text:
    No. 3175
    Second Circuit
    BIRD v. JOHNSON
    (April 9, 1931. Opinion and Decree.)

      Dickson & Denny, of Shreveport, attorneys for plaintiff, appellant.
    Hunter, Morgan & Hunter, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

On November 28, 1925, plaintiff sold to defendant a lot of ground in the city of Shreveport, with the improvements thereon, and at the same time he sold to defendant a lot of household furniture, for which a note for $400 was given in part payment. The deed to the lot of ground recites that evidence of the payment of the taxes was produced. The taxes were not paid on the lot of ground by plaintiff for the year 1925, and defendant was. forced to pay same or let the property sell for taxes.

1 Two payments of $100 each were made by defendant on the $400 note given for the furniture, and thereafter, becoming delinquent in making his payments, the plaintiff instituted this suit on the note for the balance due, including interest and attorney’s fees.

Defendant answered admitting that he executed the note, and alleged that it was given in payment of the furniture, and that, when he received the furniture, a number of articles that he had bought were missing, fixing the value of the missing articles at $102, and alleging that the note should be credited with this additional amount. Then, assuming the position of plaintiff in reconvention, he alleged that the taxes for the year 1925, amounting to $92.50, were paid by him and should have been paid by plaintiff, and prayed that the note be credited with $102, the value of the missing furniture, and that he have judgment in reconvention for the sum of $92.50, the amount of taxes paid.

The lower court rendered judgment for plaintiff as prayed for, and for defendant in reconvention in the sum of $92.50, for taxes paid, and for the further sum of $60 for the value of the missing furniture bought and not delivered. Plaintiff appealed from the judgment rendered in favor of defendant in' reconvention only.

Defendant has not appealed; therefore the only thing before us for review is the judgment rendered in favor of defendant on his reconventional demand. Defendant did not set up in reconvention a claim for the value of the furniture alleged to have been purchased and not delivered; neither did he pray for judgment for that amount in reconvention. Therefore that part of the judgment awarding defendant in reconvention $60 for the value of the missing furniture cannot be allowed, for the reason that it would be a judgment in excess of the amount prayed for, and he cannot recover judgment for more than he demands. Huff v. Fitzsimmons et al. (La. App.) 132 So. 257; articles 156, 157 and 553, Code Prac.

The testimony ^regarding who should pay the taxes for 1925 is conflicting, but the deed transferring the property on which the taxes were due corroborates the defendant, and we cannot say the judgment of the lower court is. erroneous in that respect.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by eliminating from the judgment in reconvention the sum of $60, for the missing furniture, and, as amended, the judgment of the lower court be affirmed; cost of appeal to be paid by appellee.


source: Caselaw Access Project

author: McGREGOR, J.

license: Public Domain

text:
    No. 3347
    Second Circuit
    NEW WAY FAMILY LAUNDRY, INC. v. LEBO (SOUTHLAND INVESTMENT CO., INC., Intervener)
    (April 9, 1931. Opinion and Decree.)
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for plaintiff, appellee. *
    J.- G. Gibbs, of Shreveport, attorney for intervener, appellant.
   McGREGOR, J.

The plaintiff, New Way Family Laundry, Incorporated, was the lessor of premises in the city of Shreveport, known as 1040 Marshall street, and the defendant, J. H. Lebo, was the lessee. The defendant failed to pay two months’ rent, and plaintiff undertook to collect the same by having all the property on the leased premises provisionally seized. No appearance was made by the defendant and judgment by default was entered and confirmed. Subsequent to the signing of this judgment, the Southland Investment Company, Incorporated, filed a petition of intervention and third opposition, wherein it asserted a superior lien on a portion of the property provisionally seized by virtue of a chattel mortgage, a copy of which was attached to the petition of intervener. The intervener prayed for the separate appraisement and sale of the property on which it claimed a chattel mortgage and asked that the proceeds of the same be held in the hands of the city marshal, to be subsequently paid to it, the intervener, hy preference and priority to satisfy its claim under its chattel mortgage. The necessary order was obtained and it appears that the sale was proceeded* with and that the order as to a separate appraisement and sale was complied with by the proper parties.

An exception of ’no cause of action was filed by the New Way Family Laundry, Incorporated, plaintiff herein, and defendant in intervention. Upon trial of the exception it was sustained and the intervention was dismissed. From this judgment the intervener has appealed.

No appearance has been made in this court by the intervener, nor have we been favored with a brief in its behalf. The appellee has filed its brief and from it we learn that the ground on Which the judge of the lower court sustained the exception of no cause of action was that the description contained in the chattel mortgage is not sufficient to identify the (property sought to be affected. In the body of the chattel mortgage the property is described as follows:

1 barbecue oven
1 coffee urn
1 gas cook stove
1 hamburger iron
1 steam table
1 barrel water cooler
1 lot of dishes, pans and cooking utensils
4 counters
3 tables.

There is nothing in this attempted description that would suffice to identify any of the property sufficiently to give the intervener a lien superior to the lessor’s lien sought to be enforced by this provisional seizure. In support of its contention the plaintiff and defendant in intervention has cited the following authorities, which we think are convincing and decisive of the issue involved herein:

Consolidated Engineering Company, Inc., v. Laws, McCray Refrig. Sales Company, Intervener, 11 La. App. 676, 124 So. 775; Valley Securities Company, Inc., v. Stafford, Plauche-Locke Securities, Inc., Intervener, 8 La. App. 607; Le Corgne v. Garner, 7 La. App. 148; Durel v. Buchanan, 147 La. 804, 86 So. 189; Continental Bank & Trust Company v. Succession of McCann, 151 La. 555, 92 So. 55.

The judgment appealed from is correct, and is therefore affirmed, the intervener to pay the costs of the intervention in the lower court as well as the costs of this appeal.


author: WEBB, J.

text:
    No. 3391
    Second Circuit
    SEBASTIAN v. JENNESS ET AL.
    (April 9, 1931. Opinion and Decree.)
    C. B. Prothro, of Shreveport, attorney for plaintiff, appellant.
    Clem V. Ratcliff and Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendants, appellees.
   WEBB, J.

Plaintiff brought this action to recover judgment for damages alleged to have resulted from burns of the scalp sustained by her on August 19, 1925, at which time her hair was dressed or given a permanent wave at a beauty shop operated by defendant, Mrs. Connia Jenness, wife of J. F. Jenness, co-defendant.

Plaintiff alleged that an electrical appliance had been used in the process and the manner in which the burn was caused; that the appliance used was defective and that the"' burn sustained was due to the defective appliance and the carelessness and negligence of defendant and the operator who dressed plaintiff’s hair.

Defendant answered admitting that an electrical appliance had been used, otherwise denying plaintiff’s allegations; and especially alleged that plaintiff had not made any complaint at the time her hair was being dressed, and that if plaintiff received any injuries, which was denied, such injuries were not caused by any fault or negligence of defendants.

The evidence established that plaintiff’s scalp had been burned or scalded while her hair was being dressed. There was no evidence introduced, however, tending to show that the electrical appliance used was defective, and the attendant, who was J. F. Jenness, co-defendant, stated that he had followed the usual method in dressing plaintiff’s hair with the appliance.

The evidence shows, however, that in dressing the hair with the appliance, strands covering about three-fourths of an inch of the scalp are gathered together in tresses or locks, each of which is curled around a small metal rod and wrapped with a damp cloth; and that the rod is then inserted in a metal cylinder, which is closed at the top; that the bottom of the cylinder, which is placed at a distance of about three-fourths of an inch from the scalp, is closed with a clamp, and pads fitted around each lock of the hair are placed next to the scalp. The heat is applied at the top of the cylinder and the clamp is used to prevent the vapor generated in the cylinders from escaping, and pads are placed on the scalp to protect it from the heat thrown off from the cylinder, and steam or vapor which may escape from the cylinder.

There were twenty-one locks or tresses, covering one-half of plaintiff’s head, being waved at the time plaintiff’s scalp was burned, and Mr. Jenness states he had properly adjusted the cylinders and clamps and had placed the pads around each lock next to the scalp; but the evidence shows that even though the appliance is in good condition and all adjustments made, it is possible for the steam or vapor to escape from the cylinders and pass between the strands of hair to the scalp and cause a scald to the scalp or for the scalp to be burned from the heat thrown off from the cylinders; and that in order to prevent the scalp from being thus injured, the-attendant stands by the patron while the heat is being applied, which was shown to have been done by the attendant, Jenness while plaintiff’s hair was being dressed.

The evidence does not show that the operator had any means of controlling the heat or that the vapor which may escape from the cylinders between the strands of hair could be seen by the operator, and that the operator relies upon the patron, who is usually instructed to give him warning when the heat is too great or the scalp is being burned by the heat or scalded by the vapor.

In the present case, the evidence established that plaintiff’s scalp was scalded and that the operator of the appliance, who was standing by plaintiff, had at hand an appliance with which such an injury’ could easily have been prevented had he known that the vapor was escaping from the cylinders; but the evidence is conflicting relative to whether or not plaintiff was instructed" by the attendant, and whether or not she warned the attendant that her scalp was being burned or scalded. Plaintiff states that she was not instructed, but that she had warned the attendant that her scalp was being burned, which was denied by the attendant. But passing the conflict in the testimony, the statement of the attendant relative to both questions reads as follows;

“Q. What instructions, if any, do you give or did you- give Mrs. Sebastian, or anyone else, when you give these permanent waves?
“A. You mean Mrs. Sebastian?
“Q. I mean anybody as respects to this feature of the matter.
“A. When we put curls on we instruct them to sit still. We tell them that they will fqel the general heat of the curler but if any peculiar feeling comes up or any undue heat to let us know immediately. And in the meantime not to move.
“Q. Did you give Mrs. Sebastian those instructions?
“A. I did.
“Q. Did she let you know about any particular curl or curler being too warm?
"A. No, she complained quite a bit about the weight of these things and pulling the hair. She said she could feel the heat and I told her just like I tell everybody else that she would feel the general heat from the process and I asked her if she felt the general heat, and she said she could; that she was feeling so that she didn’t have much feeling left, or something to that effect.
“Q. But did she ever complain or was there ever any complaint by her to you as .to too much heat on any one curler?
“A. There was not.
“Q. If there had been any complaint by her or if it had been made known to you by any method whatever that too much heat was being applied to any one curl or any heat escaping from the curler to the scalp, what would you—what could you and what would you have done to have prevented that?
“A. Well, there is two or three different things. You could either slip the curler entirely off or we have one of these little cold air appliances to attach and turn on; and any time they complain I turn that on right next to the scalp and leave i that on for a few minutes.
“Q. You are prepared with that appliance for that purpose?
“A. Yes, sir, in fact every permanent waver has some method of relieving the situation because all of them have to have it.”

The evidence shows that the heat thrown off from the cylinders is such that it requires some fortitude to withstand, and that it is not unusual for patrons to complain, and that when the complaint is merely of the heat, it is usually disregarded. Passing any question relative to the liability of the attendant for injuries sustained when the patron merely complains of the heat, we do not think that, considering the instructions given plaintiff and the complaint made by her, the attendant was warranted to disregard the complaint, but that the attendant should have heeded the warning and used the simple appliance which he stated was at hand, and which would have prevented tbe injury.

Appellees suggest, however, that plaintiff assumed the risk; but conceding without deciding that such defense could be interposed where the patron was fully advised of the danger, and instructed that the operator had no way of determining whether or not the scalp was being injured by the heat or vapor, and that he relied on the patron to give him warning, the evidence does not show that plaintiff was advised either, of the danger or that the operator was relying on her to warn him when her scalp was being injured, and it cannot be said that plaintiff assumed the risk. Barnett v. Roberts, 243 Mass. 233, 137 N. E. 353; Reed v. Rosenthal, 129 Ore. 203, 276 Pac. 684, 63 A. L. R. 1073.

We are therefore of the opinion that defendants are liable for the damages sustained. Plaintiff claimed damages for permanent injury, pain, mental anguish, and expense incurred in having the burn treated. The expense incurred by plaintiff in having the wound treated, including physician’s fees and traveling expenses to and from her home to the physician’s office, is not shown to have exceeded $75, and while plaintiff suffered • some pain, the evidence does not show that the pain was severe or continuous, and it appears that the scar left after the wound healed is not visible when plaintiff’s hair is dressed.

In Sweeten v. Freedman, 9 La. App. 44, $500 was allowed for damages resulting from a similar injury, and under the' evidence presented here, we are of the opinion' that $750 will cover the damage sustained by plaintiff.

It is therefore ordered that the judgment appealed from be avoided and reversed; and it is now ordered, adjudged and decreed that plaintiff, Mrs. H. H. Sebastian, have and recover judgment against defendants, Mrs. Connia Jenness and J. F. Jenness, in solido, in the sum of $750, with legal interest thereon from judicial de-' mand until paid, and all costs of suit.


text:
    No. 3645
    Second Circuit
    MERIWETHER SUPPLY CO., INC., v. ROY
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)

      Cook & Cook, of Shreveport, attorneys^ for plaintiff, appellant.
    James L. Dormon, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

In this action plaintiff sought to recover judgment against defendant in the sum of $714.11, with legal interest from November 1, 1927, for building material alleged to have been sold defendant in October, 1927.

The material which was used by defendant in constructing a building on premises owned by him, with the exception of cement, brick, and sand, invoiced at $16.40, consisted of “Celotex,” a wall board to be placed on the partition walls and ceilings, and material to be used in laying the material. There was not any contest relative to the amount of the bill, but defendant alleged that at the time he agreed to use Celotex, he had informed plaintiff’s representative that the studding and ceiling joists had been placed in the building with the view of using plastering or lumber on the walls and ceilings, and that Celotex would not be suitable; that plaintiff’s representative had insisted upon defendant using Celotex, and had guaranteed the work would be satisfactory, if defendant would permit plaintiff to select the workmen to put the material in the building. That defendant had, under the guarantee, agreed to use Celotex and had employed workmen designated by plaintiff, who had supervised the work.

Defendant further alleged that the material as applied was worthless, and would have to be removed at an expense of $80, and that he had paid the workmen $413.07 for laying the material, and that he should have judgment against defendant in reconvention for the amount which it would cost to remove the material, and amount paid to the workmen. He prayed that plaintiff’s demand be rejected, and for judgment against defendant in re convention for the amount stated.

On trial judgment was rendered rejecting the demands of both parties at plaintiff’s cost, and plaintiff appeals, urging that the evidence established the material, Celotex, was suitable for the purpose for which it was sold; that there were not any defects in the material, and that any defects in the work were due to the workmanship, for which plaintiff was not responsible.

There cannot be any doubt that the plaintiff was entitled to judgment for th.e price of the cement, brick, and sand, or $16.40, and as the evidence does not establish that the material, Celotex, was defective or not suitable for the purpose for which it was sold, we are of the opinion that plaintiff should recover, unless the evidence established that the workmanship was bad, and that plaintiff was responsible for the defective workmanship.

There was1 some conflict in the evidence relative to the workmanship, which did not, however, show that the work was useless, but conceding that the workmanship was defective, it is shown that defendant knew the plaintiff was not engaged in the contracting business, and was merely a dealer in building material, and the evidence further showing that defendant employed and paid the workmen who placed the material in the building, which was constructed by defendant on •his own premises, and that the material was suitable, the testimony of defendant and his agent that plaintiff’s- representative had guaranteed the work, which was denied by the latter, was not sufficient, we think, to show that plaintiff was responsible for the workmanship.

Certainly there could not be any presumption that one in insisting on a builder purchasing material from him warrants more than the quality of the material, or at most, that the material is suitable for the purpose for which it is to be used. But even though it should be implied that the seller, when he agrees to recommend workmen to lay the material, warrants their workmanship, in the present instance the evidence shows that the workmanship of the only workman recommended by plaintiff was satisfactory, and that the complaint made as to the workmanship was of that done by other workmen, who had charge of the work after the workman recommended by plaintiff had left the work.

Aside from this the evidence shows that defendant was fully advised that it would be necessary that the studding should be rearranged before the material was placed thereon, and that he had been shown buildings in which the material was used, and the evidence does not indicate that it required an expert to lay the material, but only a careful workman. And defendant, who saw the work as it was being done, having paid the workmen without any complaint of their work, cannot hold plaintiff responsible for their defective workmanship in laying the material.

The judgment appealed from is therefore annulled and avoided, and it is now ordered, adjudged and decreed that plaintiff have and recover judgment against defendant in the sum of $714.11, with legal interest thereon from November 1, 1927, and all costs of suit.

DREW, J., recused.


text:
    No. 3237
    Second Circuit
    TURNER v. ODEN
    (April 9, 1931. Opinion and Decree.)
    Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for plaintiff, appellant.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   McGREGOR, J.

This is a suit for $120 damages on account of the killing of a horse belonging to the plaintiff by an automobile belonging to and driven by the defendant. It is the contention of the plaintiff that the killing of the' horse was'.the result of the negligehce of the defendant, while the defendant contends that it was an unavoidable accident. Plaintiff was driving a one-horse wagon on his way-home, traveling south on the Jefferson highway about ten miles south of Shreveport, in the parish of Caddo. As he neared his home a young horse belonging to him was discovered loose on the highway. This loose horse at once began to follow plaintiff, trotting along by the side of the horse drawing the wagon. It was about 7 o’clock p. m., December 13, 1926, so that it was about two hours after sunset. Soon plaintiff observed an automobile coming behind him at a distance of about three hundred yards. He turned his head and looked back and began to try to signal to the oncoming automobile by waving his hat. As the defendant neared the wagon, he observed the young horse in the middle of the road, so he slowed down and shifted his car into second gear. He then observed the* young horse drop behind the wagon. He judged by this movement of the horse that it would be safe for him to get back in high gear and pass and run by the horse. On this point the defendant testifies as follows:

“A. I saw the horse at the'side of the wagon, Mr. Turner was standing up in his wagon, driving the horse hitched to the wagon as I approached him, he got to waving his hat, and I did not know what it was. about at first, but I saw that he was trying to drive the horse back and it slowed down and got behind the wagon and when he did that, I started by, and just as the front wheel was about even with the rear of the wagon, he was going along, his horse was trotting along, he afterwards told me that he was urging him along, so as to get the other horse off of the road as soon as he could, and I had two (2) kids in there bringing them home from school and just as I started by, this horse came out, with -his tail in the air and his head up and as he went by, he struck my, bumper or front fender, and he fell broadside in the road and just as he raised up, my car hit his back.
‘‘Q. Why didn’t you stop when you first struck the horse—why didn’t you stop when he started in front of the car?
“A. That is a funny question to ask me, have you not driven a car, I am sure you have.
“Q. I want to know why you didn’t stop?
‘‘A. I was going by the horse and I thought the horse was tied to the wagon, I naturally thought so, as I saw he had gotten in behind the wagon.
“Q. But you did see that he was not tied?
“A. Yes, sir, but I could not stop then, I had gotten out of second gear and was in high, like a man would do in going by a wagon.
“Q. Well, you knocked the horse down?
‘‘A. He fell down the first time that he struck the car, from the side, when he ran by the car.
"Q. Then he got up and ran in front of the car, after he struck it?
“A. Yes, sir, he fell in- front of me and as he got up, my car went under him and he sit down on the radiator and if I had been going fast, he would have come up over the windshield, no doubt.
“Q. You saw Mr. Turner waving his hat?
“A. Yes, sir. .
“Q. He was evidently signalling to some one somewhere?
“A. Yes, sir.
"Q. Then you slowed up; came to a stop, then started up?
“A. Yes, sir, after the horse got behind the wagon.
“Q. You first saw the horse running along by the side of the wagon?
“A. Yes, sir, and I slowed down and the horse got behind the wagon and as I thought, the horse was tied to the wagon.
“Q. How could a horse tied behind a wagon be running along by the side of the wagon?
“A. It could have a rope long enrugh to do it.
“Q. Didn’t you think that this horse very likely was not tied?
“A. No, sir, my natural conclusion was, that the horse was tied. I went as far around him as I could, on the side of the road.”

The plaintiff testifies as follows:

“A. I was going south on the Jefferson highway, as I came there in front of the house, I found the young horse in the road, I did not know that it was there, until I found him there, and my first thought that struck me, was to get the colt into someone’s yard, as a car might come along and kill it; in ihe meantime, I saw a light, coming practically three hundred (300) yards, and the road is practically straight for two hundred (200) yards, or rather—it is straight for about three hundred and six (306) steps, I stepped it, and I urged my horse on, as I could tell the car was coming at a rapid rate of speed and the horse was directly behind the wagon and I saw- that the car was traveling very fast, so I commenced to flag down, first flagged down with my hands and they didn’t seem to notice it and I took my hat, 'and he never paid any attention to that and about the time Dr. Oden got sixty (60) feet of the car, got close to the wagon, the horse ran out on the side, when he got even with my horse, he hit the horse, hit it ahead of me and knocked it off and he fell on the bumper and he pushed it up the road, before he stopped. * * *
“Q. You say that Dr. Oden’s car was about sixty (60) feet away when the horse came out to the side of the wagon?
“A. Yes, sir, he was practically even with the wagon—he was directly behind the wagon, when the car was about sixty (60) feet away and the lights were very bright and he ran around, ahead of my horse and wagon, when the car struck him.”

The testimony of plaintiff and defendant is rather conflicting, but the defendant’s theory is more plausible than the plaintiff’s. Furthermore, his testimony 'was concerning what he saw in front of him, whereas the plaintiff had to pay attention to driving and whatever he saw was behind him. The defendant was in a better position to testify as to how the accident happened than was the plaintiff. Defendant saw the danger of the situation and did all that appeared to him to be necessary to avert it. He came to a practical standstill and shifted his car into second gear, then, as he saw the young horse drop behind the wagon, he thought it was safe to pass the wagon; consequently he put his car into high gear and endeavored to pass, when, just as the front of his car got about even with the rear of the wagon, the horse suddenly darted to the left and ran forward between the wagon and. the automobile, and, before defendant was aware of what was happening, the horse ran in front of him and the accident occurred. Defendant’s automobile must have been proceeding at a relatively slow rate of speed, for, if it had been going fast, the horse would not have been able to catch up and run in front of him. The record shows that the defendant did use a great deal of care and' caution, apparently as much as any prudent' man would be required to use. He had his two little children with him in his car. He certainly would not have negligently risked their lives by not observing the usual rules of caution. He had a right to presume that, after the horse abandoned the middle of the road and had gotten behind the wagon, he would not suddenly run back into the road as the automobile was passing and get in front of him. It was a sudden situation, not to be expected. Defendant could not have foreseen it. He is shown to have exercised caution and prudence. If, under that situation, his judgment as to what the 'horse would eventually do when he endeavored to pass him, which he had a right to do, was not correct, it was not negligence on his part. The judge of the lower court saw and heard the plaintiff and defendant testify. He was in a better position to judge as to the correctness of their testimony than we are. He gave judgment in favor of the defendant and rejected the demands of the plaintiff. He evidently did this on the theory that plaintiff did not prove his case by a preponderance of testimony. We find no apparent error1 in his interpretation of the evidence.

For the reasons assigned, the judgment appealed from is. affirmed; the costs of both courts to be paid by the plaintiff.


text:
    No. 3221
    Second Circuit
    ELLIOTT ELECTRIC CO., INC., v. CLARK & MELAT DRILLING CO., INC.
    (April 9, 1931. Opinion and Decree.)
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for plaintiff, appellee.
    J. S. Peters, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

Plaintiff proceeded against defendant, a non-resident, by attachment, under which property belonging to the defendant was seized and bonded by defendant under the provisions of article 259, Code of Practice; and thereafter judgment was rendered in favor of plaintiff on default, from which judgment defendant appealed.

Appellant has not made any appearance here, and we do not know what was the basis of the appeal; that is, whether defendant claims there was a defect in the citation and seizure of the property, or that the evidence was insufficient to establish the debt claimed.

As stated, however, defendant bonded the property attached, and thereby cured any informality in the service of citation and submitted itself to the jurisdiction of the court (Williams v. Gilkeson-Sloss Commission Co., 45 La. Ann. 1013, 13 So. 394; First National Bank v. Johnson, 130 La. 288, 57 So. 930), and, from our review of the evidence presented on trial of the cause, we find that the debt claimed against defendant was established.

The judgment appealed from is therefore affirmed.


text:
    No. 3241
    Second Circuit
    FOWLER COMMISSION COMPANY, INC., v. GRAY & KEENER ET AL.
    (April 9, 1931. Opinion and Decree.)
    Dimick & Hamilton, of Shreveport, and Wimberly & Wallace, of Arcadia, attorneys for plaintiff, appellant.
    McClendon & Seals, of Homer, attorneys, for defendant, appellee.
   McGREGOR, J.

This is a suit on an open account for merchandise alleged to have been sold by the plaintiff to the defendant partnership between the dates of December 20, 1926, and February 22, 1927. The petition alleges that the plaintiff is a corporation domiciled at Shreveport, La., and that the defendant Gray & Keener is a commercial partnership composed of J. E. Gray and E. F. Keener, domiciled at Homer, La. No answer was filed on behalf of the partnership or of the defendant E. F. Keener. The answer of J. E. Gray admits, that at one time, prior to the sale of the goods described in plaintiff’s itemized account attached to its petition, there did exist such a partnership as is described in plaintiff’s petition, but that it had been dissolved by mutual consent "several months prior to December 20, 1926,” and that both the former members of the partnership had notified the plaintiff and the plaintiff’s, agent of said dissolution on several different occasions prior to December 20, 1926. The said defendant, J. E. Gray, therefore denied owing any part of the amount sued for on the ground that he did not order any of the goods described in the account.

There was judgment in the lower court in favor of the plaintiff against the defendant E. F. Keener, as prayed for, but the demand against the partnership, Gray & Keener, and against J. E. Gray individually was rejected. From that part of the judgment rejecting its demands against the partnership, Gray & Keener, and J. E. Gray individually, the plaintiff has appealed.

From the evidence introduced at the time of the trial it appears that the partnership of Gray & Keener was formed at about October 1, 1924, composed of J. E. Gray and E. F. Keener. It is contended by defendant J. E. Gray that the partnership was dissolved on October 1, 1926, and that the plaintiff had ample notice of this dissolution to put it on guard and to relieve him of any obligation on account of goods sold after that date. In his testimony Gray testified that in the spring of 1926, before the meeting of the Louisiana Legislature, he told R. W. Dodd, the salesman representing the plaintiff corporation, that the partnership of Gray & Keener would be dissolved about October 1 of that year. He also testified that he told Dodd this same thing some time in August of that year. Keener confirms this latter statement, but Dodd testifies that he has no recollection of either. There is no testimony whatever to the' effect that any notice of an actual dissolution of partnership was ever given to plaintiff or any one else after October 1, 1926, the alleged date of the dissolution, and prior to the sale and delivery o'f all the goods described in the account sued on. There is nothing in the record to show that the partnership was dissolved on October 1, 1926, except the bare statements of the two partners, J. E. Gray and E. F. Keener. There is. no testimony whatever of any settlement of the partnership or of any notice to any one of any dissolution. The business appears to have been continued under the name of Gray & Keener without change or interruption. There was no change of location and the partnership sign over the place of business remained. The bank account was continued in the name of the partnership, Gray & Keener, and both members of the partnership appeared to have checked on the account as freely as ever in the interest of the business. It is in evidence that the same stationery was used in the business as late as March, 1927, as was used before October, 1926, and that goods were sold and delivered in the name of the partnership during all that time as late as. March, 1927. Bills and checks were paid and written and cashed in the name of the partnership after the date of the alleged dissolution the same as before. The plaintiff, represented by W. B. Farrar, its vice-president, testified that no knowledge of dissolution was ever conveyed to it until after all goods sued for had been sold and delivered. R. W. Dodd, plaintiff’s, salesman, testified that he sold the goods to the partnership and that he had never had any notice of dissolution, either as of Oc tober 1, 1926, or any other date. He testified further that he did not recollect the conversations that J. E. Gray testified he had with him in the spring of 1928 and in August of that same year wherein it is contended 'that notice was given of an intended dissolution to take place in October of that year.

The goods were invoiced and consigned to Gray Keener in the same manner as the plaintiff had been doing for over two years, and when the goods reached Homer, Gray signed all the railroad receipts for them either in his own name or in the partnership name. He admits the signature in every instance.

It appearing that there was no notification to plaintiff of the actual dissolution of the partnership and that defendant J. E. Gray continued to hold himself out as a partner by his conduct and that he permitted the business to he conducfed under the partnership name after the alleged date of dissolution the same as before and that he signed for the partnership in the receipt of all the goods sued for, it is evident that he is hound in solido with the other member of the partnership, E. F-. Keener, just as though there had never been any pretended dissolution of the said partnership. In order for the defendant Gray to escape liability for the balance of the account sued on, it is necessary that he prove actual notice to the plaintiff of the alleged dissolution after it took place, and in this respect he has failed. Joseph v. Southwark Foundry & Mach. Co., 99 Ala. 47, 10 So. 327; McLemore v. Rankin Manuf’g Co., 68 Miss. 196, 8 So. 845; Lichenstein v. Murphree, 9 Ala. App. 108, 62 So. 444.

For the reasons assigned, that part of the judgment of the lower court appealed from and which rejects the plaintiff’s demand against the partnership, Gray & Keener, and against J. E. Gray individually, is annulled and reversed, and it is ordered, adjudged, and decreed that there be judgment herein in favor of the plaintiff, Fowler Commission Company, Incorporated, of Louisiana, against the partnership, Gray & Keener, and against J. E. Gray in solido with E. F. Keener for the sum of $1,579.72, with 5 per cent interest from January 1, 1927, and all costs of both courts.


author: DREW, J.

text:
    No. 3922
    Second Circuit
    MATHIS v. STANDARD OIL CO. OF LA.
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)
    William C. Boone, of Homer, attorney for plaintiff, appellee.
    T. M. Milling, F. L. Hargrove and John T. Guyton, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

This suit was filed under the Workmen’s Compensation Law of Louisiana (Act No. 20 of 1914, as amended).

Plaintiff asks, for judgment for compensation at the rate of" $20 per week for a period of four hundred weeks, and $250 for medical attention."

He alleges that he was in the employ; of defendant as a roustabout, and while working on an oil well at Haynesville, Claiborne parish, La., on the 25th day of October, 1929, and while working and attending to his regular duties, at his regular place of employment for the defendant company, as “floor” man, and while fishing for rods, he was holding the bull wheel, laying back upon the rope and kicking a block between the wheel and rope, when the gang pusher pulled the clutch in, catching and jerking petitioner in under the bull wheel, and mashing him to the. floor. That he was struck across the hip, pelvis, lower backbone, and spine, also crushing and bruising his lower bowels and intestines, spine, pelvis, backbone, twisting his back, hip, muscles, ligaments, nerves, legs, joints, and side, injuring his right leg, paralyzing his right side and his leg somewhat, including his hip, back, muscles, nerves, ligaments, and joints; injuring his head and other parts of his body on his right side, causing considerable pain and anguish; injuring his reproductive organs, causing them to swell, and possibly has brought about a condition whereby he has become impotent; ■ thereby leaving petitioner permanently injured and impaired to a total extent, and disabling him to do work of a reasonable character. Plaintiff alleges, that he was receiving as wages at the time of his injury $4.50 per day, for seven days per week.

Defendant ■ answered,. admitting that plaintiff was in its employ, as alleged. That he was. injured on October 25, 1929, by an accident arising out of and in the course of his employment. It admits the wages to have been $4.50 per day, for a seven-day week, and that plaintiff suffered certain injuries by said accident, but alleges they were only minor injuries and that it paid plaintiff' compensation at the rate of $20 per week, beginning October 25, 1929, and ending December 23, 1929, the total amount' being $168.57.

Defendant denies that it owes any more compensation, and alleges that plaintiff was fully recovered on December 23, 1929. It further alleges that it paid doctors’ bills, medical and sanitarium bills, and board and lodging while plaintiff was under treatment in Shreveport, to the amount of $184; that plaintiff signed a final receipt for compensation on December 23, 1929, and acknowledged in writing that he had fully recovered. Defendant prays that the demands of plaintiff be rejected, and in the alternative, should there be judgment against defendant, that it be credited with $168.57, heretofore paid plaintiff as compensation; and with the further sum of $184, heretofore paid for medical attention and services given plaintiff.

There was judgment ’ in the lower court for plaintiff for compensation at the rate of $20 per week,' beginning October 25, 1929, and ■ continuing as long as disability continues, not to exceed four hundred weeks, subject to a credit of $168.57 heretofore paid; also judgment for the further sum of $250, for’medical attention, subject to a credit of $184, and fixing the fees of the experts who testified in the case. Prom this judgment, defendant has appealed.

Under the pleadings in this case, the only question to be determined by this court is the extent of plaintiff’s injuries. Had plaintiff fully recovered on December 23, 1929, and was he at that time physically capacitated to do manual labor? If- not, had he fully recovered at the time of trial of this ease in the lower court, and, if so, when did he recover? If not, was he totally or partially disabled at the time of trial?

Plaintiff was a young i man twenty-three years of age on the date of the accident. He was in good health, and was very active and agile. He could run, jump, was a good wrestler, and could stand flat-footed and touch the ground with his hands, without bending his knees. Five months after the accident and at the time of the trial in the lower court, he had lost seventeen or eighteen pounds in weight, could not put his hands very much below his knees, could not step onto a chair and raise his body, one testicle was very much smaller than the other and appeared to be atrophied, following the injury; the scrotum was very black; he was suffering in several joints of the body; his bending was limited, especially in the right leg and lower part of the body, and he also limped, and Dr. Ragan testified that he was unable to make any full and free movement of the muscles on account of the .pain.

The above description of plaintiff’s, condition at the time of trial is given by Dr. Ragan, who examined plaintiff one week before trial, and his finding is corroborated by the testimony of Drs. Edwards, Cassity and Boyce, all who made an examination of plaintiff a short time before trial. The above-described condition is in addition to or caused by the bone injury which is described as a fracture of the transverse process on the right side, about the first lumbar vertebra, which seems to be broken off the attachment and not reunited; and also a fracture of the pubis in front. There is some dispute among the doctors as to the degree or kind of fracture, but it is certain that the fractures were there. The four doctors used by plaintiff testified that plaintiff was totally disabled to work at the time of the trial, and Dr. Ragan said he was too stiff and suffered too much pain to be able to work any time soon.

We especially quote Dr. Ragan’s testimony for the reason that his character, veracity, and standin'g as a surgeon and physician are vouched for by attorneys for both plaintiff and defendant, and both quote from his testimony. However, after a careful reading of Dr. Ragan’s testimony, we fail to see where defendant could get any consolation from it.

Defendant offered the testimony of Dr. Wolfe, who treated plaintiff immediately after the accident, and did not- make any further examination after the first three or. four weeks. He was not in a position to say in what condition plaintiff was at the time of trial. Dr. Wolfe evidently did not think plaintiff was seriously hurt, as is shown by his testimony. He did not find any injury to the bones at all, although all the other doctors admit there^was. bone injury of some kind, only differing as to the extent of the fracture and as to whether or not and to what extent the bone injury was repaired at the time of trial.

Dr. Walke made no examination of plain-tiff after- December 23, 1929, and therefore was not prepared to state his condition at the time of trial. He thought the plaintiff was well and able to work when he discharged him on that, date. The preponderance of testimony, however,- is that he was mistaken.

Dr. Quinn made only a cursory examination of plaintiff one time while, Dr. Walke was treating him, and his testimony as to the true condition of plaintiff is of little value.

The other doctors offered by defendant testified solely from, the X-ray pictures, which would only show injuries to the bones, and all of them admit there was some kind of injury to the pubic bone in front, and at least an abnormal condition of the transverse process on the right side about the first lumbar vertebra. There is no doubt that plaintiff received severe injuries at the time of the accident. His middle section was mashed almost flat. He was unconscious for some time and could not move himself in bed for several days, and we think the preponderance of the testimony shows that at the time of trial he was totally disabled from doing work, such as he was heretofore capable of doing. When, "if ever, plaintiff will recover, is' uncertain, and undep the jurisprudence of this state we can under such circumstances only allow him compensation of $20 per week from the date of injury until and as long as his condition remains as it is now, not to exceed four hundred weeks (Act No. 20 of 1914, as amended by' Act No. 85 of 1926, sec. 8 subd. 1(b)), subject to such credits as defendant is entitled to under the evidence for compensation heretofore paid, and $250 for medical attention, subject to the credit of $184, heretofore paid by defendant. Ix the injury was slight and the period of time of recovery was fixed with some degree of certainty, this court would be justified) in fixing that period in which compensation should be paid. That, however, is not so in this case.

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


text:
    No. 3931
    Second Circuit
    DAVIS v. HAWTHORNE
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)

      James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellee.
    Thompson & Ferguson, of Leesville, at-' torneys for defendant, appellant.
   WEBB, J.

Plaintiff, T. E. Davis, an employee of defendant, H. R. Hawthorne, received an accidental injury on October 17, 1929, while performing services incidental to and arising out of his employment, and this action was brought to recover judgment for compensation under the Employers’ Liability Statute (Act No. 20 of 1914, as amended).

Plaintiff alleged that his right hand had been caught between a saw and a piece of timber, injuring all of the fingers on the hand to such extent that he had lost the use of his fingers, and he prayed for judgment for compensation, at the weekly rate of 65 per' cent of his weekly wages of $30 for a period of thirty weeks for the loss of the index finger and for a period of twenty weeks for the loss of each of the other fingers (see section 8, subsection 1, subd. d, paragraphs 2 and 3, of the statute, Act No. 242 of 1928). Plaintiff further prayed that the payments for each period should begin on the date of the 'injury, and for legal interest on each payment from date of maturity; and, in the alternative, plaintiff prayed for compensation on the basis of partial disability to do work of any reasonable character (section 8, subsection 1, subd. c, of the statute).

Defendant denied the extent of the injury, alleging that plaintiff had entirely recovered therefrom four and one-half weeks from the date of the accident, for which period he admitted plaintiff was. entitled to compensation at the weekly rate alleged, or $87.50. Defendant further alleged that plaintiff was indebted to him in the sum of $100 for merchandise, and prayed that plaintiff’s demands be rejected and for judgment in reconvention against him in the sum of $25.50, with legal interest from judicial demand.

On trial judgment was rendered in favor of plaintiff as prayed for under the primary demand, and in favor of defendant in the sum of $96, under his reconventional demand, and defendant alone appeals.

In presenting the case here appellant urges that the court erred in awarding compensation as for the total loss of the fingers and in refusing to allow him judgment for the full amount of his re-conventional demand.

Considering the contention that the court erred in awarding compensation as for the total loss of the fingers; Appellant admits that the third finger had been injured to such an extent that it was useless, but h§ urges, that the evidence did not establish that there was a loss of the use of the little finger of more than 25 per cent, and of the first and second fingers of more than 50 per cent, and that the amount of the weekly payments should be reduced accordingly.

There was some conflict in the opinions of the physicians relative to the percentage of loss, of use as well as to the extent of the injury of the fingers; and if the injury to each of the fingers should be considered separately and distinctly, and compensation awarded on that basis, there might be some doubt as to whether or not plaintiff had sustained a total loss of the use of those fingers. However, all of the physicians agreed that considering the injury to all of the fingers plaintiff was unable to grasp anything with the hand, and while they expressed the opinion that plaintiff would have better use of his hand if the second and third fingers and two phalanges of the index finger were removed, appellant does not suggest that considering the injury as to the hand a period of ninety weeks would have been excessive. See Giroir v. Celotex Co., Inc., 10 La. App. 141, 119 So. 777.

While it may be that we would not be warranted in awarding compensation for the loss of the use of a hand (section 8, subsection 1, subd. d, paragraphs 5, 15 of the statute) under plaintiff’s prayer for compensation for the loss of the use of his fingers, we think the injury of the fingers must be considered as a whole; and the evidence establishing that all of the fingers were permanently injured and that at the time of the trial plaintiff did not have any use of his fingers, we are of the opinion that the judgment awarding compensation for a period of ninety weeks for the loss of the use of the fingers was warranted under the provisions of section 8, subsection 1, subd.' d, paragraphs 3, 5, 15 of the statute, and that, if not, such judgment would have been warranted under the decision cited.

Under the decree th^ payments were ordered to be made concurrently, and in that respect the judgment will be amended so as to make the weekly payments due consecutively for a period of ninety weeks. Rutter v. New Orleans, etc., R. R., 167 La. 570, 119 So. 877; section 8, subsection 3, of the statute.

Relative to -the reconventional demand: There was not any evidence which indicates that defendant had advanced plaintiff anything of value in payment of any compensation that may have been due him as the result of the injuries, and it appears that the transaction relative to such advances was entirely separate and distinct from the demand of plaintiff for compensation; and the demand being only for $100 the judgment of the district court was final, and this court cannot consider the appeal. Harper v. King, Gumby’s Dec. 64; Todd v. Shreveport Producing & Refining Corporation, 7 La. App. 120; Burt v. Allen, 11 La. App. 290, 123 So. 409; Albany Farm Bureau, etc., Ass’n v. Cogley, 11 La. App. 297, 123 So. 395.

It is therefore ordered that the judgment rendered in favor of plaintiff be amended and that the period of compensation be fixed at ninety weeks, the first payment beginning on October 17, 1929, with legal interest on each payment from date of maturity until paid, and that as thus amended the judgment is affirmed, at appellant’s cost. ”

It is further ordered that the appeal from the judgment on the reconventional demand be dismissed, at appellant’s cost.


author: TALIAFERRO, J.

text:
    No. 3106
    Second Circuit (Second Division)
    POLK v. SAUNDERS
    (April 9, 1931. Opinion and Decree.)

      Lee & Bell, of Mansfield, attorneys for plaintiff, appellee.
    Craig, Bolin & Magee, of Mansfield, attorneys for defendant, appellant.
   TALIAFERRO, J.

The present appeal is the second we have considered in this case. Heretofore it was remanded to the district court for( a new trial. 5 La. App. 450. This appeal .is prosecuted from the judgment of the district court following second trial, which is practically the same decree as was rendered after first trial, and by a different judge.

While this appeal has been pending the plaintiff and defendant have both died. The widow and heirs of each by motion have been substituted as parties to the suit.

In our former judgment the facts of the case' were somewhat set out at length, and these will not again he repeated except in so far as may be necessary to our reasons for the present judgment^

The evidence in the record before us is about the same as was considered on the first appeal. Our appreciation of the entire record leads us to believe that no material change in the status of affairs has been wrought by the new trial.

During the second trial C. P. Williams, who testified in the first trial, was again sworn as a witness and interrogated at length .touching his knowledge and recolr lection of the service of petition and citation on defendant, Polk, in suit No. 9457 on the docket of De Soto parish. This witness was a deputy sheriff when said suit was filed, and at date of second trial was sheriff of his parish. Most of his testimony was objected to by attorneys for Polk. However, the evidence of this witness, even considering it all, giving it full weight and credit, is worth very little in support of defendant’s contention that a legal ' service was made on Polk in suit No. 9457. He states that on account of the lapse of time since said suit was filed, and having served so many papers over the parish, he has no ' independent recollection of the service on Polk, and could not say whether he served the papers on not.

Quoting a part of his own testimony, viz.:

“Q. You have no recollection at this time of having testified on the confirmation of default?
"A. No, sir; I don’t remember it;, don’t remember a thing about it.
“Q. You do not at this time remember having made the service?
“A. No.”

This, witness further stated that, if he testified as’ a witness at the time case No. 9457 was confirmed on default that service had been made by him, then such evidence was true and he did make the service. Our view of the situation is such that, if we. give all the evidence of this witness the weight counsel contends should be given it, the result will not show a legal service on Polk.

We quote the evidence of this witness when testifying when the case was confirmed on default:

“Q. You know J. E. Polk?
"A. Yes, sir.
“Q. Did you in the suit oí D. W. Saunders vs. J. E. Polk make service on J. E. Polk?
“A. On his wife, Mrs. J. E. Polk.”

Nowhere in this evidence is it shown that J. E. Polk was absent from home when this service was made on his wife. The deputy who it is claimed made the service does not now recall anything about it. This important link in the evidence touching the mode and manner of making the service is conspicuously absent. J. E. Polk and his wife both testify that no service was made on either.

Code of Practice, art. 189, lays down the essentials for a valid domiciliary service, viz.:

(a) That defendant be absent.

(b) That the papers be delivered by the officer to a person apparently over the age of 14 years, living in the house of defendant.

(c) That such house be the usual place of domicile or residence of defendant.

And the return should show these facts, plus:

(d) That officer know the name of person to whom papers/ were delivered, or ascertained same by interrogating him or her thereon.

A defective return may be amended to meet legal requirements if the service in fact was valid and legally made. The officer making service may be heard to correct or amplify a defective or ambiguous return, when such has been assailed, in order to have it conform to the true facts of service, but he cannot be heard to contradict his official acts as disclosed' by the return. Baham v. Stewart Bros. & Co., 109 La. 1000, 34 So. 54; State v. Baum, 51 La. Ann. 1120, 26 So. 67; State v. Favre, 51 La. Ann. 441, 25 So. 93; O’Hara et al. v. Lumber Co., 42 La. Ann. 227, 7 So. 533; Adams & Co. v. Basile, 35 La. Ann. 101.

Let us. further analyze the situation as reflected from all the evidence adduced on the trial in the lower court concerning the question of service. Suppose at this date the original citation that issued in suit No. 9457 should be discovered, and the sheriff’s return thereon showed the same facts of service as he testified to at time of confirmation of the default on April 21, 1923, and said deputy could not recall how the service was made, of his independent recollection beyond what his return disclosed. In other words, the deputy could not recall if the defendant was absent from home at the time of the service or not. Would we not have the same situation as now confronts us? The return itself would be insufficient to establish valid service and no one to supply the missing facts, if such service were legal.

The deputy sheriff was permitted to' testify, over objection of attorneys for Polk, his rule and practice as to the making of service of citation and petition in cases where he found the' defendant absent from home. This line of testimony was elicited no doubt in an effort to eke out that such course was followed with regard to service on the defendant Polk. This evidence, even if admissible, can have no probative effect as against the established facts as we find them to exist.

The judgment appealed from is correct, and is hereby affirmed.


author: ELLIOTT, J.

text:
    No. 678
    First Circuit
    RESTER v. MOODY & STEWART ET AL.
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    (January 5, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    (April 27, 1931. Judgment of District Court and Court of Appeal Reversed by Supreme Court.)
    Ott & Rich, of Bogalusa, attorneys for plaintiff, appellee.
    Miller & Richardson, of Bogalusa, attorneys for Union Indemnity Company, defendant, appellant.
   ELLIOTT, J.

Henry E. Rester sold and delivered to Moody & Stewart motortruck material, such as parts, tires, grease, etc., in .amount $154.16, and same was by them used in the repair and operation of motortrúéks.' The 'trucks* were in turn used by them, in the construction of that portion of the. Sun-Bogalusa State Line Highway, which runs through the Fourth ward of Washington parish, and for which the said Moody & Stewart were contractors under the Louisiana Highway Commission. Their said contract obliged them to give a statutory bond, pursuant to the laws of this state on the subject. Union Indemnity Company of New Orleans went on their said bond, the bond stipulating a liability in solido on the part of the principal and surety.

Moody & Stewart failing to pay the account, the plaintiff brought suit against them as principal, and Union Indemnity Company as surety, on the bond, and prayed for judgment against them in solido for the amount due him on said account.

The plaintiff alleges that Moody & Stewart is an ordinary partnership composed of Julius. Moody and J. O. Stewart, domiciled in Pearl River county, Miss., but temporarily doing business in the Fourth ward of Washington parish.

The citation addressed to Moody & Stewart was served to J. O. Stewart, a member of the firm, in person in the city of Bogalusa. Neither Moody & Stewart nor the members of the firm making any appearance, judgment by default was entered up against Moody & Stewart and J. O. Stewart.

Union Indemnity Company appeared and excepted to plaintiff’s demand for judgment against it, on the ground that it was a resident of the city of New Orleans, and therefore could not be sued in the city court of Bogalusa. That said city court was, as to it, without- jurisdiction ratione personEe. This exception was overruled.

An exception of' no cause or right of action was then filed and overruled. Union Indemnity Company then filed an answer. The defensive parts of the answer deny that Moody & Stewart are indebted to the plaintiff, but, if so, that it is not liable with them therefor in solido, but for them only as surety. It denies that the articles furnished by plaintiff to Moody & Stewart' are; materials and supplies such as a surety is liable for under the law Act No. 224 of 1918 (amended by Act No. 271 of 1926).. But it prays that in the event judgment is rendered against Moody & Stewart or any member of the firm, and it is further held responsible therefor, that in that event it have judgment in turn against them for whatever sum it may be required to pay on their account.

The case, was. submitted to the court on an agreed statement of facts. There was final judgment, confirming the default against Moody & Stewart and J. O. Stewa.rt, and against Union Indemnity Company upon issue joined in solido for the amount claimed by plaintiff.

Union Indemnity Company appealed and urges that its exception to the jurisdiction of the court should have been sustained.

It is admitted that the Union Indemnity Company is a resident of the city of New Orleans, La., and that Moody & Stewart, as well as Julius Moody and J. O. Stewart, members of said firm, are residents of Poplarville, Pearl River county, Miss., but that said firm was temporarily in the Fourth ward of Washington parish, as contractors engaged in said construction work. This court takes cognizance of the fact that the city of Bogalusa is situated in the Fourth ward of Washington parish.

As Moody & Stewart were personally in the Fourth ward of Washington parish and engaged in business therein at the time, and within. the jurisdiction of the city court of Bogalusa, the city court acquired jurisdiction ratione person® as to them by the citation addressed to Moody & Stewart and served on J. O. Stewaft, a member of said firm, in person, as shown by the return. Pacts not appearing in the record necessary to the jurisdiction of the court as to Moody & Stewart will be presumed to have been proved to the satisfaction of the judgb a quo.

Non-residents may be personally cited at the place where they are found engaged in doing business in the state. Code Prac. art. 165, subd. 5; Act No, 179 of 1918, sec. 1, paragraphs 4, 12 and 13 et seq. As the jurisdiction ratione person® of the city court of Bogalusa is established as to Moody & Stewart, it follows that the city court of Bogalusa had jurisdiction ratione person® as- to the Union Indemnity Company, the surety on their bond. Act No. 41 of 1894,| sec. 8, subjects sureties- on the bonds of contractors to the same obligations in the matter of jurisdiction to which judicial sureties are subject under Civil Code, art. 3042 (amended by Act No. 225, p. 342, of 1908). Bowers v. Orleans Producing & Refining Co., 1 La. App. 784; Nelson et al. v. Continental Asphalt & Petroleum Co., 11 La. App. 450, 123 So. 474. See, also, Act No. 224 of 1918, sec. 4. The exception to the jurisdiction of the court was- properly overruled.

Union Indemnity Company contends on the merits that the account sued on is not for materials and supplies, such as the surety is liable for under the law, Act No. 224 of 1918 (amended by Act No. 271 of 1926). The account sued on- shows that it is for parts and tires and perhaps a few other articles furnished by the plaintiff to Moody & Stewart who, it is admitted, were engaged at the time in the construction of said highway in the Fourth ward of Washington parish, and used the articles shown on the account for the repair of trucks used by them in the construction of said highway under their said contract and to insure which the said bond was, given.

The defendant contends that the language of the law on the subject shows that it is only such things as are used in a machine, id est, that are .consumed in the use for which the law authorizes recovery against the surety.

The language of the law) section 1 is as follows:

“For the payment by the contractor * * *' for all material or supplies furnished for use in machines used in the construction * * * or repair of * * * road, work.”

And section 2 of the law reads as follows;

"That any person * * * to whom any money shall be due on account of having * * * furnished any material in the construction, erection * * * repair of any such * * * road * * *, or any person * * *, to whom any money shall be due on account of having furnished material or supplies for use in any machine used in the construction * * * or repair of any such * * * road,” etc.

Union Indemnity Company contends that the law, has a meaning which we do not believe was intended by the Legislature. The statute, in saying' “having furnished material or supplies for use in any machine used in the construction of any * * * road,” obviously means materials and supplies for use on any machine used in the construction or repair of any road. The Act No. 271 of 1926 was no doubt prompted by the decisions of the Supreme Court construing the liability of the surety, ■ in Act No. 224 of 1918, in Red River Construction Co. v. Pierce Petroleum Corporation, 165 La. 565, 115 So. 752, and State v. Smith, 167 La. 302, 119 So. 56, and some decisions- of the Court of Appeal, and the Legislature decided to broaden the meaning of the act. The word “in,” as used. in the act, evidently has • the same meaning as the word “on”; otherwise the amending act would not accomplish what was evidently intended. Civ. Code, art. 18.

The judgment appealed from is correct, except that the plaintiff, under the law, is entitled to 10 per cent on the amount due as attorney’s fees. Attorney’s fees were not allowed and the plaintiff has answered the appeal, praying that same be allowed.

For these reasons the judgment appealed from is now amended and corrected so as to read as follows:

It is ordered, adjudged, and decreed that there be judgment herein in favor of Henry E. Rester and against the defendants Moody & Stewart and J. O. Stewart as an ordinary partner ' and member of said firm, and Union Indemnity Company jointly, severally, and in solido, for $154.16, with legal interest thereon from February 14, 1930, until paid, and for 10 per cent in addition on the said amount due as attorney’s fees, and for all cost in both courts.

And it is further ordered, adjudged, and decreed that there be judgment in turn in favor of Union Indemnity Company and against Moody & Stewart and J. O. Stewart as. an ordinary partner and member of said firm, for the full sum and amount that Union Indemnity Company is required to pay to the said Rester under this judgment, and all cost of court incurred on account thereof.

And as thus amended and corrected the judgment appealed from is affirmed.


author: LeBLANC, J.

text:
    No. 714.
    First Circuit
    HAAS v. GLOBE INDEMNITY CO.
    (January 26, 1931. Opinion and Decree.)
    (March 3, 1931. Rehearing Refused.)
    (April 27, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      John W. Lewis and Leon S. Haas, Jr., of Opelousas, "attorneys for plaintiff, appellee.
    L. L. Perrault, of Opelousas, attorney for defendant, appellant.
   LeBLANC, J.

The defendant appeals from a judgment of the district court which awarded the plaintiff compensation under the Employers’ Liability Law (Act No. 20 of 1914, as amended) in the sum of $20 per week for a period of one hundred weeks, for the loss of his left eye.

Plaintiff, John A. Haas, who was employed by his father, Leon R. Haas, elected to bring suit directly against his employer’s indemnitor, the Globe Indemnity Company.

He alleged in his petition that he was employed as manager of a gasoline oil filling station in the city of Opelousas, and that on June 4, 1929, while repairing an automobile tire for a stranger, which work was within the scope of his employment, he was struck in the left eye by a tire tool which slipped while he was attempting to remove the tire from the rim of the wheel to which it was attached. As a result of the accident, he avers that it became necessary to remove the injured eye, the operation therefor having .been performed by Dr. W. R. Buffington, at the Baptist Hospital in .New Orleans, on or about June 13, 1929.

In his original petition, plaintiff alleged that his weekly wage was $15, and he accordingly demanded -compensation at the rate of 65 per cent of $15, or the- sum of $9.65 per week for a period of one hundred weeks, that being the compensation provided for under our statute (Act No. 20 of 1914, sec. 8, subsec. 1, par. c, as amended by Act No. 242 of 1928, sec. 1) “for the loss of an eye.”

In answer to the demand, defendant denied that the plaintiff had been injured as alleged by him, and, as an alternative defense, urged that if he had been injured as claimed that the removal of the' eye was in no way connected with the injury he is. said to have received on June 4, • 1929, but was. due to another injury to the same eye which "plaintiff had sustained four or five years before, when he was shot ■ by an air-rifle ball.

As a further alternative defense, it is urged ■ that if it be held that the injury of June 4, 1929, was the proximate cause of the removal of the eye, that plaintiff’s vision had been so impaired prior thereto by reason of' the former accident, he is only entitled to compensation in an amount proportionate to the degree of sight or usefulness of the eye that remained. That degree, it is claimed, should not in any event exceed 25 per cent of. the amount sought to be recovered.

In a supplemental petition filed subsequent to the filing of defendant’s answer, plaintiff alleged that the fixing ” of his weekly wage at $15 in his original petition was in error, because 'as a matter of fact he was receiving from his employer, in addition thereto, and as compensation for his services, board and lodging, laundering, cleaning, and pressing for1 himself and-his wife, all of which amounted to $75 per month, and therefore he was entitled to the maximum compensation of $20 per week as provided in 'the statute, for the period of one hundred weeks. All of this, the defendant, in answer, denied.

It thus appears that there are three separate and distinct questions which present themselves for consideration and determination:

1. Did the plaintiff suffer an accidental injury to his left eye on June 4, 11929, as set out in his petition, and, if he did, was that injury the cause of the total loss of vision in the eye and of its consequent removal?

2. Does the removal of an eye which had been injured in a previous accident, and which injury had caused an impairment of vision, constitute “the loss of an eye” as contemplated under our Workmen’s Compensation Law?

3. Are board and lodging, laundering and pressing) furnished to the employee by the employer in the way of wages to be taken into consideration in determining what are the employee’s weekly wages under the compensation statute?

Plaintiff gives a frank and straightforward account of how, on attempting to remove a flat tire from a stranger’s automobile on June 4, 1929, at about 8 o’clock in the morning, the tire tool, with which he was trying to pry the rim from the wheel, slipped while he was in a stooping position, and struck him in his left eye. There isi no denial of his statement except by inference to the effect that he did not complain to any one at the moment of receivihg the severe injury he claims, and continued working on the tire until he had finished repairing it. He explains that he was alone at the time, the negro help having been called to render service to some one on the road, and the customer he was attending had asked him to hurry his job. He did, immediately upon being struck in the eye, call his personal friend and physician Dr. Oscar Bienvenu over telephone, and the latter answered his call within fifteen or twenty minutes. That he did continue to render service in the face of suffering we think is rather commendable and in no way does it detract from his account of the accident.

Dr. Bienvenu corroborates his testimony to the effect that he arrived at the filling station within a few minutes after receiving his call. He says that he found plaintiff complaining of an injury to his left eye, which, on examining, he found to be red and bruised and appeared to have been recently injured. He was plaintiff’s close friend, was frequently in his company, and had not noticed that appearance in his eye before. There was no doubt in his mind that the present condition of the eye had been produced by an injury of recent origin. Louis Desamore, the negro helper around the station, returned from the road service call while Dr. Bienvenu was examining plaintiff’s eye, and he also says that it was. red and bloodshot, a condition he had never seen in it before.

To the extent that he also observed the discoloration in plaintiff’s left eye the day of the accident, which condition did not exist before, it may be said that the testimony of his father, Mr. 0 Leon R. Haas, is also corroborative on this point.

There is an abundance of proof, therefore, to support the finding of the trial court that plaintiff did receive an injury to his left eye on the morning of June 4, 1929,. in the manner as stated by him.

He testifies that when he was struck, his vision in that eye became totally obscured. “I noticed everything went black,” he says: “I closed my right eye and the light was all gone.”

It is shown that some four years prior to the present accident, plaintiff had been accidentally shot in this same eye by an air-rifle ball. He did not, however, lose the entire vision in the eye. “There was always light,” he says, ‘‘and I could distinguish light from darkness after the accident.” He was under ' the care and treatment of Dr. Feingold of New Orleans, for about two years, and showed improvement enough to justify that eminent eye specialist to discharge him.

Dr. George R. Beridon of Opelousas, who specializes in diseases of the eye, nose, ear, and throat, testified as witness for' the defendant, and while his testimony is not favorable to the plaintiff with regard to what was the proximate cause of the removal of his eye, it cannot be j said to be unfavorable. Dr. Beridon knew young Haas and was acquainted, not professionally, however, with the fact of his injury from the air-rifle shot. It was Dr. Bienvenu who took the plaintiff to his office for an examination a few days after the accident at the filling station. During the examination, it is shown that Dr. Beridon was not told anything about this last accident, and, knowing only of the former, quite naturally, in our opinion, he associated it with the condition he found in the eye. He could see, however, so he says, that the eye had been subjected to some traumatism. At the moment he considered it necessary to advise an* immediate removal of the eye, but this advice- was based on the actual condition which presented itself, and he makes it plain that he was not interested in the cause at all. It is. shown that Dr. Feingold did not at any time suggest or advise the removal of the eye after the first injury. It is reasonable to assume that he would not have removed it considering the improvement he reported to his patient and also the amount of vision that remained in the eye. On the other hand, Dr. Buffington lost no time in removing it after the second injury, and it is equally reasonable to assume that he would not have done so unless it was absolutely necessary and the sight was all gone.

From the facts as we find them and appreciate them, we think it is safe to conclude that it was the accident and injury , which plaintiff received on June 4, 1929, that was the proximate cause of the removal of his eye.

The second question presented comes under defendant’s first alternative defense that plaintiff’s recovery, if he is entitled to any, should be restricted to the degree of vision which he had remaining in the injured eye before the accident. The amount defendant arbitrarily fixes at 25 per cent of normal, and it would have compensation limited to twenty-five weeks.

The defense of comparative vision or tlu prior loss of the industrial use of . the eye seems, to be presented here for the first time in our jurisprudence; but if we are to give consideration to the adjudications of appellate courts in other jurisdictions where, in workmen’s compensation statutes, like in ours, compensation is allowed “for the loss of an eye,” we are bound to holc(, under the weight of authority, that the doctrine does not apply here.

Most of the decisions, as we view tftem, are grounded on the clear provisions of the statute which awards compensation “for the loss of an eye” and makes no reference whatever to any impairment of the sight or the loss of any degree of vision therein.

In Hobertis v. Columbia Shirt Co., 186 App.Div. 397, 173 N. Y. S. 606, 607 (1919), it was said:

“The statute does not provide that the loss of the use of an eye shall be compensated by an award based upon the amount of vision which existed previous to the accident, whether it be 50 per cent or 80 per cent of vision lost. It! awards specific compensation for the loss of an eye.”

In Michigan, the Supreme Court of that state has had the question before it on a number of occasions, and it has consistently held that:

“Where servant’s eye was injured necessitating removal, he was entitled to full compensation for loss of an eye as provided! by Workmen’s Compensation Act, pt. 2, sec. 10, notwithstanding an earlier injury had impaired vision of eye to extent that he could not see anything directly in front of him, and -could not see| with it to do his work, although upon turning his head sideways, he could distinguish objects at some distance. Liimatta v. Calumet, etc., 229 Mich. 41, 201 N. W. 204.”

In an earlier case, Purchase v. Grand Rapids, etc., 194 Mich. 103, 160 N. W. 391, 392, that same court, in awarding r-™--sation to an employee for the loss of an eye by removal, in which sight had been greatly impaired by a previous- accident, said :

“The Legislature has not attempted a definition, or made a declaration, applicable to the case at bar, ’except in terms of the loss of an eye. It has not specified a normal eye, although it may be concluded that the law refers to an eye which performs in some degree the functions of a normal eye. A mere sightless organ might perhaps be considered no eye at all. Claimant has lost an eye, although' an infirm one. It was not wholly useless as an eye. On the contrary, the testimony is that he could with it, distinguish light and see approaching objects. As a result of the injury, there was disability, - and the disability is ‘deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified.

The facts, as they appear from that decision, are strikingly similar on this point, to those :in the case before us; the difference, if any, being that the plaintiff here enjoyed more vision. The testimony reveals that in his anxiety to learn if he was recovering more of his sight, he frequently had his father and friends conduct tests with him, which showed that he had improved to the extent that he could discern objects and could also count the fingers of the hand and read bold type and headlines in the newspapers at a distance of eight inches, or a foot. For that reason it can be said that h'e had'even greater use of his injured eye than did the plaintiff in the case last quoted from.

The Supreme Court of Minnesota had the same question before it in the case of Mosgaard v. Minneapolis Railway Co., 161 Minn. 318, 201 N. W. 545, and held that a workman, although blind from childhood in an eye which was injured in a subsequent accident, requiring its removal, was entitled to compensation for the full “loss-of an eye” as provided for in the Compensation Law of that State enacted in 1921.

In Chicago Bridge & Iron Co. v. Industrial Commission, 316 Ill. 622, 147 N. E. 375, we note the Supreme Court of the State of Illinois, citing some of the foregoing authorities with approval in passing on the same question which was involved in the case before it.

There are jurisdictions in which it has been held that where the employee had already lost the use of his eye, he cannot recover for the loss of the organ by removal because of another accident, but the weight of authority, as already pointed out, seems to be otherwise, and as it appears to be more consonant with the clear and specific provision of our statute, we feel safe in following it in this case by allowing the plaintiff, as did the lower court, compensation for the full loss of his eye, for the full period of one hundred weeks.

We come now to the last question presented, that is, whether or not, under our Compensation Law, the amount furnished the employee by the employer in the way of board and lodging, laundering, etc., can be taken into consideration, in computing his average weekly wage. Here again, it seems, we have a matter that is res nova in our state.

We can think of no sound reason why such items should not be included in computing an employee’s earnings, provided, of course, they have been actually furnished. There seems to be no doubt that they were in this case'.

We have been referred to no case by counsel for defendant in which they were excluded in the computation, and, on the other hand, counsel for plaintiff has cited and referred us to a number of decisions from other states and also some English cases, in which their value was considered in arriving at the amount of the average weekly or daily wage. Attention is called to the cases of O’Callahan v. Dermedy, 197 Iowa, 632, 196 N. W. 10, 197 N. W. 456; Medland v. Houle, 202 Mich, 532, 168 N. W. 446; Baur v. Court, etc., 88 N. J. Law, 128, 95 A. 627; Dauthie v. MacAndrew, Butterworth’s Compensation Cases, vol. 1, p. 308; Rosenquist v. Bowring & Co., 1 Butterworth’s Compensation Cases, p. 395; and others. Those of the cases cited to which we have had. access support the contention that board and lodging are included in the computation of a workman’s wage when furnished as part of his pay.

In an English case, Helps v. Great Western Ry. (1917) W. C. & Ins. Rep. 199, which we find in an annotation in Negligence and Compensation Cases Annotated, vol. 15, p. 1015, the court permitted the applicant for compensation, who was a passenger porter in the employ of the defendant, to include the average weekly tips of 12s. which he received in the computation of his earnings. In Sloat v. Rochester Taxi-Cab Co., 177 App. Div. 57, 163 N. Y. S. 904, the court extended the same benefit of including tips to a taxicab driver, in reaching the amount of his wages on which to base. his. compensation. If tips and gratuities contributed to the employee by the travelling public are -to be taken into consideration, a fortiori should the board and lodging furnished him as an incident to his contract of employment be included in computing the employee’s average weekly wage.

It is urged that these items so furnished to the plaintiff were not carried by the employer on his books from which the defendant made its schedule of wages on which to base the premium to be paid by the employer, but we agree with the learned trial judge that the employee cannot be held responsible for the failure of his employer to so enter them. He cannot be deprived of his compensation for any irregularities which .may appear in his employer’s books.

We find the judgment of the lower court to be correct in every respect, and it is therefore affirmed.