cars to áccommodate all" with seats' who ■ may apply " for transportation, as unforeseen emergencies may often arise where the performance of such duty would involve an impossibility; it is required to furnish only suitable seating accommodations for the ordinary amount of travel, or for an extraordinary number on reasonable notice; and if a passenger with notice of the circumstances takes passage on a crowded car surrenders his ticket or pays fare, he waives strict performance of- his contract right to a seat.” 10 C. J., p. 807 S. 1236.

“Passengers who choose to take passage on a street car which is so crowded that they have to stand on the rear platform or on the steps and thereby block the exit from the car, assume all inconveniences incident thereto, including that of alighting when necessary to allow a proper exit for passengers who wish to get off.” 59 N. E. (Mass.) 639.

In the case of De Glopper vs. Nashville Ry., 33 L. R. A. (N. S.) 917, the Supreme Court of Tennessee said:

“Street cars run for the accommodation of the public, as well as profit to the company1, and the courts, cannot say that the fact that the company permits a large number of passengers to occupy the car, sufficient to load it heavily is an act of negligence.

“To so hold would work very great inconvenience to the traveling public and impair the efficiency of the car service. One of the' requirements of modern city life is rapid transit; and the public has demanded that the street cars, at certain hours of the day, be loaded to their utmost capacity. It is doubtful if the company could refuse’ to receive a passenger upon its car as long as there was room in the car for him. A tender to the company of the requisite fare and the ability of the passenger to find place of safety upon the car would impose an obligation upon the company to receive and transport the passenger.” See also 66 N. E. 418; 100 N. E. 1020; 74 Atl. 272; 50 Ill. App. 471.

We are aware that there are opinions in other jurisdictions at variance with these! But they' are governed , by conditions and habits and laws perhaps different from those prevailing here, which we cannot consider.

In this case the plaintiff had been riding in these same cars daily for the last seven years; she knew they were always crowded; she entered the car when it was crowded; she knew there was a hand rail and where it was; she says she had always used it;. she was at liberty to use it on this occasion; the' presence of one man in front of it was no insurmountable obstacle, just as she moved the crowd to get to the steps, she could have moved them to reach the bar. She made no effort to reach it, nor requested of the man to move.

The plaintiff argues that if defendant had put no hand rail to assist the passengers in getting upon and stepping out of the car, it would have been negligence. Perhaps it would and that having a hand rail on top of the car or at some other unattainable point would have been equally negligent. Perhaps so. But this is not the case here. Here, there was a hand rail, and the plaintiff knew where it was, and had always used it for seven years; she could easily have grabbed it if she had so desired.

We therefore conclude that there was no negligence on the part of' the defendant, and the judgment is therefore affirmed.


text:
    No. 9385
    Orleans
    PECK & MACK CO. v. KLINE, Appellant
    (June 7, 1926, Opinion and Decree.)
    (July 5, 1926, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 219.
    A purchaser cannot refuse to pay the price of goods on account of apparent defects which he might have discovered by simple inspection.
    Appeal from Civil District Court, Div. “E”, Horn Wm. H. Byrnes, Judge.
    Action by Peck & Mack Co. against Wm. Kline.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dart, Kernan & Dart, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   OPINION.

CLAIBORNE, J.

This is a suit for barbed wire sold and delivered.

The plaintiffs alleged that on August 9, 1921, they sold and delivered to the defendant 350 reels of painted barbed wire at the price of $2.56% per bale making a total of $1005.48 which defendant has failed to pay.

The defendant answered on May 30, 1922. He denied any indebtedness.

He alleged that “instead of the painted barbed wire, the plaintiff shipped wire dipped in creosote which was rusty, of no value, and not in accordance with the agreement of purchase which called for painted barhed wire”.

He filed a reconventional demand in which he claimed $315.19 and $20 per month for this; that the plaintiff shipped what is known as ereosoted wire which has no market in this section and is of no value; that defendant refused to pay for the same for the reason given and plaintiff promised to take the wire back but ultimately refused to do so; that the defendant paid the freight amounting to $135.19 and put the wire in his warehouse; that the storage thereof is worth $20 a month and amounts now, after nine months, to $180 which defendant claims.

There was judgment for plaintiff for $1005.48 with legal interest from August 31, 1921, subject to a credit of $155.71.

A new trial was applied for on the ground, among others, of newly discovered evidence.

That consisted of the testimony of Dr. Cline, an expert chemist who inspected the wire since the submission of this case, and reported to defendant, “that the wire was painted after it had become rusty and was therefore worthless and could not be used”.

This suit was filed in May, 1922, and was tried in July, 1923. The defendant had ample time to procure the testimony sought to be introduced. The condition of the wire was the very gist of the case and the testimony of the expert cannot be classed as newly discovered evidence. The Code of Practice, Art. 500, provides:

“If the party has discovered, since the trial, evidence important to the cause, which he could not with due diligence, have obtained before.”

The new trial was properly refused.

E. S. Rock, salesman for. the plaintiff, testified that they carry a large line of barbed wire both naked and painted or dipped wire; wire is not painted with a brush, it is dipped in asphaltum as the best coating; has never heard the expression “dipped barbed wire”; in June, 1919, the plaintiff purchased from the French government all the naked and painted barbed wire owned by the government and stored in the United States; they offered the wire to the trade; in July, 1919, defendant bought a quantity of it which was shipped to him and for which he paid; in July, 1921, the defendant came to plaintiff’s store in New York and ordered 350 rolls of black painted barbed wire at $2.56% per pound delivered at New Orleans; at that time he inspected a sample roll which was identical with the wire shipped to him in 1919, and identical with the wire shipped to him in 1919 and identical with the, wire shipped to «him in 1921; witness came down to New Orleans to try to adjust the matter, they were told that defendant would not return the wire or ship it to other customers until he was paid all storage charges and freight bills to New Orleans; witness saw Mr. Maloney, attorney for defendant, who said that the wire had been misrepresented to Mr.. Kline and that, he had advised him not to accept the shipment or pay for the same until they had paid all the handling charges; witness made certain offers of compromise to the defendant which were not accepted by the plaintiff. Barbed wire is of three kinds, plain or naked, painted, and galvanized; the plain wire has no coating, the painted wire received a coating of some preservative, on account of its nature it would be impossible to paint it with a brush, so it is dipped; the defendant had purchased this wire previously, so he knew what painted wire was; the preservative may he asphaltum and not creosote; witness inspected the wire thoroughly while in New Orleans and thought it was in excellent condition with the exception of very few coils which showed a spot of rust, on the very points of the barb; in fact in good condition, if not better than the previous shipment to the defendant. The wire was not rusty and was painted in the same manner as all wire he ever saw.

Morris Sandusky, general manager and president of the Sandow Tool Co. of New Jersey, in their business has had occasion to buy and sell large tonnage of that class of material and has been in and around steel plants for a number of years; has also given instructions to others as to black and gray paint barbed wires with good results; the cheapest process of painting wire is by the spraying process similar to an atomizer; at the same time as the spraying wire passes through a blower which dries the paint on the wire almost as fast as it is sprayed on; another method of painting wire is dipping the entire reel in a large vat containing the painting solution, then removed to a drying room where the paint soon dries on the wire; that is the older method. The only object of either method is to apply a coating to prevent a naked surface and consequent rusting.

The defendant Kline admits that he bought the wire and that the bill is correct, but he never saw a sample; he was told that it was black wire, painted, in good condition; he was not in New Orleans when the wire arrived, not before two or three months afterwards; “the wire was sold at a price a little below the market price”, he has been handling barbed wire for “20 odd years”; the wire did not- look painted' to'' him, it' looked stained with creosote; it was rusty; he attempted to sell it and several rolls were brought back; he offered it to Baldwin and to Stauffer-Eschleman, and they gave him “the haha”, “the laugh”; wire is painted with a brush or a dip, he supposes; he does not know the formula it goes through. Wire comes in a roll and sells for 3 or 3% or 3% cents a pound; when he saw the wire it looked to him very “bum”, looked like dipped in creosote, he supposes; during the war they dipped it; there is no market for dipped wire; southern people don’t want it.

Miss Mabel Kline, daughter of defendant, runs the store in his absence. She received the wire during defendant’s absence from the city; “more than half of it was rusty, coated with rust; other portions looked like it had been dipped or had some kind of black liquid on it”; she knows nothing about painted barbed wire.

Paul W. Maloney, attorney for defendant, testified that he had examined the wire with Mr. Kline one afternoon, and it looked to him as if it was not painted; it was rusty and in very bad condition, and he advised defendant to reject the entire shipment.

John W. Burdette has had experience with barbed wire; the painting is done with an air brush; it is sprayed; dipping is by far better than spraying.

The first difficulty in defendant’s way is that the defects he complains of are patent or apparent, such as he might have discovered by simple inspection, concerning which the law grants him no relief. C. C., 2521.

Plaintiff’s witness Rock, testifies that the defendant had purchased some of this wire two years before, and had received it and paid for it. This is not denied by defendant. Therefore he must have known what he was buying.

The same witness also testifies that defendant was shown a sample of this wire at the time he bought.

It is true that defendant denies this; but it is the testimony of one witness pitted against another.

“The burden of proof is upon the buyer .to establish the defects of which he complains. In the absence of such proof he must fail.” ’ 12 Orl. App. 352; 13 id. 165. '

The defendant purchased for a price below the market. That must have been an information to him that the wire was not in the' best condition. 12 Orl. App. 213.

But the most convincing argument comes from the defendant himself.

On September 28, 1921, defendant writes to plaintiff as follows;

“Regarding bill of August 9th, covering 350 rolls barbed wire, I want to be real frank with you and will say I made a mistake in buying same. We cannot sell anything but the galvanized barbed wire in this section, a point I was not familiar with at the time of purchase. However, I am willing to keep 100 rolls of this wire, and take a chance of moving same and will hold, subject to your order, 250 rolls, with free storage, until you dispose of same. If this is agreeable to you will remit you check for the 100 rolls on receipt of your reply.”

When plaintiff refused the offer contained in this letter, then defendant wrote the following letter, to the plaintiff on October 6, 1921:

“Your letter of the 3rd to hand, relative to painted barbed wire. I note carefully your remarks. Our Mr. Kline had just recently arrived home, and admits himself that he made a mistake in buying this wire. I will give your names and addresses of large local jobbers who will tell you if you ask that they positively cannot sell the painted wire in this locality, nothing but galvanized wire is marketable. If however you can assist me in disposing of the painted barb wire, I will appreciate it, the error was mine, or rather our buyer’s, but we figured you . would have a daily market for it, while we probably would never move it. Get busy and see what you can do in rolling it out. I will do my share of it from this end. The names of local jobbers I spoke of, who will not handle painted wire are Baldwin & Co., Stauffer-Eschleman and Co., Woodward Wight and Co., Pitard-Saxon Hardware Co. and United Hardware Co.”

On December 7, 1921, defendant again writes:

“Again 'referring to' invoice- of- barb wire dated August 9, 1921, I will again state thaf I am willing to keep1 and' pay for 100 rolls of this barb wire, although I honestly have not sold 10 rolls of this stock, but I will keep 100 rolls and pay you for them, and hold the balance subject to your order, or ship same back to you by boat. This is dead stock in this section', as I have told you in previous correspondence, and nobody wants it here.”

The plaintiff rejected this offer.

There is no intimation in any one of these three letters -that the wires were not painted, or that they were rusty and worthless. On the contrary, the defendant proffers his services to sell them to others.

It was only on December 30, 1921, presumably upon the advise of ■ his attorney, that defendant wrote to the plaintiff that he would not keep any of the wire, not one reel, because the wire was not painted, was rusty and worthless.

Prom the testimony, as a whole, we are bound to believe that the defendant made every possible effort to cancel his purchase because there was no market for that class of wire rather than for any defect in the quality of wire he had purchased.

The trial judge was of that opinion and his judgment is therefore affirmed.


text:
    No. 9165
    Orleans
    BERRY v. SMITH & SON, INC.
    (May 24, 1926, Opinion, and Decree.)
    (June 21, 1926. Rehearing Refused.)
    (Oct. 5, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 160 (I); Appeal — Par. 509.
    A judgment of non-suit, acquiesced in by plaintiff, will not be disturbed, on appeal by defendant, when it appears that there was no error in the judgment prejudicial' to defendant.
    Appeal from Civil District Court, Div. “F”. Hon. Percy Saint, Judge.
    Action by Thomas Berry against T. Smith & Son, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. A. Cologne, Boswell & Bryant, of New Orleans, attorneys for plaintiff, appellee.
    Terriberry, Rice & Young, of New Orleans, attorneys for defendant, appellant.
   OPINION.

WESTERFIELD, J.

This is a devolutive appeal, prosecuted by defendant, from a judgment of non-suit, in a compensation case. No appeal was taken by plaintiff and no answer was filed to defendant’s appeal.

The sole issue before us is defendant’s demand for a definite judgment.

Plaintiff’s injury was caused by the falling of a heavy weight on his right foot causing a fracture of the fifth metatarsal bone. Defendant admitted liability and paid compensation to plaintiff for a period of eighteen weeks at the rate of $18.00 per week or from June 14, 1921,' to October 21, 1921, and stopped further payments on the ground that plaintiff was no longer suffering disability caused by the injury.

Whereupon plaintiff sued for further compensation claiming that his disability continued.-

íhe' reasons' for judgment given by the trial court are as follows:

“This is a compensation suit. There is no dispute as to the injury; the only dispute is as to the injury extending beyond a certain date.

“The evidence of the different physicians is ■ so conflictihg that I am unable to determine that a preponderance of evidence is with the' plaintiff. I am inclined to think,- — from the' expert testimony in the record, — that the plaintiff is suffering more from neglected ‘flat feet’ than from any injury. At all events there is not that preponderance of testimony in favor of the plaintiff to justify the judgment asked for.

“There should he judgment as of non-suit and it is so ordered.

“PERCY SAINT, . “December 21, 1922. Judge.”

Three doctors, members of a firm of doctors employed by defendant, all of them of the highest standing in their profession, testified in substantial agreement that at the time defendant ceased making payments of compensation to plaintiff he was entirely well, so far as any effect of his injury was concerned, and quite able to resume his labors as longshoreman; that the only thing wrong with plaintiff at that time was flat feet, with which malady, if it may he so called, he had been afflicted long before the accident; that flat feet among negroes (plaintiff was a negro) is racial, by which we understand that individuals of the African race are predisposed to this trouble.

Three other physicians, of equally high repute, disagree, on important particulars, with the other three and, while admitting that plaintiff had flat feet before the accident, assert that he was still suffering from the effect' of the accident some time after defendant stopped his compensation. But one of plaintiff’s doctors, Dr. Hatch, is a specialist in orthopaedic surgery and has been for 22 years. He is the only specialist who testifies in the case. We are compelled to give greater weight to his testimony, other things being equal, when he testifies in relation to his specialty. He says, speaking of plaintiff’s condition some eighteen months after the accident:

“Q. * * * Doctor your conclusion from the examination and treatment of Berry is that though he is flat-footed in both feet, yet the right foot is more flat than the other, and that condition is either altogether or partially due to this accident he sustained — to trauma?

“A. Yes, sir, except you don’t put it quite as I would. I don’t want to say that it is more flat than the other but it is more rigid than the other.”

The extent to which the flat feet contributed to the disability whether racial, congenitial or systemic is immaterial, as we have recently held in Womack vs. N. 0. Public Service, No. 10,355 Orl. App. The' important consideration is whether plaintiff’s disability .continued beyond the time his compensation, voluntarily paid him by defendant, was stopped. Dr. Ficklin testified that on October 25, 1922, the last time he examined plaintiff, he was temporarily, and totally, disabled for work as a longshoreman. Dr. Lucas corroborates Dr. Ficklin.

It is true that defendant’s doctors, all equally able and reputable physicians, declare that plaintiff "was able to work, when discharged. But, after all, the only person who knew when plaintiff’s disability ceased, was Thomas Berry, the plaintiff himself. He says, most emphatically, and, quite naturally, that he was far from normal, when discharged. His wife agrees with him as might be expected. It is suggested that Berry is shamming or, as it is called, malingering. But it is proven, that, Berry earned an average wage largely in excess of $18.00 per week and we see no. reason for him to prefer the smaller sum even though he might be idle and receive it instead of working for the larger amount.

We recognize the force of counsel’s argument, to the effect that, after a fair opportunity has been afforded plaintiff to make out his case, there should be a definite judgment for defendant in order that there may be an end to litigation, and defendant spared the expense and annoyance of another trial. In this case however, we are not satisfied that the judgment appealed from is as favorable to plaintiff as might have been rendered under the evidence, and, we are not disposed to convert it into one less so, particularly since it is a compensation case.