author: JANVIER, J. WESTERFIELD, J. (dissenting). BOATNER, Judge

text:
    No. 11,985
    Orleans
    GRUNDMANN v. TROCCHIANO ET AL.
    (February 16, 1929. Opinion and Decree.)
    (December 26, 1929. Opinion and Decree on Rehearing.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for appellant, Crescent Candy Co., Inc.
    Francis P. Burns, of New Orleans, attorney for appellee.
    Herve Racivitch and Robt. L. Hickerson, of New Orleans, attorney for Walter B. Moses.
   JANVIER, J.

Ernest Grundmann received injuries as the result of the fall of an elevator in which he was descending from the fourth floor of a building belonging to Peter Trocchiano and Walter B. Moses, two of the defendants. The first and second floors of the four-story building were leased to Crescent Candy Company, Inc., a corporation of which Trocchiano was secretary-treasurer.

The fourth floor had been leased to Liberty Candy Company, Inc., of which a Mr. Hugo was president and manager.

The lease from Trocchiano and Moses to Crescent Candy Company, Inc., and the lease from Trocchiano and Moses to Liberty Candy Company, Inc., were both in writing, and each contained the following stipulation:

“If there are any elevators, lifts, machinery or plate glass on the premises, the care, maintenance and repairs of same are assumed by lessee, together with all liability or claims for damages.”

During January, 1927, the Liberty Company was losing money, and Mr. Hugo, on behalf of that company, and Mr.' Grundmann, plaintiff, who was an employee and a stockholder of the Liberty Company, made a verbal agreement under which Grundmann took over the fourth floor, including the use of the machinery of the Liberty Company, and began the manufacture of candy on his own account, using the trade-name “Merchants’ Candy Company.”

On February 23, 1927, while Grundmann was on the elevator, together with a customer, the elevator tender, and some bundles, the elevator fell a distance of about 50 or 60 feet, and Grundmann received injuries which formed the basis of this suit. He seeks to hold Trocchiano and Moses liable as owners of the premises under articles 670 and 2322 of the Civil Code, which articles read as follows:

670. “Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.”
2322. “The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

Liability is sought to be fastened on the Crescent Candy Company, Inc., by reason of the charge that Grundmann was occupying the fourth floor of the building as sublessee of that company and also by reason of the assumption by that company in its lease of the liability for -damages resulting from the defective condition of the elevator; Grundmann claiming that, since the Crescent Candy Company, Inc., assumed the duty of keeping the elevator in repair, he, having a right to be in the building and to be on the elevator, can hold that company under that assumption in addition to his right to hold it as his landlord.

The owners of the building deny their liability on the ground that Grundmann was in the building as the substitute for Liberty Candy Company, Inc., and that, as the lease to that company also contained the stipulation placing upon it the duty of keeping the elevator in repair, and since Grundmann’s rights arise only through the lease of the Liberty Candy Company, Inc., that clause in the lease is effective against Grundmann and deprives him of his right to recover from them.

The Crescent Candy Company, Inc., contends that it had no contractual relationship with Grundmann and that the clause in its lease is nothing more than an indemnity agreement in favor of the owners of the building and does not create any direct right in third parties.

The most important question to be determined is whether Grundmann took over the lease of the Liberty Company, or was given a new lease to the fourth floor by the . owners of the building.

If he “took over” or assumed the lease of the Liberty Company, he is, of course, bound by the terms of that lease; whereas, if a new verbal lease was given him by the owners, they owed him the duty of keeping the elevator in repair, since there is no claim that he verbally assumed any obligation with regard to the elevator.

The testimony of Grundmann throws no light on the question, but Hugo, the president of the Liberty Company, states that he agreed with Grundmann to turn over the business to him and that he (Grundmann) “was to assume the rent and the operating expenses.” In corroboration of this, we find that either the next day, or shortly thereafter, Hugo and Grundmann called on Trocchiano and told him of this arrangement, and that Trocchiano said, “All right, all right.” As we have.already said, Trocchiano was one of the owners of the building and seems to have represented the other owner, Moses, in all transactions connected with the building.

We find nothing in the record which justifies the belief that there was any intention on the part of any one to cancel the written lease between the owners and Liberty Candy Company, Inc., as tenant and to substitute a new verbal one with Grundmann. On the contrary we are well convinced that all that the parties had in mind was to substitute Grundmann for the Liberty Candy Company, Inc.- It is not disputed that, after Grundmann was injured, the Liberty Company was compelled to commence payments of rent for the fourth floor, in spite of the fact that they were losing money and wanted to discontinue. It is certain that, if they felt that the owners of the building had given Grundmann a new lease and had canceled their lease, they would have refused to pay rent after Grundmann’s injury prevented him from continuing in the use of the premises.

As to the question of the responsibility or obligation placed upon a subtenant by stipulations in the lease between the landlord and main tenant, we find the case of Klein vs. Young, 163 La. 59, 111 So. 495, 496, interesting, but not applicable here. That case is authority for the proposition that the “owner of building cannot, by contract with lessee, escape responsibility for obligation arising ex delicto to one renting a room from lessee, and injured when stairs gave way, under Civ. Code, arts. 670, 2315, and 2322, creating liability in damages for injuries to others, resulting from owner’s neglect to keep building in repair, articles 2693-2695 being inapplicable.” But that is not the situation here, for Grundmann in effect assumed the lease of the Liberty Candy Company as a whole and stepped into the legal shoes which had previously been occupied by that company, and thus became bound by the provisions of that company’s lease.

“The transferee of a lease is liable to the same obligations as the original lessee. By acquiring the rights of the lessee, he incurs his responsibility.” Briede vs. McClellan, Orleans App., No. 7999 (see Southern Reporter Digest.)
“Assignee of lease has no greater rights than assignor.” Gottlieb vs. Schloss, 5 La. App. 379.

■ Though, of course, a landlord may not, through his contract with his tenant, avoid his liability to third persons lawfully in the premises, nevertheless it is well settled that he may do so by contract, so far as his obligation to the main tenant is concerned. The case of Klein vs. Young, supra, relied on by plaintiff, is authority for this proposition, as is evidenced by the following quotation from the decision in that case:

“The lessee may, of course, as a condition of the contract of lease, dispense with the implied warranty in his favor, under articles 2693-2695, in which event, of course, no sublessee can enforce it. But the lessee cannot, by assuming the obligation, absolve the owner of the building from his responsibility to third persons who may be injured in consequence of the owner’s neglect of a duty imposed by law in their favor.”

It is, however, strenuously argued on behalf of plaintiff, Grundmann, that he did not lease the fourth floor from the owners of the building, nor was he occupying that floor as substitute for the Liberty Candy Company, but that he had leased it from the Crescent Candy Company, Inc., and that that company was the tenant of the whole building and that the owners of the building are liable to him under the codal provisions mentioned, and that the Crescent Candy Company, Inc., is also liable to him as his landlord.

He bases this claim that he was leasing from the Crescent Candy Company, Inc., almost exclusively on a plea of judicial estoppel. This plea results from the fact that some four months after the accident, in a suit on an open account brought by Grundmann (under the trade-name “Merchants’ Candy Company’’) against Crescent Candy Company, Inc., that company, in its answer, among other items which it claimed as set-offs, alleged that Grundmann (Merchants’ Candy Company) was indebted to it in the sum of $25 for rent and that the judgment rendered in that suit recognized and took into account this claim for rent.

As we have already shown, the true fact was that the Crescent Candy Company, Inc., had no rights whatever in and to the fourth floor, and manifestly could not, and in fact did not, transmit any rights in the use of that floor to Grundmann, and his sole rights came from his agreement with the Liberty Company, which was assented to by the owners of the building.

No doubt he honestly thought he had dealt with the Crescent Candy Company, Inc., with reference to that floor, but if he did, his error resulted from the fact that Trocchiano, one of the owners of the building, and who also acted for the other owner, was also an officer of the Crescent Candy Company, Inc., and the verbal acceptance of Grundmann as the substitute tenant for the Liberty Company was given by Trocchiano while all of them were in the office of the Crescent Candy Company.

Since, then, the true fact is that the Crescent Candy Company was not Grund: mann’s landlord, the sole question for our consideration is whether or not the plea in the other suit to which we have referred created an estoppel which, in law, may not yield to proof of the truth.

For many years the jurisprudence of this state on the effect of a judicial allegation was in a rather unsettled state. Many decisions held that such an allegation created an insurmountable obstacle in the path of him who had made it and prevented him from introducing evidence as to the true fact, regardless of whether or not the party relying on the plea of estoppel had been misled to his detriment by the allegation in question. Many other decisions, on the contrary, held that a judicial allegation creates a presumption but that this presumption may be overcome by proof of the true fact, unless the other party was misled by the first allegation and suffered injury as a result, or was led into a false position; in other words, that the judicial allegation in itself does not create a complete estoppel, unless there is in the situation the element of an equitable estoppel as well. Which of the two lines of cases is based on the more sound reasoning, we are no longer privileged to consider, because our Supreme Court, in a decision in which Mr. Justice Provosty reviewed almost every Louisiana case involving judicial estoppel, has adopted the latter view and has said that, unless the elements of an equitable estoppel are present, proof of the truth will overcome a prior judicial allegation. Farley vs. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122, 137, L. R. A. 1915A, 200, Ann. Cas. 1915C, 717. In that case the court said:

“At common law the point has never been doubtful; the rule has always been that while admissions made in other suits are of course evidence, as being declarations against interest, and therefore, presumably true, they are no. more conclusive, or estoppels, than admissions made out of courts.’’

And, after an exhaustive discussion of the whole question, announced its conclusion as follows:

“Our conclusion is that Weaver and Johnson, the warrantors, are not concluded by the allegations made in this former suit, which have in no way been acted on by plaintiffs, or in any way prejudiced them, and therefore do not give rise to any estoppel.”

There then remains a consideration of whether Grundmann was harmed by the allegation made by the Crescent Candy Company, Inc., in its answer in the other suit. Grundmann admitted that he owed somebody the rent. No one else has attempted to collect it from him, and the only parties who, under the contentions of any one, could have claimed it, the Crescent Candy Company or the owners of the building, have introduced evidence to show that, though it was collected by the Crescent Candy Company, it was turned over to Troechiano as the representative of himself and the other owner of the building. A party is not prejudiced or harmed if he pays to the wrong person something he admits he owes, if the person to whom he pays it turns it over to the right party and that party admits receiving it, and the obligation is canceled thereby.

So far as the rights of the parties in the suit now before us are concerned, they came into existence, if they exist at all, at the time of the happening of the accident, and nothing that any of them may have said or done, judicially or otherwise, four months after the accident and in another suit, could affect the rights resulting from that accident.

Then, too, the allegation that rent was due for one month was not specific, in that it did not state that the rent was due for the month of February, which was the month in which the accident took place, and while we are of the opinion that, in all probability, it was rent for that month which was referred to, we doubt that we could sustain an estoppel based on such an indefinite allegation, even if we felt differently about the legal question, which, so far as we are concerned, was settled by the Supreme Court in Farley vs. Frost-Johnson Lumber Co., supra.

Of course, the allegation in the other suit has evidentiary value and if the remainder of the record left us in doubt as to who was Grundmann’s immediate landlord, that allegation might be sufficient to cause the evidence to preponderate, but except for that allegation and for Grundmann’s unfounded belief as to who was his landlord, the proof is entirely the other way.

Plaintiff’s contention that the Crescent Company, having, in its lease from the owners of the building, assumed responsibility for the condition of the elevator and having agreed to maintain it in good condition, is thus rendered liable directly to him, is not, in our judgment, sound. This stipulation in the lease was nothing more than an indemnity agreement in favor of the landlord. It did not run in favor of third parties and did not create in any third party a direct obligation. In Allen & Currey Mfg. Co. vs. Shreveport Waterworks Co., 113 La. 1111, 37 So. 980, 987, 68 L. R. A. 650, 104 Am. St. Rep. 525, 2 Ann. Cas. 471, there was involved the question of whether a citizen, whose property was destroyed by fire solely because of insufficient water service, could proceed' directly against the waterworks company which, by contract with the city, had bound itself to furnish the fire department with water. The court held that no such right existed. In doing so it expressly overruled an earlier case, Planters’ Oil Mill Co. vs. Monroe, 52 La. 1243, 27 So. 684; Id., 108 La. 236, 32 So. 376. If, in a case involving the rights which citizens claim they are entitled to through the city, such rights as are here claimed were denied, it can hardly be said that a private individual is entitled to direct rights as a result of such a stipulation as is contained in the contract here between other parties. It is not a stipulation pour autrui.

As the court said in the Allen & Currey case, supra:

“We conclude that the engagement of the defendant company to the • city of Shreveport to furnish water to her for the use of her fire department was not a stipulation pour autrui.
“We have discussed the case thus far as if the question it involves were res nova; but the exact question has been decided repeatedly in other jurisdictions, and once already by this court. Upon the latter decision — Planters’ Oil Mill v. Monroe, 52 La. Ann. 1243, 27 So. 684 — the plaintiffs place much reliance. But for the reasons hereinabove given, we are not satisfied with ■the conclusion there reached, and we have concluded to overrule it. By so doing we take this court from among a slender minority, and range it among the very large majority of the courts of the country which have had occasion to consider this question.”

But if it did create a direct obligation in favor of a third party, Grundmann, as we have said, was in no sense such a third party, because the lease which he himself assumed (that of the Liberty Candy Company, Inc.) contained the same stipulation. Therefore the Crescent Company was no' more responsible to third parties than he was himself.

If he did not know that the lease which he assumed contained such a stipulation, he has no one but himself to blame because he must have known that the Liberty Candy Company, Inc., had a lease, and it was his duty to investigate and find out what were the terms of that lease.

Trocchiano, one of the owners of the building, did not appeal, and the judgment is, of course, final as to him. Plaintiff has answered the. appeal of the other two defendants and has asked that the amount awarded below be increased. Since we are of the opinion that the judgment in plaintiff’s favor should be reversed, it is, of course, not necessary for us to discuss the quantum, because, as to the other defendant, the judgment is final.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of Walter B. Moses and Crescent Candy Company, Inc., and against plaintiff, dismissing plaintiff’s suit at his cost.

WESTERFIELD, J. (dissenting).

Generally speaking, the owner of a building is responsible for personal injuries caused by its defects. The Liberty Candy Company, a tenant of the space occupied by Grundmann, had,, under a written lease, assumed the owner’s responsibility for injuries which might be caused by a defective condition .of the elevator. It, at all times, claimed to be the tenant of this space .and even sued Grundmann for rent and collected it. The contention that Grundmann verbally assumed the lease is not sustained by proof of his mere occupancy of the space. Moreover, this issue is not raised by the pleadings and if fairly before the court, at this time, was evidently an afterthought.

Finding myself unable to agree with my colleagues, I respectfully dissent.

ON REHEARING

BOATNER, Judge

ad hoc. A rehearing was allowed in this case because of the plaintiff’s assertion in his application for rehearing that there is nothing in the record to support the court’s findings in its original opinion that there was a lease in writing from the owners to the Liberty Candy Company, which contained the same stipulation with regard to elevators as did that of the Crescent Candy Company, and that the plaintiff assumed the lease of the Liberty Candy Company.

Re-examination of the record discloses that the plaintiff’s complaint is not well founded. It is true that when the transcript of appeal first reached this court it did not include the lease of the Liberty Candy Company; but the lease was produced at the trial in the court below and was offered in evidence there and it is now before us here. It is found to contain the following stipulation: “If there are any elevators, lifts * * * on the premises, the care, maintenance and repairs of same are assumed by lessee, together with all liability or claims for damages”— the same, word for word, as the clause on the same subject in the Crescent Candy Company’s lease made on the same form.

With regard to the character of the agreement under which the plaintiff came into the possession and control of the fourth floor of the building, it was oral, and, as is not unusual, it is not stated with precision by the witnesses who testify about it. But it appears with sufficient distinctness that in December, 1926, about two months before the accident, the plaintiff bought stock in the Liberty Candy Company; that during January, 1927, he became, as he says, at one place a “kind of manager,” or at another a “co-worker,” in its business; that towards the end of January, Hugo, president of the company, becoming hopeless of its success, agreed to turn its plant, supplies of raw material, and business over to plaintiff; and that on February 5, 1927, eighteen days before the accident, the plaintiff went into possession of the place and began carrying on the business for his own account. It is true he testifies he was never shown the Liberty Company’s lease and so does Hugo, but that was because, as Hugo says, “He (Grundmann) understood these conditions” and knew the company had a year’s lease. Considering that he was succeeding the company in its business and taking over its plant, the plaintiff would have been inept and negligent beyond the ordinary if he had not, in one way or another, made himself acquainted with the business he was acquiring; and a thing of first importance, as any man must know, would be the lease under which the place of business was held.

We do not think the record supports the plaintiff’s contention that the effect of his understanding with Hugo was that the Liberty Candy Company made to him a new and independent lease. Plaintiff does not say anywhere that he was to pay rent to the Liberty Candy Company and he made no such payment. In fact, he insists that he took no lease at all from the Liberty Company; it was just a verbal arrangement, he says. The testimony of Hugo in effect is that Grundmann succeeded the Liberty Candy Company as tenant and took responsibility for the rent and operating expenses of the place after January.

The fair result of this was not a new lease from the Liberty Company to the plaintiff, but the assumption by the latter of the former’s existing lease, and it is not inconsistent with this view that, after the plaintiff was incapacitated by his injuries, the Liberty Candy Company paid the rent, for, of course, it remained bound on its lease, unless discharged by the lessor, and that was not done.

Plaintiff argues that in any event there is no written evidence of his assumption of the lease, and that under Civil Code, art. 2278, it can be proved in no other manner.

That article forbids the reception of parol to prove the promise to pay the debt of a third person.

As we have seen, the facts here are that the plaintiff acquired the business of the Liberty Candy Company, with its stock of raw materials, took possession of the place which it held under lease, and was carrying on the business for his own account in the leased premises.

Leases are not required to be made or accepted in writing, nor are transfers of leases. May one accept the transfer of a lease, and enter in the enjoyment of the rights which it confers, while escaping its obligations, if only he omits to execute a writing? Applying the article of the Code to the facts of this case, may one himself obligated, though only by parol, to keep an elevator in repair, hold some other responsible to him for his injuries caused by lack. of repair of the elevator? Obviously the article has no application.

The original decree is reinstated.

Original decree reinstated.

WESTERFIELD, J., dissents.

HIGGINS, J., takes no part.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,107
    Orleans
    SONTHEIMER v. SEGRETTO
    (April 21, 1930. Opinion and Decree.)
    Thomas Tomeny, of New Orleans, attorney for plaintiff, appellant.

      Wm. X Guste, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff sues for $264.70, claimed as the amount of damage sustained by his automobile when he was forced by the negligence of the driver of defendant to run it into the neutral ground curb, and a light post situated thereon in order to avoid running it into the wagon owned by defendant and driven by his employee.

The wagon owned by defendant had turned into St. Charles avenue at Sixth street, and had proceeded down the avenue almost to the corner of Conery, which is one block below Sixth, when the accident occurred. Plaintiff claims that he was driving down the avenue, and that, just before he reached the corner of Sixth street, the wagon, suddenly and without warning or signal, turned to the left into his path, and that, in an effort to avoid striking it, he drove his car upon the neutral ground and ran into the post, with the resulting damage to which we have referred.

Only a question of fact is involved, and the testimony is conflicting, but it convinces us that the wagon was in front of plaintiff’s car, and had been there for several seconds before he noticed it. His failure to see it might have been due to the fact that alongside him was an automobile driven by a lady with whom he was acquainted and to whom he had spoken as he passed by. Whatever may have been the cause of his inattention, we are certain the accident resulted from this inattention and not from carelessness on the part of the driver of the wagon.

For these reasons we feel that the trial judge was correct, and it is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is affirmed.


text:
    No. 13,272
    Orleans
    NEWS PUBLISHING CO. v. S. B. BARRETT RUBBER CO., INC.
    (April 21, 1930. Opinion and Decree.)

      Herman L. Midlo, of New Orleans, attorney for plaintiff, appellee.
    Julius Howard Wiener and Sidney G. Roos, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This is a suit for a balance claimed to be due on a contract for advertising. The contract was dated November 4, 1927, and that part which we are called on to interpret reads as follows:

“I hereby authorize the News Publishing Company to publish for us in the Daily Journal of Commerce, beginning with the issue of November 7, 1927 and to continue for a period of twelve months and until thirty (30) days’ written notice to discontinue is given by either party. * * *”

On January 28, 1928, or about a little more than two months and a half after the contract had been in existence, defendants addressed to plaintiffs a letter reading as follows :

“We make reference to our advertising contract with yourselves and we wish to advise that the present business conditions do not warrant our carrying this contract expense any longer and we wish to request cancellation of this contract.
“Please discontinue our ad in your paper immediately and invoice us at once for the amount we are due for advertising to date.
“We regret very much that this action has been made necessary, and remain.’’

Plaintiffs refused to cancel the contract, continued to publish the advertisements, and have now brought suit for the balance of $267, which they claim to be due.

The defense is that under the contract defendants were given the right to cancel it at any time on thirty days’ written notice. It is argued that the contract is ambiguous, in that there is a possible conflict between the provision that it is to continue for twelve months and the words immediately following, “and until thirty days’ written notice to discontinue is given by either party.” Defendants maintain that, if there is an ambiguity, inasmuch as the contract was prepared by plaintiffs, the uncertainty should be resolved in favor of defendants. There is no doubt of the soundness of this principle of law, and, if we felt that there was any conflict between the provisions to which we have referred, we would be forced to relieve defendants of any obligation to pay for the advertising. But the law is very plain that a contract should be interpreted as a whole, and that that interpretation should be accepted which will give effect to each part thereof. With this in view we cannot avoid reaching the conclusion that the contract meant that in all events it should exist for twelve months, but that thereafter it should continue to exist until thirty days’ written notice had been given.

Defendant also claims that, even if there is liability, it should not be held for the full amount of the claim, for the reason that plaintiff should have minimized the loss by discontinuing the advertisement,' and should then have sued, not for the whole contract price, but merely for the amount of the loss sustained. We do not think that the principle contended for is applicable to suits of this kind, and, furthermore, we are quite convinced that, even if it is applicable, the burden of proof is on defendants to affirmatively show that the loss might have been minimized and to what extent this result could have been accomplished. The record is silent on this point.

For the reasons given, we are of opinion that the trial court was correct, and the judgment appealed from is affirmed.


author: HIGGINS, J.

text:
    No. 13,274
    Orleans
    RAPPELET v. PROGRESS GROCERY CO., INC.
    (April 21, 1930. Opinion and Decree.)
    Thomas Tomeny, of New Orleans, attorney for plaintiff, appellee.
    St. Clair Adams and St. Clair Adams, Jr., of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit for property damages resulting from an automobile collision at the intersection of Kerlerec and Burgundy streets in the city of New Orleans on July 31, 1929, at about 4 o’clock p. m. The charges of negligence against defendant are that plaintiff had traversed the intersection, when the defendant’s truck, operated in a reckless and careless manner and at a rate of speed in excess of thirty miles an hour, ran into the right rear side of plaintiff’s Pontiac sedan, causing the alleged damages.

The defendant filed a general denial, and averred that the plaintiff was solely at fault in causing the accident through the operation of his car at a rate of speed in excess of the limit fixed by th.e traffic ordinance of New Orleans, and also in failing to stop at the intersection in violation of the ordinance, and that Burgundy street is a right of way street under the traffic ordinance. Defendant also .reconvened for damages alleged to have "been sustained by his truck.

^There was judgment in favor of-plaintiff as prayed for, and the reconventional demand was denied. Defendant has appealed.

The record shows that Kerlerec - street runs- from- the direction of the river to the lake, and is intersected by Burgundy street, which runs from Esplanade avenue toward the Industrial Canal, at right angles. Plaintiff was driving his Pontiac sedan, with a passenger in the car, on Kerlerec street toward the river. When a short distance from Burgundy street, he sounded his horn and reduced his speed to about five miles an hour in obedience to a stop signal about fifty feet from the intersection. He then proceeded across the intersection at a slow rate of speed. The defendant’s truck was being driven on Burgundy street tow.ards the Industrial Canal, and the collision took place. by the left front wheel and fender of the truck striking the right rear side of the sedan near the rear door.

There is a building on the lake, uptown corner of the intersection which prevented each driver from seeing the other’s car until they were very near the corner. The driver of defendant’s truck testifies that he was running about fifteen miles an hour, and that his brakes were in perfect working order, as they had just been repaired; that he saw plaintiff’s car when he was about fifteen feet from it, and immediately applied his brakes and tried to turn into Kerlerec street in the direction of the river, when the left front side of the truck struck the plaintiff’s car on the right rear side. He further testified that he skidded about fifteen feet, and that the pavement was dry. He also testified:

“Q. Where was the front end of his (plaintiff’s) car at the time of the accident?
“A. His car was all the way over the intersection, he was five feet past the intersection.
“Q. And you were going very slowly?
“A. Yes.
“Q. What prevented you from going around the rear of Mr. Rappelet’s car?
“A. He was on the other side of the street going over and I thought he would turn or stop. I applied my brakes and turned into Kerlerec. I could not pass as he came along Kerlerec as I was turning.”

As the driver of defendant’s truck admits he saw the plaintiff’s car when about fifteen feet away from it, and says that he was running very slowly, that his brakes were in perfect condition, and that plaintiff’s car had crossed the intersection, we are convinced that the driver of the truck was guilty of negligence, which was the proximate cause of the accident, in failing to stop or in failing to pass to the rear of plaintiff’s car. He had the last clear chance of avoiding the accident, and failed to do so.

While it is true Burgundy street is a right of way street, plaintiff’s car having entered the intersection first, and, in fact, had almost negotiated the crossing, defendant’s driver should have permitted it to proceed.

“Whatever may have been the negligence of the party injured the defendant is liable if he might have avoided the accident by the exercise of ordinary caution.” Da Ponte vs. Uzzo, 5 La. App. 105.
“Where two automobiles approach an intersection at a right angle, and one of them nearly completes the crossing before the other arrives at the intersection, the one which almost traverses the intersecting street is entitled to proceed notwithstanding the fact that the other car had the right of way.
“The right of way established by Municipal Ordinance in favor of vehicles using certain streets is not an exclusive privilege, and it must be exercised with due regard to the right of other vehicles to use the intersecting streets.” Vance vs. Poree, 5 La. App. 109.

See, also, Hirsch vs. Ashford, 5 La. App. 290; Marshall vs. Freeman, 10 La. App. 12, 120 So. 414; Brevard vs. N. O. Transfer Co., Inc., 10 La. App. 772, 123 So. 187; Griffin vs. Chalmette Laundry & Dry Cleaning Co., Ltd., 8 La. App. 146; Smyth vs. Hill Stores, Inc., 8 La. App. 246.

Plaintiff’s car was a Pontiac sedan, four months old, and the testimony shows that the damages were sustained as a result of the accident, and that the estimates for its repair are reasonable.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 13,392
    Orleans
    SUCCESSION OF FRANKLIN ET AL.
    (April 21, 1930. Opinion and Decree.)
    H. W. Robinson, of New Orleans, attorney for H. J. Franklin, administrator, appellant.

    Daly & Hamlin, of New Orleans, attorneys for Mrs. Emily Marr Franklin, appellee.
   HIGGINS, J.

This matter comes before the court on a rule filed by the administrator against the widow of the deceased by second marriage to show cause why she should not surrender to him certain property belonging to the succession, alleged to be in her possession, or pay the value thereof, and which property is described in the inventory as follows: Sugar, fruit jars, syrup, etc., aggregating in value $163.17; bedroom suite valued at $200; living room suite valued at $100; certain other minor articles of furniture; two diamond rings and one diamond bar pin appraised at $275.

In the defendant’s return to the rul,e she averred that the sugar, fruit jars, syrup, etc., were used in operating the deceased’s business of manufacturing soft drinks for the period of September 17th through September 21st, 1929, and that the different items of furniture and jewelry were her separate property.

There was judgment in favor of the plaintiff in rule against the defendant in rule for the sum of $163.17, the inventory-value of the sugar, fruit jars, syrup, etc., and there was judgment in favor of the defendant in rule decreeing the furniture and jewelry to be her separate property. Plaintiff in rule has appealed, and defendant in rule answered the appeal, asking that the rule be dismissed.

The record shows that the deceased had been married twice, first to Laura Myatt, who died intestate in the city of New Orleans, October 21, 1927, leaving as her sole and forced heir, issue of the marriage, a son, Louis B. Franklin, Jr.; that he was secondly married on June 2, 1928, to Emily Marr, who survived him, and that there was no issue born of the marriage; that the deceased, Louis B. Franklin, Sr., died intestate in the city of New Orleans on September 15, 1929, and that there was property belonging to the community of acquets and gains which existed between deceased and his first wife and also between deceased and his second wife.

The deceased was engaged in the manufacturing of soft drinks. Upon his death on September 15, 1929, his brother, plaintiff in rule, on September 17, 1929, filed an application to be appointed as administrator of the successions of the deceased and of his first wife, and on September 18, 1929, an inventory was taken. The sugar, fruit jars, syrup, etc., were inventoried and appraised at $163.17. The defendant in rule as widow took charge of the soft drink business and continued to manufacture and sell pop, etc., until September 21, 1929, and. used these materials.

On the trial of the rule she was unable to produce these items, because they had been used and the manufactured products sold by her, which she testifies brought about $50 per day from September 17th 'through September 21, 1929. She further testified that she expended the sum of $343 for pay roll and other materials necessary to continue the operation of the business and certain hospital and doctor bills for the last illness of the deceased, as well as $2.50 per day for running the house; that the amount she received from the business would be about $262.50, and therefore she had expended more than she had received.

The judge a quo held that she was operating the business for her own account, and gave judgment against her for the inventory value of these articles or merchandise because she used them without any order of court.

In the case of Tujague vs. Courtiade, 140 La. 779, 73 So. 862, the court held:

“A surviving widow, who opens the bank box of the deceased and converts its contents to her own use, without notice to some of the forced heirs, and without an order of court and inventory, as required by law, places herself in the_ position of a ‘spoliator,’ and as such will be held to a strict accounting.”

In the case of Durham vs. William, 32 La. Ann. 162, it was said:

“The wife’s interest in the community is residuary — one half of what remains after its debts are paid.”

See, also, Kelly vs. Kelly, 131 La. 1024, 60 So. 671; Bister vs. Menge, 21 La. Ann. 216.

In the case of Ervin vs. Shelby’s Heirs, 146 La. 573, 83 So. 835, it was held:

“Where the wife, living under the regime of the community, dies, the property of the community devolves, in indivisión, upon her surviving husband and her heirs; and he has no capacity to alienate the interest of such heirs save under the conditions prescribed by law.”

The defendant in rule as surviving widow was without any legal right to operate the business as a going concern without proper order of court. She is therefore responsible for the value of the articles and merchandise used and sold, and the judgment against her for their value is correct.

However, it appears that she paid certain preferred claims resulting from the last illness of the deceased, and has claimed $2.50 a day for her maintenance under article 2422 of the Revised Civil Code. Whatever rights she may have by way of subrogation to the preferred claims which she paid is expressly reserved to her against the estate. Any right she may have for maintenance under article 2422-is also expressly reserved to her against the estate.

The judge of the lower court found that the evidence preponderated in favor of the defendant in rule, that the bedroom and living room suites and certain other minor articles of furniture were her separate property, being gifts in consideration of marriage. After a careful reading of the record, we are of the opinion that his finding is correct.

As to the two diamond rings and bar pin, the judge a quo was of the opinion that the evidence established that these were gifts made by the husband to his second wife before and after marriage, and that they were, therefore, her separate property. But, the evidence shows that this jewelry belonged to the community of acquets and gains existing between the deceased and his first wife, and therefore he had title only to an undivided one-half of it and the usufruct on the other undivided one-half thereof. Hence he could only legally dispose of his one-half thereof, and the remaining one-half interest which was vested in his deceased wife’s estate or in his minor son could not be legally disposed of by the deceased.

The usufruct of jewelry by its very nature is a perfect usufruct, because the usufructuary can enjoy it without changing its substance. At the expiration of the usufruct it was the duty of the deceased to restore the jewelry, upon which he had the usufruct, to the owner. Rev. Civ. Code, arts. 533-535.

The usufruct of the deceased ended upon his marriage to his second wife on June 2, 1928. Article 916, Rev. Civ. Code.

We are of the opinion that one-half of the title to the bar pin and two diamond rings belongs to the succession of Mrs. Laura Hyatt Franklin, wife by first marriage of Louis B. Franklin, having belonged to the community of acquets and gains existing between them, and the other one-half of the title belongs to Mrs. Emily Marr Franklin, widow of the deceased, by second marriage, being her separate property as a result of gifts by the deceased before and after her marriage to him.

For the reasons assigned it is ordered, adjudged, and. decreed that the judgment appealed from be and it is amended by reserving to Mrs. Emily Marr, widow by second marriage of Louis B. Franklin, defendant in rule, any and all of her rights of subrogation to any preferred claims which she may have paid on behalf of her deceased husband’s estate, and also any right she may have for maintenance under article 2422 of the Revised Civil Code against his estate.

The judgment is further amended by decreeing that the two diamond rings and diamond bar pin belong to the succession of Laura Hyatt Franklin and Emily Marr Franklin in the proportion of an undivided one-half interest each, and, as thus amended, the judgment is affirmed; appellant to pay all costs. 0


author: DREW, J.

text:
    No. 3679
    Second Circuit
    TAYLOR v. SOUTHERN ENGINEERING CONSTRUCTION CO.
    (January 31, 1930. Opinion and Decree.)
    Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellee.

      Hawthorn. & Stafford and John L. Pitts, of Alexandria, attorneys for defendant, appellant.
   DREW, J.

Plaintiff institutes this suit for compensation under the Employers’ Liability Act (Act No. 20 of 1914, as amended) of Louisiana, claiming to be totally disabled due to an injury received while working for defendant and performing duties necessary to his employment. Defendant denies that plaintiff was injured while in the employ of it, denies that he is disabled, and, if he is disabled, that it was brought about by causes other than those alleged by plaintiff.

Plaintiff prayed for judgment for 65 per cent of his wages for a period of not more than 400 weeks. The lower court rendered judgment for plaintiff for the amount of 32% per cent of his wages for a period of not more than 300 weeks. Defendant appealed, and plaintiff answered the appeal praying that the judgment of the lower court be amended by increasing the amount to the amount sued for, and, as amended, that the judgment be affirmed.

The admitted and uncontradicted facts in the case are: That plaintiff was employed by defendant to work on a pile driver in the construction of a bridge near Pollock, in Grant parish, La., and, while so engaged in said employment and in furtherance of defendant company’s business, and while acting in the scope of his employment, he fell from a piling a distance of from 15 to 25 feet into the water of the stream underneath the bridge. That he fell on his back. That he swam and waded out of said stream and walked a distance of several hundred yards to a tent where he was sleeping. That he took his meals at a house some half mile distant from his sleeping quarters, and that he did not go to supper the night of the injury or to breakfast the next morning. He went to work the next morning after the fall, working all that day and the following day until 4 o’clock in the evening, at which time the entire crew stopped. Plaintiff walked Several miles and rode a freight train a distance of 30 or 40 miles that evening and night, the second day after the .accident, in order to get to his home. He did not go back to work after this, and was confined to his bed, complaining of his back for 2 weeks or more, and partially confined to his bed for a period of 3 or 4 months, and that he had to have help to get in and out of bed and to turn over for a part of that time. That the defendant’s physicians, Drs. Scott and Glass, treated plaintiff for a strained or sprained back about seven days after the accident, and reported to the company that he had a sprained back, and they strapped him up with adhesive tape at that time. They continued to treat him until about March 30, 1928. That the1 accident occurred on January 5, 1928.

Prior to the accident, plaintiff had been engaged in heavy manual labor and had never complained of his back, and since the accident, up to the time of trial — a period of nearly 18 months — the plaintiff, with the exception of the 2 days immediately following the accident, had not worked but 5% days, and he testified that he-felt that he should work, if possible, to help support his four children, and that he secured a job spotting pipe on a pipe line and the work caused him much pain, and after 5% days, he was forced to give up the job, could not stand the pain, and could barely make it home after the last day’s work.

Defendant, acting on the report of its doctors, paid plaintiff compensation from the date of accident up to June 18, 1928, amounting in all to $358.80, and that nothing has been paid since.

The first controversial question of fact is: Did the plaintiff complain of injury to his back immediately after the accident? Defendant argues and relies to a great extent on this fact, urging that he did not complain at the time of the accident and for the two days afterwards, and in the examination of the doctors, urges this as a fact to elicit testimony to negative the idea of the accident causing any disability. Defendant offers the evidence of Roy Hammonds, foreman of defendant company, who testified that he reached plaintiff soon after he had gotten out of the water and asked him if he was hurt, to which he replied, he was not; that the next morning he asked plaintiff if he felt 'any effects of the fall, and he replied he did not, that he was sick with a cold; that plaintiff made no complaint all of the two following days. Doc Butts, a .brother-in-law af Hammonds, also an employee of defendant company, testified that he overheard plaintiff tell Hammonds that he was not hurt; that he saw plaintiff undress soon after the accident and there were no cuts or scratches on the back of plaintiff. Testimony of Robert Weaver, an employee of defendant, was offered by defendant. Weaver testified that he talked to plaintiff soon after the accident and asked him. where he was hurt. Plaintiff replied he was sore around the back. Another place in his testimony he was asked the following questions:

“Q. Did any one ask Taylor where he was hurt?
“A. Yes.
“Q. Did Taylor complain ,of being hurt, or mention being hurt or injured? What did he say about being hurt?
“A. tie never said anything only that his back bothered him a little.”

This defense witness is in direct conflict with the testimony of defense witnesses Hammonds and Butts; however, he does corroborate them!, about plaintiff not complaining while at work the following two days.

Plaintiff denies talking to Hammonds and Butts, and testifies that the witness W. C. Ford, was first to reach him after the accident, that he told Ford he was hurt, and that Ford ran ahead of him to the tent and made a fire and got out some dry clothes for plaintiff. Witness W. C. Ford corroborates plaintiff in every respect. He is entirely a disinterested witness, an employee of the; highway commission, having no connection with either plaintiff or defendant. He testified that he was present when plaintiff got out of the water, that he heard plaintiff say he was hurt, and saw him walking slowly and bent over, and from this concluded that he was injured.

Plaintiff testified that on the evening he was trying to get home, January 7, 1928, he was hurt and tried to get some one to carry him home in a car, but did not succeed; that, on the way to Antoine, where he caught the freight train, he stopped at Mr. P. D. Allen’s house and tried to get him to carry him, stating to Mr. Allen that he had been hurt. This testimony is corroborated by Mr. Allen and another witness, B. Price.

The testimony of W. C. Ford, Robert Weaver, the plaintiff, P. D. Allen, and B. Price, coupled with the fact that plaintiff, a man who was engaged in manual labor all day, not going to his supper on the evening he was injured nor his breakfast the next morning, and tho undisputed fact that he was confined to his bed for some time after the accident, the testimony of Drs. Scott and Glass, of the defendant company, that plaintiff had a sprained or strained back when they examined him at the company’s request 9 days after the accident and the report made by these doctors to the insurance company, of date January 16, 1928, wherein they say the injury was probably a sacroiliac strain, and in reply to question, “Are symptoms due entirely to injury?” they answer “Yes,” and the fact that' plaintiff never had complained of his back before the accident, all convinces the court, not only that plaintiff complained of the injury received immediately after the accident, but is also convincing that the fall received by plaintiff did injure him, as alleged, and that he was totally incapacitated for work such as he was accustomed to do and the only kind of work he was competent to perform.

Having determined that the plaintiff was injured, as alleged, and that he was, at that time, totally disabled, within the meaning of the Employers’ Liability Act, the only remaining question for determination is: Was the plaintiff, at the time of the trial in the lower court, still totally disabled, or partially disabled, or had he recovered . from his injury, and, if so, when.

Ten doctors testified in the case, and we will discuss their testimony in the order in which it appears in the record.

Dr. Rand examined the plaintiff on two different occasions, and says his conclusion at the first as well as at the second examination was that he had a definite sacroiliac strain, and that it would have been remarkable for plaintiff to have described the symptoms if they had not been there; that an X-ray picture would not necessarily show the injury of plaintiff, due to the peculiar, irregular shaped joint, the plane between the sacrum and ileum not being a straight surface, but curved; that he had patients where the X-ray showed normal condition and yet there was an injury to the sacroiliac joint, strain in that region; that plaintiff was slightly stooped from waist down when he saw him, had pain, and showed inability to handle himself readily, and his functions were impaired. One of his' examinations was in November, 1928.

Dr. M. Cappel, now deceased, made two examinations of plaintiff, one on January 19, 1929, and the other on June 20,; 1929. He testified that one can sustain a severe injury to the muscles, ligaments, and nerves of the back, which injuries will not show up1 in an X-ray picture, that the X-ray picture of plaintiff showed abnormal formation of the sixth lumbar vetebra, and that such a back was more susceptible to injury than a normal back, and that it is possible not; to have a severe pain immediately following an accident such as plaintiff sustained. He is positive that plaintiff has a sacroiliac sprain. He says that he has two cases now where the patients have been disabled for about two years, where the X-ray did not show anything, and a recent case where the X-ray does not show anything, that plaintiff is not suffering from bad tonsils or bad teeth, and that he has a disability, and that it impairs his functions and produces pain in the effort to do ordinary manual labor, and that such a strain or sprain as plaintiff has may not be as painful when first inflicted as it becomes later.

Dr. J. I. Peters, who examined the plaintiff for the insurance company, made two examinations, one in January, 1929, and the other in June, 1929, is the best expert witness for the defendant. He was assisted in the last examination by Dr. D. C. McBride. He says that on his first examination he found nothing the matter with plaintiff; that he put plaintiff through all manner of exercises, and that plaintiff was not impaired in his functions; that he did not ask plaintiff if the examination caused him any pain; and that, from his examinations and the reports of other inspectors he was led to believe that plaintiff was faking injury. As to his second examination, made with Dr. McBride, he says:

“We found no evidence of injury, by the X-ray, which was the basis of our conclusion in the matter. We did find, however, that he complained of stiffness in the back. We also found diseased tonsils and teeth. It is our impression there is a direct connection between the tonsils and teeth and the condition of plaintiff’s back; that it is a contributing factor, at least. That he complained of pain in his back; came here with pain in his back, but exercised all the functions without showing signs of pain more than the constant backache which he had all the time.
“Q. I will ask you, then, if he was suffering from pain, what was the cause of it?
“A. I think it was lumbago; plainly lumbago, due to other pathological causes quite as much, if not more, than the alleged injury; and I base this answer on the X-ray report showing an anomaly of the spine, which he was born with, together with the fact that he has sources of septic absorption which could easily1 produce this, and we are not able to base the interpretation of the finding of the symptoms' on the examination that we made with the X-ray.”

He says the X-ray would not show the condition of ligaments or tendons. He further testified that he would not say it is impossible for a patient to. suffer a severe sprain of the sacroiliac joint sufficiently to incapacitate him without there being some bony injury or some .separation of bony relations or some callous formation from the bony injury later on that would show in the X-ray picture, but that he would say it was improbable for such an injury to exist without there being some of them, enough to base a reasonable interpretation of the injury on.

The plaintiff moved a lot more languidly, with apparent stiffness, and complained of pain more, at the second examination than at the first, that his diagnosis was lumbago, and that the sacroiliac joint is the favorite seat for lumbago.

Dr. McBride, who assisted Dr. Peters in his last examination, says: Examination of back showed that he had some stiffness in the lumbar sacro spine or lower part of the back. Also he complained of pain over the sacroiliac region and crest of ileum. Examination of extremities showed some difficulty in completely flexing or extending thighs of his own accord; he was limited in flexion and extension and rotation of his spine. I believe this was due to absorption from some source of infection in his body; usually in these cases it is the teeth or tonsils; that plaintiff’s teeth and tonsils could cause his complaint. He found no evidence of injury, although he could have had this sprain immediately after falling. He concludes plaintiff was suffering from some’ impairment of sacroiliac region, and he surely had some pain. He further testified:

That “it is possible after receiving the injury to have foci infection, or an infection in some other part of the body to cause trouble.”
“Q. Do I understand that this fall might have started the trouble brewing?
“A. It is possible for it to contribute to it; yes.
“I think the condition of his teeth and tonsils probably has made his point of injury more painful; that is possible; however, the anomalous condition of his vertebra may have also exaggerated conditions. Having anomalous vetebra, weak back, and having sustained this fall, would at least contribute to any present disability that he is now suffering. The fall may have been the beginning of his trouble, which the points of infection have continued to cause pain and his present trouble.
“Q. Is it your opinion, doctor, that he is a normal man at this time, able to do hard manual labor?
“A. I think he could, after his tonsils and teeth are removed.
“Q. I mean at this time, doctor?
“A. No; probably not.”

He further testified that it is probable the injury has had something to do with the present condition of plaintiff, and that any point that is injured, especially joints, tend to be subject to irritation, to be points of infection throughout the body. Finally, he was asked the following question:

“Q. Doctor, isn’t it your opinion that this man has long since gotten over any injury or disability that he might have suffered from the fall? .
“A. It is; excepting the possibility of his fall predisposing to his present condition.”

Dr. L. A. Myers, the radiologist who made the pictures in this case, testified that a sprain ■ is a traumatic injury of the ligaments that is not shown by an X-ray picture, unless it left a widening of some joint or definite injury to the bony frame work; that plaintiff’s back, being abnormal, would be' weaker than a normal back. He was asked the following question:

“Q. Basing your opinion on the picture, do you think the man suffered severe sprain at any recent date?
“A. I da not believe I could be able to answer that.”

Dr. Earl Jones testified that plaintiff is suffering from a sprain of the sacroiliac joint and will suffer disability all his life; that he is incapacitated to do manual labor, and that his injury resulted from the fall; that an X-ray picture is not a satisfactory basis for diagnosing a trouble such as he found plaintiff suffering from; and that an injury such as plaintiff received would not cause much pain for 2 or 3 days.

Dr. J. W. Scott testified that he would not expect any pain from such a fall as plaintiff got before 6 or 8 hours after; that he diagnosed plaintiff’s case as a strain or sprain of the back, and treated him for it. Saw him once or twice a week for 2 or 3 months, and discharged him as well.

Dr. Woodall testified that plaintiff is undoubtedly suffering from a severe sprain in both sacroiliac joints; that he is not able to do manual labor and will not be for 2 or 3 years, and possibly not for life; that his teeth and tonsils are not the cause of his trouble; and that these kinds of sprains very often do not show up at their worst for 24 or 36 hours and would not cause much pain for several days.

Dr. Woodall examined plaintiff the morning of the day of the trial, and Dr. Jones examined him a short while before the trial.

Dr. Jones also testified that plaintiff’s teeth and tonsils were not the cause of his trouble.

Almost without exception all the doctors testify that the plaintiff was suffering with his back, and place the pain at least in the region of the sacroiliac joint, and all the positive testimony is that he could not do manual labor or would feel great pain in performing such labor; and it therefore follows that plaintiff has met the burden that is upon him of proving his case with a preponderance of evidence.

While Drs. Peters and McBride contend that plaintiff’s trouble is due to his infected teeth and tonsils, they are not willing to say that the injury received by the plaintiff at the time of. the fall was not a contributing factor to his present condition.

“The compensation paid injured workmen under the compensation statute is based upon ’disability .and it is immaterial whether the injury alone, or in conjunction with a latent systemic infection, caused the disability.” Womack vs. New Orleans Public Service, Inc., 5 La. App. 71.

Dr. Peters and Dr. Myers, and other doctors who testified for the defense, say that a sprain as severe as the one claimed by plaintiff will almost always cause a widening of the bony relation or other bone injury that will be shown by an X-ray picture, and the testimony of Dr. Cappel and other doctors, who testified for the plaintiff, is that such is not the case, and cite numerous cases they have treated in which the injury to the sacroiliac joint was so severe as to cause total disability for several years, in which the X-ray did not show anything. Dr. Peters bases his conclusion almost entirely on the X-ray picture, as does Dr. Myers. But positive testimony will prevail over riegative. Consequently, when a doctor, testifying as a medical expert, gives his professional opinion to the effect that a sprain of the sacroiliac joint, severe enough to cause total disability, will not necessarily cause a widening of the bony relations or other bone injury sufficient to show up in the X-ray picture, and declares that he is treating numerous cases of that kind at present in which nothing was shown by the picture, his testimony must prevail over that of another medical expert who expresses the opinion that a sprain to the sacroiliac joint severe enough to cause disability will always show up in the X-ray picture. Womack vs. New Orleans Public Service, Inc., supra.

Counsel for defendant cite numerous decisions of this court in support of their defense, and we have reviewed each of them carefully, and find that they are each distinguished from this case, in that the facts are different.

The plaintiff in this case'is shown to be a man of the average ability and learning of his country; that he has never performed any work other than manual labor; and that he is totally disabled for such work. He therefore will come under the total disability clause of the Compensation Law. Hawthorn vs. Hillyer-Deutach-Edwards, Inc., 9 La. App. 660, 119 So. 772.

Plaintiff was earning a wage of $24 per week at the time of injury, and 65 per cent of his wages would be $15.60 per week, which amount he is entitled to recover for not more than 400 weeks, subject to a credit of $358.80 previously paid to him by defendant.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended by increasing the amount therein allowed plaintiff from $7.80 per week during disability, for not more than 300 weeks, to $15.60 per week, during disability, for not more than 400 weeks, subject to a credit of $358.80, and, as thus amended, the judgment of the lower court is affirmed; defendant and appellant to pay all costs of both courts.


text:
    No. 3669
    Second Circuit
    PRICE v. FLORSHEIM
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)

      Galloway & Johnson, R. G. Pleasant, of Shreveport, attorneys for plaintiff, appellee.
    C.oofc & Cook and C. D. Egan, of Shreve- ■ port, attorneys for defendant, appellant.
   DREW, J.

This is an action to recover damages for personal injuries sustained by the plaintiff, a young negro woman. On February 1, 1928, she leased from the defendant the premises at 1706 Hotchkiss street, in Shreveport, La. On February 3d following* while lawfully in the premises, the term of the lease having begun to run, the plaintiff, while engaged in cleaning an upstairs porch, placed her hand on one of the railings supporting the banisters of the porch, while in the act of picking something up from the floor, and when she did so the railing suddenly tore loose from thA post, thus causing plaintiff to lose her •balance, and she was precipitated to the ground below, a distance of approximately twelve feet, falling on her side and abdomen, and sustaining serious bodily injuries.

Plaintiff alleges that the accident was caused by the decayed and rotten condition of the post, railing, and banisters on said porch; that she did not know of their decayed condition, due to the fact that the railing was attached to the post on the outside and hidden from her view, and to the fact that the railing, post, and banisters had been painted white, which further covered the decayed condition and prevented her noticing it.

The defense is a general denial, and a plea of contributory negligence on the part of plaintiff in placing her weight against the said railing.

The case was tried before the lower court without a jury, resulting in a judgment for the plaintiff in the sum of $4,000. Defendant appealed, and plaintiff has answered the appeal, asking that the judgment be increased to the sum of $15,000, as originally prayed for.

There is very little conflict in the testimony, and the plaintiff has proved the essential allegations of her petition. It was not the plaintiff’s duty to make any more careful examination of the railing and banisters than she did, under the circumstances. She was not sitting on the railing, but had merely placed her hand on it to balance herself in picking something up from the floor, and the railing should have been strong enough to withstand the weight she applied to it. Outside of ornamental value, the only purpose of banisters is to protect people from falling out, and they should be built and maintained strong enough to accomplish that purpose; otherwise, they are worse than no banisters at all, and might be considered as a trap. Plaintiff was not guilty of any contributory negligence. It was her first day in the house, and she had no knowledge of the condition of the railing and banisters. In this respect the ease is distinguished from that of Parker vs. Kreber, 153 La. 191, 95 So. 601, relied on by defendant.

The law of this state is that the owner is bound to know whether his building is safe for the purposes for which he rents it or authorizes its use, or is rotten or unsafe, and is answerable in damages to those who being lawfully therein are injured by reason of its defects, whether of original construction or caused by failure to make proper repairs. Allain vs. Frigola, 140 La. 982, 74 So. 404; Breen vs. Walters, 150 La. 578, 91 So. 50; Civ. Code, arts. 670, 2322; Davis vs. Hochfelder, 153 La. 183, 95 So. 598; Schoppel vs. Daly, 112 La. 201, 36 So. 322, 325; Lasyone vs. Zenoria Lumber Co., 163 La. 185, 111 So. 670.

This rule of law is so well established in our jurisprudence that it calls for no further discussion.

The defendant is liable in damages for the injuries sustained by plaintiff.

Defendant contends that the suit is an action on contract, and attempts to distinguish it from an action ex delicto. We cannot agree with this contention. It is very similar to the case of Schoppel vs. Daly, supra, in which the court said;

“The action of the plaintiffs is not based exclusively upon article 2695 of the Civil Code, nor upon the existence of the contract of lease referred to, though it and the article of the Code are both incidentally referred to. The action is one ex delicto for personal injuries to the wife.”
“The existence of contractual relations between two parties is no bar to a right of action for a tort committed pending the contract, and connected with it.” Schoppel vs. Daly, supra.
“For breach of contract by means of a tort, the party can bring either an action on contract or in tort.” King vs. N. O. Ry. & Lt. Co., 140 La. 843, 74 So. 168; Illinois Cent. R. R. Co. vs. N. O. Ter. Co., 143 La. 467, 78 So. 738.
“Obligation imposed on owner of building, under Civ. Code, art. 2322, to answer in damages to person injured by neglect of owner to keep building in repair, arises ex delicto.” Klein vs. Young, 163 La. 59, 111 So. 495.
“Right of action, under Civ. Code, art. 2322, against owner of building, for injuries resulting from neglect (of owner) to keep building in repair, is in favor of one injured while lawfully on premises or inside of building, as well as in favor of neighbors and passers-by.” Klein vs. Young, supra.
“For breach of contract without fault or bad faith, only those damages in the contemplation of the parties when making the contract may be recovered, but for a tort all damages resulting directly from the act of negligence may be recovered.” Illinois Cent. R. R. Co. vs. N. O. Terminal Co., supra.

There is a distinction between the rights and obligations which are created by law and those which are created by contract. The obligation of every property owner to answer in damages for a failure to keep his property in such condition of repair that it will not be dangerous to other persons is imposed by law by articles 670, 2315, and 2322 of the Civil Code.

This suit is one arising ex delicto pending the contract and connected with it.

However, under the contract it must have been contemplated that the defendant would observe the law by keeping the house in a state of repair that would not have been dangerous, to the occupants, and the sole cause of the damage is the negligence of the defendant in not fulfilling an obligation imposed by law.

Defendant strenuously urges that the judgment is excessive in amount, and relies on the authority of the decision in the case of Caldwell vs. City of Shreveport, 150 La. 465, 90 So. 763, in asking that the amount be reduced. The court held in that case that the plaintiff was entitled to be compensated for only so much of his affliction as was the result of the accident, and not for injuries proven not to be solely caused by the accident but due to some lurking disease that was in his system at the time of the accident, and could not have been entirely caused by the accident.

Plaintiff is shown to have been operated on for appendicitis when twelve years old, or about nine or ten years before this accident; and that when she was operated on immediately after the accident it was found that she had adhesions, which is shown to be the natural result of almost all operations. There is no doubt, from the testimony of the doctors who attended plaintiff, that the adhesions caused by a former operation added to the trouble and injury of plaintiff, but the testimony of the doctors, in connection with the other testimony, that plaintiff suffered great pain immediately after the fall and was not able to arise from the ground and had to be carried in the house and was immediately taken to a sanitarium and the following day underwent a major operation which was necessary in order to save her life, due to the bowels being paralyzed, and that she was confined to the hospital for two months, was near death many times, and suffered as much as any human being couldj' convinces us that the fall was the cause of her suffering and that the operation was responsible for her inability to perform any work for seven and a half months and of her weakened condition at the time of the trial. Plaintiff lost more than 25 pounds, weighing 128 pounds before the accident and at the time of the trial weighing less than 100 pounds. Since the accident she has not been able to perform the kind of work she previously performed, not able to mop floors or pick up anything of ordinary weight, cannot wash or iron, and, is physically able to perform only the lighter housework and to cook.

It is shown that adhesions are the natural result of most if not all operations, and that sometimes they become so aggravated an operation is necessary, and that others never have to be operated on for adhesions. It is not shown that paralysis of the bowels could not be caused by a fall such as plaintiff received, and in the Caldwell vs. City of Shreveport case it was shown that plaintiff was suffering with locomotor ataxia or tabes dorsalis at the time of the trial, which, according to modern scientific opinion, cannot result from traumatic causes.

Another case relied on by defendant in asking for a decrease in the amount of the judgment is that of O’Neil vs. Morgan’s L. & T. R. R. & S. S. Co., 5 La. App. 94. In that case the plaintiff was suffering with syphillis, a disease which cannot be brought on by traumatic causes.

Dr. Garrett testified as follows, in answers to questions from the court:

“Q. Doctor, what connection, if any, could the fall have had with the condition that you operated on to relieve?
“A. Well, I should say that the fall was the exciting cause. Marguerite already had some post operative adhesions and the fall, I would think, excited what we call the paralytic ileus or paralysis' which loomed up in the intestines. I would say that the fall was the exciting cause to bring on the complete obstruction of the intestines.
“Q. What would you say, doctor, as to whether or not this condition that you operated/ on to relieve, would have arisen at that time whether or not the accident had occurred?
“A. Well, that would be hard for any one to say. We know that people have post operative adhesions and go along for years. Some of them never have to be operated upon and others do. It would be hard for me to make that statement; in fact I could not do it. Of course, I do not know just what would have been.”

The doctor would not say that the operation would have been necessary if she had not received the fall, but does say that the fall was the cause of the paralysis of the bowels, which necessitated the operation. And that the injuries received in the fall was the proximate cause of the damage.

We do not know whether or not the lower court took into consideration the adhesions of plaintiff in arriving at the amount of damages due her. He did not file a written opinion. However, we think the judgment for $4,000 awarded by the lower court is in accord with the decisions of the courts of this state in like accidents and similar injuries, and we see no reason for disturbing it.

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

Cost of appeal to be paid by defendant, appellant.


author: ELLIOTT, J.

text:
    No. 610
    First Circuit
    SECURITY BANK v. NATL. MUTUAL ASSURANCE ASSN. CORINNE WREN DAVIS, Third Opponent
    (March 5, 1930. Opinion and Decree.)
    (May 6, 1930. Rehearing Refused.)

      Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, appellant.
    A. W. Spiller, of Hammond, attorney for opponent, appellee.
   ELLIOTT, J.

Corinne Wren Davis claims as clerk, secretary, and stenographer of National Mutual Assurance Association, a privilege for the payment of her salary, out of the proceeds of 10 shares of Security Homestead Association stock belonging to her employer.

Security Bank obtained a judgment against National Mutual Assurance Association for upwards of $900, caused a writ of fieri facias to issue under which the 10 shares of stock of Security Homestead Association belonging to National Mutual Assurance Association was seized and advertised for sale.

Miss Davis had obtained judgment against National Mutual Assurance Association for '$207 with interest thereon. In her suit she alleges her employment as clerk, secretary, and stenographer, and that a privilege existed in her favor on said shares of stock belonging to her debtor. That she was entitled to be paid out of the proceeds of said stock in the rank of privilege established by the law. She .prayed that same be recognized and enforced. Her privilege was recognized and ordered enforced, as prayed for. She then proceeded against the Security Bank by motion, as provided for by the Code Practice, art. 401 et seq., asserting the' privilege that had been decreed to exist in her favor to be superior in rank to that of the seizing creditor, and her right to be paid out of said proceeds by privilege, with preference over that of the seizing creditor.

Security Bank resists her claim for privilege on two grounds: First, that she does not pray in her motion for the recognition of any privilege in her favor.

Her motion is a summary proceeding under Code Prac. arts. 98 and 754 et seq. It is in the form of an order of the court. In this case the proceeds of the stock were in the hands of the clerk of court; the court’s order was therefore addressed to the clerk of court, and directed him to hold in his hands the amount due the mover until her third opposition had been disposed of. The grounds of the motion was stated articulately, as required by Act No. 27 of 1926, the fourth) averment being:

“That your mover’s said lien and privilege being superior in rank to the claim asserted by plaintiff herein, the same should be paid to her by preference over the said seizing creditor, from the proceeds of the sale of said shares of stock.”

Security Bank took cognizance of her motion and opposition and answered each of the averments therein, admitting same, except the fourth, which it did not answer.

The law, Act No. 27 of 1926, provides that all averments not answered shall be deemed to be admitted. This legal requirement resulting from the bank’s failure to answer said averment establishes both grounds on which Security Bank bases its contest. It is not necessary to pray for the recognition of a privilege which the law provides “shall be deemed to be admitted.”

The second ground of resistance is that National Mutual Assurance Association has not been decreed to be insolvent and no cession of, property has taken place. That insolvency of the debtor or a cession of property are prerequisites to the right to assert a privilege. The defendant, National Mutual Assurance Association, is a corporation. But pretermitting that fact, the debt- or has not been, so far as the record indicates, decreed to be insolvent, nor has a cession of property taken place.

The articles of the Civil Code, 3191, subd. 6, and 3252, subd. 5 (amended Act No. 242 of 1918), which create the privilege of the clerk, secretary, etc., have no conditions attached to them making them dependent on the insolvency of or cession of the debtor’s property. Converse Kennett & Co. vs. Hill & Co., Letchford & Co., Interveners, 14 La. Ann. 89.

Not only that, but the record shows that Miss Davis claimed the privilege in question in her suit against National Mutual Assurance Association, and the judgment rendered recognized its existence in her favor, as prayed for.

On the trial of her opposition the case of Miss Corinne Wren Davis, No. 2624, vs. National Mutual Assurance Association; Security Bank, No. 2510, vs. National Mutual Assurance Association, Corinne Wren Davis, intervener, together with another opposition, were consolidated and tried together. The testimony taken shows that she is entitled to the privilege and preference claimed.

The judgment of the lower court in her favor is correct.

Judgment affirmed. Security Bank to pay the cost in both courts.

LECHE, J., not participating.


author: MOUTON, J. PER CURIAM.

text:
    No. 600
    First Circuit
    POPE v. LOCASCIO, SR., ET AL.
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused.)
    (June 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Rownd & Warner, of Hammond, attorneys for plaintiff, appellee.
    P. M. Milner, of New' Orleans, attorney for defendants, appellants.
   MOUTON, J.

Railroad avenue runs north and south through Hammond, a town in the parish of Tangipahoa, west of and paralleling the tracks of the Illinois Central Railroad Company. Robert street runs east and west through Hammond across the railroad tracks, and intersects the avenue about 50 or 75 feet south of the railroad depot which is situated near the railroad line, and north of Robert street. A building known under the primitive name of Log Cabin is located at the corner on the south side of Robert street where it enters into Railroad avenue.

In May, 1927, a collision occurred at the intersection of Robert street and Railroad avenue between a Nash sedan, Mrs. L. H. Pope, wife of plaintiff, was driving, and a Ford truck which John Locascio, defendant, was driving. The accident occurred about 9 or 10 in the morning, and there is nothing to indicate that anything existed in the weather conditions that could have affected the vision of either Mrs. Pope or John Locascio.

Mrs. Pope was taking her little girls to school, and entered the avenue from Robert street, driving eastward towards the railroad tracks. She says she was driving slowly when she started to cross the avenue, as she expected to stop at the tracks; that when she approached the avenue she looked to the right from which direction there was nothing in “sight,” as she expresses it, and then looked to the left and saw a train standing in front of the depot. She was, at that time, in Railroad avenue, and says she glanced to her right, saw the truck defendant was driving dashing towards her; that she stepped on the gas a little, expecting defendant to slow up and pass behind her car. Instead of slowing up as she expected, she testifies that defendant ran into the side of her car, crushing the running board, bending the rear fender, and imprinting the radiator in the door of the sedan. She testifies that, as defendant approached her, she saw his head was turned, but that she did not suppose he would keep his head in that position. The defendant, the record shows, was coming from the south on Railroad avenue, was driving towards Robert street where it crosses the avenue.

Sugar Gorman was, he says, sitting on the steps of the Log Cabin which faces east across the avenue, on the east side of which defendant was driving. Evidently Gorman was in a position where he could see defendant in his truck, and also the sedan Mrs. Pope was driving through Robert street across the avenue. He says when Mrs. Pope had just about crossed the avenue defendant waved his hand to a Mr. Berry who was standing near him, then turned his head in front, but was at that time too close, to stop, meaning too near the sedan. He did not, however, say how many feet or the exact proximity the truck was from the sedan when defendant turned ■his head after waving his hand in the direction of Mr. Berry. This statement corroborates the testimony of Mrs. Pope where she says defendant had his head turned immediately before the collision occurred.

It is shown that defendant was driving on the east side of the avenue, his right side, when the truck and auto collided. It is also shown that Mrs. Pope had negotiated about two-thirds of the - avenue when the accident happened at the intersection of the street and avenue. It is clearly shown that Mrs. Pope entered the intersection before defendant reached there with his truck.

Defendant, on cross-examination by plaintiff, ascribed the accident to the fact that Mrs. Pope suddenly stopped her car in front of his truck. In testifying in his own defense he reiterates this statement, and again insists it was because of this sudden unexpected stopping of her car that the collision occurred. In attributing the accident to that cause, and in order to sustain his contention or theory, he says, if she had stopped before reaching me, had continued across or had turned to her left, the collision would never have occurred.

Mrs. Pope, on the other hand, is positive that she never stopped in front of his car, that she never thought of so stopping. To the contrary, she testifies that, when she suddenly apprehended that defendant was dashing towards her she stepped on the gas to increase her speed with the idea that he would pass behind her.

Gorman says she did not stop her car before the accident, that she “kept a going.”

Tony Calamia, witness for defendant, says he witnessed the accident. He testifies that there were marks left on the asphalt back of Mrs. Pope’s car indicating that her rear wheels had been sliding or skidding, which he ascribed to the use of the brakes. Judging from the imprints of these wheels, he said that the car had stopped. This is contradicted by Mrs. Pope, also by Gorman, who says she kept on her way.

L. H. Pope testifies the only marks behind the Nash car indicated they had been caused by the car being pushed around, and in this respect he is corroborated by Hatzwell, a witness for plaintiff, but disinterested so far as disclosed by the record. Although Calamia first said that the marks behind the sedan showed that it had stopped, strange to say, in answer to a question from the court, he said when struck it was moving. Evidently under such testimony on this vital issue the court accepted as true the statement of Mrs. Pope on this subject. The conclusion of the court is sustained by the preponderance of the proof.

The solution of that question depended on the faith to be given to the testimony of these witnesses, a matter resting primarily within the province of the trial judge. Appellate courts will not reverse when the issue presented is one of fact, unless there be manifest error in the finding below, but we can discover no such error. On the contrary, we approve the finding as it is fully justified by the evidence. Besides, it is unreasonable to believe that Mrs. Pope would have suddenly stopped her car in the path of the advancing truck. Such an act would have been suicidal. It is hardly believable. As it appears, that Mrs. Pope had not stopped in front of the truck, as claimed by defendant, he, could, from his own account of the occurrence, have passed in the rear of the sedan, and the collision would never have happened.

When automobiles are approaching an intersection of streets at right angles, the case here, the rule is that the one entering it first has the right of way, and the other should respect that right, and failure to do so is negligence, Middleton vs. Jordan, 10 La. App. 189, 120 So. 668; even when the other auto has the right of way, the one entering the intersection first is entitled to proceed. Marshall vs. Freeman, 10 La. App. 12, 120 So. 414.

The defendant claims that he applied his brakes, skidded over the asphalt, but that it was too late to avoid the collision with the sedan which had suddenly stopped in front of his truck. The injuries to the sedan show that it received a violent blow, indicating that the truck must have been in rather close proximity to it when the brakes were applied. The fact that defendant had turned his head to the left when he waved his hand towards Mr. Berry as the truck neared the intersection also shows that defendant was but a very short distance from Mrs. Pope when he realized the impending danger and brought his brakes into requisition. This dangerous situation was the result of his total disregard of his duty under the circumstances which required him to have had his truck under control so as to allow Mrs. Pope who had first entered the intersection, to proceed across the avenue, a right to which she was clearly entitled. Defendant was therefore at fault.

Mrs. Pope was questioned at length as to whether she could not have avoided the collision after she saw the truck dashing towards her, by either stopping or suddenly turning to her left side. She explained that she stepped on the gas to let defendant pass in her rear, and that there was no stopping possible, and that turning to her left would not have avoided a collision because defendant would have run into her from the rear; that she did the best she could under the circumstances by stepping on the gas to allow defendant the opportunity of passing behind and avoiding the accident. It is possible that Mrs. Pope did not follow the best course in attempting to extricate herself from the perilous position in which she had been placed by the negligence and fault of the defendant. There was an emergency created there, and Mrs. Pope was acting under a reasonably well-founded apprehension of impending danger. In such a situation a person is not expected to exercise his full judgment and reasoning faculties. If he exercised the care and caution in an emergency which an ordinarily prudent person would have exercised under similar circumstances, he is not negligent because he fails to exercise the best judgment. Navailles vs. Dielmann, 124 La. 421, 50 So. 449, 134 Am. St. Rep. 508; Weinfield vs. Yellow Cab Co., 10 La. App. 316, 120 So. 420.

We are of the opinion that Mrs. Pope exercised the care and caution which an ordinarily prudent person would have exercised under similar circumstances, and that is all that was required of her. Furthermore, when two hazards are created by the negligence of another, and one is compelled to choose instantly between the two hazards, he will not be guilty of contributory negligence, although the one he selects results in injury.

In this case the hazards were created by the negligence of defendant, and, even if Mrs. Pope made a mistake in choosing between the hazards presented, she cannot be charged with contributory negligence. We believe that she followed the wisest course that could have been adopted in the sudden perilous situation in which she unexpectedly found herself, and that she was not in any way guilty of contributory negligence.

In the accident, Patsy, the daughter of Mrs. Pope and of plaintiff, aged about 14, received painful and severe injuries which required a delicate operation.

Two judgments were rendered against defendant, one for $1,500 for personal injuries to the child, and the other for $710.40 for damages to plaintiff’s auto, medical expenses, and attention to plaintiff’s daughter. The amounts allowed are supported by the proof and are not excessive.

Counsel for defendant contends that the doctrine which holds that the contributory negligence of the driver of an auto cannot be imputed to his guest is not applicable here because the child, when the collision occurred, was in the company and the actual care of her mother, under her protection, and was not a guest; that under such circumstances the contributory negligence of the mother is that of the child.

The question is extremely interesting, ably presented in a well-prepared brief replete with many citations from various courts, but we are relieved of the necessity of passing on the subject mentioned, as we find, for the reasons above stated, that the mother of the child was not chargeable with contributory negligence.

The two judgments in favor of plaintiff for the amounts above stated are hereby affirmed.

LECHE, J., not participating.

PER CURIAM.

For the reasons assigned in the case of plaintiff herein against same defendant, 126 So. 727, it is ordered, adjudged, and decreed that the judgment rendered, below in this case be, and is hereby, affirmed, with costs.