author: JANVIER,. J.

text:
    No. 11,417
    Orleans
    UNTEREINER v. CITY OF N. O.
    (March 4, 1929. Opinion and Decree.)
    (April 1, 1929. Rehearing Refused.)
    (May 21, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    F. Rivers Richardson, of New Orleans, attorney for plaintiff, appellant.
    W. F. Conkerton, of New Orleans,' attorney for defendant, appellee.
   JANVIER,. J.

Plaintiff alleges himself to be the owner of two lots of ground on Canal Boulevard in Lakeview, New Orleans. He claims to have acquired them from Jos. A. Bloom by Notarial Act on December 17th, 1925.

Bloom had acquired them from the State of Louisiana, one on December 9, 1923 for the State Taxes of 1922, and one on December 17th, 1924, for the State Taxes of 1923.

Plaintiff seeks to enjoin the sale of the property for City taxes and paving charges for the years 1924 and 1925.

This injunction is sought on the ground that the taxes and charges have been extinguished by confusion, and so far as the taxes are concerned it is further urged that the assessments in the name of the wrong person cannot form the basis of a legal tax sale.

It is claimed that extinguishment by confusion results from the fact that the City caused the property to be adjudicated to itself for unpaid City Taxes and paving charges for 1918. This adjudication took place in March, 1922. Plaintiff argues, that as the City became the owner of the property, under the adjudication of March, 1922, the City taxes for 1924 and 1925 and all paving charges, being due by the City as owner under the adjudication of 1922 to itself, were thus extinguished by confusion.

This seems to us to be a most dangerous attitude for plaintiff to assume, for the position of plaintiff cannot be sustained unless we are prepared to say that the adjudication of March, 1922, conveyed to the City full and perfect title. If it did convey such title to the City then plaintiff’s title is not good and he has no interest in attempting to enjoin the sale of the property. If, however, plaintiff’s title is good then the City was not the owner at the time the taxes for 1924 and 1925 became due, and hence these taxes and the paving charges were not extinguished by confusion.

Plaintiff, himself, has shown that the property was vacant and that after the adjudication to the City no steps were taken by the City to assert its ownership and no actual possession of the property was taken.

Under the authority of . State ex rel. Benedict vs. City of New Orleans, 112 La. 408, 36 South. 475, it seems quite evident that no such full and perfect ownership resulted from the .adjudication as is required where extinguishment by confusion is claimed.

So far as the attempted sales for the taxes alone are concerned, we are of the opinion that the assessments in the name of the former owner were absolute nullities, and that, therefore, they could not form the bases of valid sales.

The record shows conclusively that Parnin or Perrin, or whatever his true name was had had no interest in the property for several years and therefore, assessments in his name for 1924 and 1925 were absolute nullities.

“It is well settled that a tax sale made under an assessment in the name of one who is not the owner of the property, either in fact or according to the public records, is not a valid sale, unless and until the illegality is cured by the prescription of three years.” Nylka Land Co. vs. City of New Orleans, 166 La. 786, 117 Sou. 918.
“Land not assessed in the name of the legal owner is not legally assessed, and the assessment is null.” Armstrong vs. Progressive Realty Company, 128 La. 727, 55 So. 334. See also In Re Sheehy, 119 La. 608, 44 So. 315.

But argues the City of New Orleans, plaintiff has no right to set up the improper assessment because he has not complied with Sections 25 and 26 of Act 170 of 1898, Section 25 of which reads as follows:

“That it is hereby made the duty of every taxpayer in the Parish of Orleans to make return of his property duly sworn to, within twenty (20) days after the list for such purposes shall have been left at his domicile or place of business, and any refusal, neglect or failure from .any cause whatsoever to comply with this provision of this act shall act as estopping the taxpayer from contesting the correctness of the assessment list filed by the assessor and any owner, agent, administrator, executor or other representative, shall have no standing in court for a wrong description (whether in name, measurement or otherwise) unless written complaint thereof was made during the period when the lists are open for public inspection and correction, and the property of such owner, agent, administrator, executor or other representative so assessed shall be deemed properly assessed.”

The pertinent part of Section 26 (as amended by Act .63 of 1906, Sec. 2) provides :

“That all taxpayers in the Parish of Orleans shall have the right to appear before a standing committee on assessments of the City Council of the City of New Orleans, between the first of April and the tenth day of April, inclusive, of the year in which the assessments are made, * * * and be heard concerning the descriptions of the property listed and valuation of same as assessed; and the board of reviewers having considered the claim for relief of the taxpayer, shall either approve or disapprove the petition as provided in Section 24, and if disapproved, then the taxpayer, shall have the right of testing the correctness of their assessments before courts of justice in any procedure which the Constitution and laws may permit; but the action to test such correctness shall be instituted on or before the first day of November of the year in which the assessment was made. In all suits for the reduction of assessments the State Tax Collector of the respective parishes shall be made parties.”

It is argued that under this statute plaintiff is estopped from claiming any benefit or rights resulting from an improper assessment because he has not alleged and shown that he filed the list required by that Statute.

This contention, however, seems to be thoroughly answered by the decision of the Supreme Court in Nylka Land Co. vs. City of New Orleans, supra, in which case the Court said:

“The Court of Appeal misconstrued the language of section 25 of the act, where it is said that, if a property owner neglects to make a return of his property within the time prescribed, he ‘shall have no standing in court for a wrong description (whether in name, measurement or otherwise),’ etc. In the expression ‘Whether in name, measurement or otherwise,’ the word ‘name’ does not mean the name of the person to whom the property is assessed; it means the name by which the property is designated or described if it be described by name. Section 9 of the act declares that it shall be sufficient to assess property according to such description as will reasonably identify it, ‘such as designating the tract or lot by the name by which it is commonly known, * * * or by the dimensions or description or name given in the act translating the ownership thereof,’ etc. The name of the taxpayer, to whom the property is assessed, is, to some extent, descriptive of the property; and it may be that one who is in fact the owner of the property assessed, or who appears on the public records to be the owner, would be forbidden by section 25 of the statute to demand that an error in the spelling or writing of his name on the assessment rolls should be corrected after the expiration of the time in which the lists were open for inspection and correction. That is a question of no importance in this case, where the complaint is that the lots were assessed to individuals who were not the owners of them, either in fact or according to the public records.”

This decision in our mind, is authority for the proposition that the owner is es-topped to contest an assessment inaccurate as to description or incorrect as to measurement or as to value, but where the assessment is an absolute nullity resulting from the fact that it is in the name of the wrong party no estoppel results. We, therefore, feel that plaintiff’s failure to file the list required by the Act of 1898 does not estop him to set up the absolute nullity in the assessment in the name of the former owner.

The situation with regard to paving-charges is, however, entirely different and we believe, that the decision of the Supreme Court in Moody & Co. vs. Sewerage & Water Board, 117 La. 360, 41 So. 649, is controlling here. There the Court held that the paving charges run against the property itself and that the sale by the City or the adjudication by the City did not have the effect of cancelling these paving charges. As the court said:

“Under Act No. 73, p. 116 of 1876, the lien for amount due remains ‘as such charge’ on the property. The city has a full right and the property is sold subject to that right which primes all other. Under the terms of Act 85, p. 111 of 1888, the property passes to third persons, adjudicatees, subject to the statutory pledge.”
“It is different if it be adjudicated to the state under Act No. 80, p. 88 of 1888.”

If plaintiff’s contention were sound, immediately on the adjudication to the City of any property, on which paving charges were due, the charges would be extinguished by confusion, and the City could not, therefore, dispose of the property without entirely wiping out and eliminating the debt due by the property for paving. The City would thus find itself in a very unfortunate situation and if many such instances occurred it would be deprived of a large part of the paving revenue and would find itself entirely unable to meet its obligations in this regard, and unquestionably a curtailment in paving and public improvement would be the inevitable result.

Our conclusion insofar as the taxes are concerned is that no valid sale can result from an assessment in the wrong name, but so far as the paving charges are concerned they run against the property itself and they can be collected from the owner, whoever he may be, without regard to the fact that a partial or quasi ownership may have at one time existed in the City.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from insofar as it finds plaintiff to be the .owner of the property in question be and it is affirmed.

And it is further ordered, adjudged and decreed that the judgment appealed from insofar as it dismisses plaintiff’s prayer for an injunction restraining defendant from selling plaintiff’s property for taxes for 1924 and 1925 be and it is annulled, avoided and reversed and it is now ordered, adjudged and decreed that defendant be and it is enjoined, prohibited and restrained from proceeding further with the sale of plaintiff’s property for taxes - for the years 1924 and 1925.

And it is further ordered, adjudged and decreed that the judgment appealed from insofar as it dismisses plaintiff’s prayer for an injunction prohibiting and restraining the sale of plaintiff’s property for paving charges be and it is affirmed.

Plaintiff to. pay all costs.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,782
    Orleans
    JOHNSON v. THE ITEM CO., LTD.
    (April 1, 1929. Opinion and Decree.)
    (April 15, 1929. Rehearing Refused.)
    Gerald Netter, of New Orleans, attorney for plaintiff, appellee.
    Henry & Cooper, and A. M. Suthon, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues for $107.60, damage caused to his automobile as a result of a collision with a truck of defendant company, at the corner of Banks Street and Jefferson Davis Parkway, in this city.

Plaintiff, with his three children in his car, was driving in Banks Street, towards the Mississippi River, and the truck of defendant was being driven by the negro chauffeur on Jefferson Davis Parkway in an uptown direction.

Both 'Banks Street and Jefferson Davis Parkway have neutral grounds, and on the neutral ground of Banks Street, there are palms which, to some extent, seem to have obstructed the view of plaintiff, as they were on his left, and it was from that side that the Item truck was approaching.

Plaintiff charges that the truck was running at a tremendous speed, which he estimated as about fifty-five miles an hour, and that it failed to give any warning of its approach.

Defendant admits that the driver of its truck was negligent, but contends that the evidence offered by plaintiff shows that he, himself, was negligent in failing to keep a proper lookout, and, that had he been on the alert and had he looked before he entered the intersection, he would have seen the truck approaching, and would not have driven out into its path.

A reading of the evidence, particularly that offered by plaintiff convinces us that he did not stop or look before he entered the intersection, and, that, but for his negligence in this regard, the collision would not have occurred, notwithstanding the negligence of defendants’ driver.

It should be borne in mind that the Item truck was "hugging” the neutral ground of Jefferson Davis Parkway, so that from the direction from which plaintiff’s car came into its path, plaintiff had to cross the whole driveway which is about forty feet wide.

Therefore, even though plaintiff’s view was, to some extent, obstructed just before he entered the intersection, still, had he looked at the moment of entering, and had he had his earn under the control which the law requires under such circumstances, he would instantly have seen defendants’ truck and would have stopped in a few feet.

That plaintiff did not look just as he entered the intersection is admitted by him.

He testifies on this point as follows:

“Q. Why could you not see him?
“A. I did not look to my left.”

One of plaintiff’s sons says that his brother called his father’s attention to the approaching truck. He says:

“My brother called my father’s attention to this man coming fast.”

At the time this warning was given, the truck had not yet reached the other sido of Banks Street. The same witness testifies in this regard, as follows:

“Q. You looked up when your brother first called attention?
“A. Yes.
“Q. Where was the Item truck then?
“A. A little up on the other side of Banks Street.
“Q. It had not gotten to the intersection?
“A. No.
“Q. It had not entered the first roadway?
“A. No.”

The older brother who called plaintiff’s attention to the truck makes a very significant statement:

“Q. Who called your father’s attention to the truck ?
“A. I did when I saw it coming fast, thinking he did not see it.”

Even when ene has the right of way, he is not relieved from the necessity of looking into the direction from which others may be expected to approach, and where such care would; as in the case here, have prevented the accident, he who fails to look cannot recover, even though the other party was grossly at fault.

On neutral ground streets, each driveway is a one-way street, and for this reason, plaintiff was required to look only in one direction. Had he looked in that direction he would have seen the truck. Had he seen it, he could have stopped in ample time.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and it is now ordered that there be judgment in favor of defendant, dismissing plaintiff’s suit at his cost.


author: JONES, J.

text:
    No. 10,805
    Orleans
    MORTALLARO v. HARTFORD FIRE INS. CO. OF HARTFORD, CONN.
    (March 18, 1929. Opinion and Decree.)
    (April 15, 1929. Rehearing Refused.)

      Guy J. D’Antonio, of New Orleans, attorney for plaintiff, appellant.
    Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

The Hartford Fire Insurance Company issued to plaintiff, a policy insuring him against loss by fire to the amount of $900.00 on a single two-story house situated on Louisville Street in the City of New Orleans.

The building was destroyed by fire on February 15, 1926, and the defendant insurance company has refused to pay the loss because the plaintiff did not own the land on which the building stood. The insurance policy contains the following clause:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto shall be void * * * if the subject of insurance be a building on ground not owned by the insured in fee simple.”

It is admitted that the plaintiff did not own the lot of ground upon which the building stood. In fact, it is so alleged in Article III of his petition and there is no doubt that a violation of the above quoted, clause of the policy results in avoiding the policy. Campbell vs. Richmond Ins. Co., 156 La. 455, 100 So. 679.

The contention is made that the defendant insurance company has waived the foregoing provision of the policy or is estopped to plead it.

Thus, the only question is one of fact: Did the insurance company waive the provision of the policy in reference to the building standing on land owned by the insured, or is the insurance company for any reason estopped from setting up this provision of the policy as a defense to this suit?

The trial court dismissed the suit.

Plaintiff’s case rests upon the testimony of Mrs. Mortallaro and of her brother, Peter Stripoli, and. of a friend of her brother, Henry Matranga. Their testimony is conflicting and improbable.

The defense is sustained by the evidence of the Insurance Agent and his chief clerk, who had been with him for twelve years, and by all the probabilities of the case.

A careful examination of the entire record convinces us that the judgment was correct, and it is therefore affirmed.


text:
    No. 10,880
    Orleans
    SMITH v. MARINE OIL CO., LTD.
    (April 15, 1929. Opinion and Decree.)
    (April 29, 1929. Rehearing Refused.)
    Weiss, Tarrut and Stitch and W. M. Barnett, of New Orleans, attorneys for plaintiff, appellant.
    Spearing and Mabry, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This is a suit in compensation.

Plaintiff alleges that he received injuries arising out of, and incidental to, his employment ‘‘as- a laborer in defendant’s service station.”

He also alleges that “the work for which he was employed, and in which he was engaged at the time of such injuries was dangerous and hazardous.”

Defendant excepted to the petition, contending that it shows no cause of action, because it contains no allegation of fact showing the nature of the work, and that the allegation that the work was dangerous and hazardous is merely a conclusion of the pleader.

The trial court maintained the exception and dismissed the suit and from this judgment plaintiff prosecutes this appeal.

The sole question for determination is whether or not the allegation that petitioner was employed as a laborer in a service station sets forth facts sufficient to warrant our holding that he was engaged in a hazardous occupation, such as is under the protection of the Compensation Laws of this State.

There can be no doubt that the only occupations protected by the Compensation Laws of this State are those which are specifically designated in the Act, or which, by agreement made in advance, or by judgment of court obtained in advance, are determined to he hazardous.

See Dejean vs. Ujffy, 14 Orleans App. 230 and Anderson vs. Tharp, C. of App. Par. of Orleans, 121 So.

Therefore, since the occupation in which plaintiff was engaged was not the subject of special agreement, or judgment, prior to the accident, he can recover only if the occupation is one of those denominated as hazardous under the Statute.

On this point we find that this Court in Conaway & Clark vs. Marine Oil Co., Ltd., 5 La. App. 134, a case involving the same defendant and th,e.same kind of employment, held that because of the fact that the employees of service stations are required to work in the proximity of gasoline, and because gasoline is a dangerous explosive, such employment is within the terms of Sec. 1, paragraph 2(a) of the Statute, Act 20 of 1914, the pertinent part of which reads as follows:

“Any occupation entailing the manufacture, transportation, care of, use of, or regular proximity to dangerous quantities of gunpowder, dynamite, nitro-glycerine and other like dangerous explosives.”

Exceptor, strenuously urging us to review our decision in the Conaway & Clark case, contends that that decision was wrong, in that it did not take into consideration the word “like,” which appears in the above quoted portion of the Statute. Exceptor contends, in other words,—that employment in the proximity of gasoline is not employment in proximity to a dangerous explosive like those others set forth, to-wit: gunpowder, dynamite; nitro-glycerine. We are urged to hold that gasoline is not like those other explosives, which are dangerous in themselves, in that they are manufactured for the purpose of being exploded, whereas, gasoline is not.

It seems to us that exceptor is> wrong in this contention'; gasoline is manufactured for the purpose of being exploded after being vaporized, and, in fact, would be absolutely useless to automobiles if it were not exploded within the cylinders, or explosion chambers of the automobile engine.

As a matter of fact, gunpowder, dynamite and nitro-glycerine are not dangerous, if properly used, by persons familiar with their use, but gasoline is just as dangerous as any of the other explosives mentioned, if carelessly used. Gunpowder will explode if a match is thrown into it; so will gasoline, although it is not intended that either will be used in this way. Gunpowder is intended to be exploded by a cap in the firing chamber of a cartridge; gasoline is intended to be exploded by a spark in the firing chamber, or explosion chamber of an engine.

We fail to see that any distinction can be made on this point, and are, therefore, of the opinion, as was expressed in the Con-away & Clark case, that persons employed in the proximity of gasoline are under the protection of the Act.

As to the alleged deficiency in pleading, it seems to us it would have been better pleading to have alleged, in addition to the fact that -plaintiff was employed at a service station, the further fact that his employment required him to come constantly into the proximity of gasoline, and that gasoline is a dangerous explosive. But these are facts which are within the common knowledge of everyone. We all know that employment at a service station requires an employee to come into contact with gasoline, and we also know that gasoline is a dangerous explosive, therefore, the failure to make these allegations amounted to nothing more than the failure to make allegations as to facts which were already our general knowledge. Then too, it should be borne in mind that this suit is brought under the Compensation Laws, and that under those laws, technical objections and defenses should be brushed aside where they do not involve matters of substance.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that the matter be remanded to the District Court for further proceedings not inconsistent with this opinion and decree.


text:
    No. 11,448
    Orleans
    STATE EX REL. DURIEU ET AL. v. NEW ORLEANS LAND CO.
    (March 18, 1929. Opinion and Decree.)
    (May 21, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      C. S. Hebert, of New Orleans, attorney for relators, appellants.
    Anna Judge Veters, of New Orleans, attorney for intervener.
    W. O. Hart, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is a mandamus proceeding brought by the relators, Emile Durieu and Arthur Durieu to compel the defendant to transfer to Emile Durieu ten shares of stock. The certificate has been lost, but it is contended on behalf of relators that it was originally purchased by Emile Durieu, the son, through Arthur Durieu, the father, with funds furnished by Emile, and that he, being a minor, the transaction was handled in his father’s name.

At that time the elder Durieu was operating a shoe store in New Orleans known as the “Red Star Shoe Store.” Shortly thereafter his business became involved and was taken over by his creditors. The creditors organized a corporation known as “Red Star Shoe Company,” and for a short time attempted to operate the business for the benefit of all. Meeting with only partial success it was deemed advisable to sell the business’ in globo, and the sale was effected to one Jos. E. Renecky, the intervener here.

Renecky claims that he is the owner of the stock by reason of the fact that it was bought during the existence of the “Red Star Shoe Company.” Although the stock certificate has been lost, the receipt stub, which is introduced in evidence shows that the certificate was issued to “Red Star Shoe Company,” April 11, 1892, and was receipted for by A. B. Lacoste, as Trustee of Red Star Shoe Company. This stub shows that the certificate issued bears the number (9), and that the certificate represented ten (10) shares. Renecky contends that he is entitled to the stock because it formed part of the assets of Red Star Shoe Company, all of which he purchased. The Red Star Shoe Company, according to Renecky, purchased the stock by delivering shoes to the employees of the Company, which issued it. There is some corroboration of this contention in the record.

The present defendant, New Orleans Land Company, is the successor of the New Orleans Swamp Land Reclamation Company, which is the corporation which originally sold the stock.

According to page 149 of the ledger of the New Orleans Swamp Land Reclamation Company, ten shares of stock were paid for between April and June, 1889, by Arthur Durieu. It is contended by Renecky that the ten shares paid for by Durieu constituted a different transaction entirely and that the ten shares issued in the name of Red Star Shoe Company is not the same stock.

It strikes us as being most unusual that a corporation organized by creditors for the purpose of protecting their interest in a defunct concern should invest in land stock of doubtful value, and, in view of the fact, that the record shows conclusively that ten shares of stock were actually paid for by the Durieus a long time prior to the incorporation of the Red Star Shoe Company, which certificate has never been accounted for, and in view of the fact, that there are only ten shares which have never been accounted for, it seem to us quite certain that the ten shares which were paid for by the Durieus are the same ten shares which were afterwards issued to the Red Star Shoe Company. It is most significant that in the bankruptcy proceedings, No. 34,441 of the Civil District Court for the Parish of Orleans, entitled Arthur Durieu vs. His Creditors the stock is listed but is not inventoried, and there is nothing in that record to show either the transfer of the stock by Durieu to his creditors or the transfer of the stock by Red Star Shoe Company to Renecky.

We have gone carefully over the record in this case together with the record in the matter referred to above entitled Durieu vs. His Creditors, and are of the opinion that only ten shares of stock were paid for and that they were paid for by Durieu and that the claim that the ten shares were bought by the Red Star Shoe Company, while it was being operated by the creditors of Durieu, is not well founded.

New Orleans Land Company, manifestly is not interested in the outcome of the controversy but was, of course, compelled to employ counsel to protect its interests.

Under the provisions of Section 17 of Act No. 180 of 1910, New Orleans Land Company is entitlfed to the return of such reasonable costs and attorney’s fees as it may have had to expend.

The lower court allowed attorney’s fees of Fifty Dollars and we think this sum is correct.

Act 180 of 1910 also requires that the person requesting a new certificate to take the place of a lost one shall furnish a sufficient surety to indemnify the company issuing the duplicate. We think the bond for $1,000.00 as required by the lower court sufficient.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed insofar as it declares Jos. E. Renecky to be the owner of the said stock, and that there now be judgment in favor of relator, Emile Durieu ordering and commanding the New Orleans Land Company to issue to him a certificate for ten shares of its stock upon his furnishing surety in the sum of One Thousand Dollars, and upon the payment by him to New Orleans Land Company of $50.00 as attorney’s fees.

All costs except those of intervener to be paid by relator.


author: JONES, J. JANVIER, J.,

text:
    No. 11,504
    Orleans
    GIBSON v. T. & P. RY. CO.
    (April 1, 1929. Opinion and Decree.)
    (April 29, 1929. Rehearing Refused.)

      Chas. T. Wortham, of Donaldsonville, Roland B. Howell, of Thibodaux and H. B. Leach, of New Orleans, attorneys for plaintiff, appellee.
    Gilbert and Gianelloni, of Napoleonville, and Spencer, Gidiere, Phelps and Dunbar, of New .Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff sues to recover $12,-000.00 for the death of George McCalip, her twenty-year-old son by a former marriage, who was instantaneously killed on April 14, 1927, while sitting or lying on the cross-ties of defendant’s track, either asleep or ill, at 6:35 a. m., by a train of defendant, Southeast of Donaldsonville.

In its answer defendant denies the allegations of each and every paragraph, but does not plead contributory negligence. The case was tried by a jury, which returned a verdict for $6000.00.

Motion for a new trial was refused by the District Judge, who gave his reasons as follows:

“The issue presented to the jury was a rather close question of fact, which, from the evidence, they resolved in favor of the plaintiff and awarded a verdict for $6,-000.00. They were instructed by the court as to what is conceived to be the law governing the duties of an engineer on a rail-, road train to keep a lookout at all times for objects which may be or come upon the railroad tracks, and evidently came to the conclusion that under the facts in the case the engineer was negligent in not seeing the unfortunate victim in. this accident, in time to avoid killing him. The law as I take it is, that the jury’s verdict is entitled to great weight unless it be manifestly erroneous, and I am not prepared to say that it is in this case. If I am wrong in my view of the matter now I think there is a good record made on which the error, if any, can be corrected by the appellate court.
“I am of the opinion, however, that the amount awarded is more than is warranted under the evidence, but that, also, is a matter which if wrong, can be corrected on appeal without the necessity of trying this case all over again.”

We do not pass upon the ruling of the trial judge on the objections to the testimony of defendant’s witnesses on. the ground that contributory negligence had not been pleaded, because the sole question before us is whether, under all the circumstances of the case, the engineer and fireman had the last clear chance to avoid the accident.

This principle is stated in the case of McGuire v. V. S. & P. Ry. Co., 46 La. Ann. 1543, 60 So. 457, in the first paragraph of the syllabus prepared by the -court, as follows:

“In an action for damages against a railroad company by the surviving parents for the loss of their son run over and killed by the locomotive, the defense of contributory negligence will not avail, if by reasonable care on the part of those in charge of the train the accident could have been avoided. * * *.”

There is very little dispute about the facts, which may be briefly summarized, as follows:

The accident occurred in the open country about 6:35 p. m., April 14, 1927, where the Winchester Plantation Road crosses the track of defendant. Thi's road was used by the laborers on the plantation and was traveled by the wagons and mules in going back and forth to the rice plantation. On the morning of the accident there was no fog. The day was clear, and the track was straight for several miles. The train which struck the decedent was coming South toward New Orleans, at a speed of 50 or 52 miles per hour. It consisted of an engine, a tender and eight coaches, the length of each coach being between 60 and 70 feet and the length of the entire train, about 600 feet. The deceased was a little more than six feet in height -and weighed from 155 to 160 pounds. The roadbed was about four feet higher than the level of the ground. There were no eye witnesses to the accident, except the engineer and the fireman.

The engineer testifies that he first saw the decedent about 300 or 350 feet away, on the left hand side of the track; that the object appeared to be at the end of the cross-ties, or out on the embankment near the ends of the ties; it was in a stooping position and he could only see the shape of the back; it looked like a dog or a calf, or something of the kind in the weeds at the side of the track; he did not realize it was a man until he was within 150 or 250 feet of the' object, when he began to blow his whistle and put on his brakes, but it was too late; he thought that the man must have raised up, although he did not see him; he stopped his train as quickly as he could and backed up two or three car lengths to where the man was lying and found that he was dead; the Johnson grass by the tracks was perhaps three feet high and it was growing up near the end of the cross-ties and the man was about eight or ten feet east of the plantation road. The body was knocked about four or five feet.

The fireman testified that he first saw the object about 500 feet away on his side of the track; that he “never saw his face at all, only his shoulder and head;” it looked like a dog or a buzzard and he did not recognize it as a man until he was within about 200 or 250 feet, when he called to the engineer, who was already blowing his whistle; the man was sitting in a stooped position but he could see his shoulders and head; his seat is about twelve or fourteen feet above the track.

The record contains two photographs which were taken on April 23rd, nine days after the accident happened. These photographs show that the Johnson grass did not cover the ends of the ties and that it was not sufficiently high to cover the body of the man sitting on the - end of a tie.

A test was made by the two Gibsons, the step-father and his brother, at the scene of the accident on the day the photographs were taken and both of these witnesses testified that a man sitting on the rail could easily be seen from a point 1800 feet up the track. Another test was. made by disinterested witnesses on the day before the trial, which was held on February 13, 1928. Although the day was cloudy, the witnesses testified that they could see a man sitting on the end of the cross-ties from a distance of 1600 feet. The engineer testified that he might possibly stop such a train, going at 50 miles per hour, in about 600 feet, but usually it would take a much greater .distance.

As the engineer says that he could only see “the shape of the back,’’ and it looked like “a dog or a calf,” and as the fireman, who had a better view, says “I never did see his face at all, nothing but his shoulders and his head,” we conclude that the man was sitting with his back toward the train.

The evidence seems to us to justify the finding of the jury, for we are convinced that the engineer and fireman, under all the circumstances of the case, if they had been acting with the ordinary diligence required of such employees, should have seen the deceased in time to stop the train and should have done so, as the man, who had his back toward them, gave no sign of being awake or capable of moving.

A similar point has been before the court in several cases. In Blackburn vs. Railway Co., 144 La. 520, 80 So. 70S, where an intoxicated man, sitting on cross-ties, or leaning against the rail, was killed near the station in Colfax, La., about 4:30 a. m., on September 9, 1915, the court uses the following language:

“We conclude, therefore, that deceased was not lying down on the ground with his head between the cross-ties, but was sitting or reclining on the cross-ties and leaning against the rail in such a position that, with a good headlight, or in the daytime, he could have been seen by the engineer and fireman, had they been keeping a proper look-out for several hundred, feet. * * *
“We have examined with much care the 16 decisions of this court cited by the appellant, but find that in each and all of them the injured or deceased persons were struck, either while walking on the tracks in a manner to lead those in charge of the train to believe they were going to get off, were in the yards and private premises of the railroad, or were in obscure places * * * on the tracks where the engine-men were not required to use anything more than ordinary care. * * *
“In our opinion this case must turn upon the failure of the engineer or fireman to see deceased in time to stop and avoid striking him. As indicated heretofore, the active phases of his gross negligence wére spent, and he was in such a position of apparent helplessness as to have been seen and his condition appreciated had the proper precautions been observed.”

On this point see, also, the following cases:

McClanahan vs. V. S. & P. Ry. 111 La. 781, 35 So. 902;

Jones vs. C. R. I. & P. Ry., 162 La. 690, 111 So. 82;

Vaughn vs. N. O. Ry. & Light Co., 13 Orleans App. 116;

Grennon vs. N. O. Public Service, Inc., 10 La. App. 641, 120 So. 801.

The facts in this case are closely similar to those in the Blackburn case quoted above, but they differ from those in Hebert vs. La. Western R. R., 104 La. 483, 29 So. 239, for there the decedent, who was sitting on the end of the tie with his side toward the approaching train, when the whistle blew, turned his head toward the train, and the court held that the engineer, who saw the man plainly some distance away, was justified in thinking that tho man would step off the end of the tie, or step aside. Here, the man, who had his back to the train, and was sitting in a stooping position, never gave any evidence that he heard the signals.

Defendant relies upon three cases: Brooks vs. T. & P. Ry., 141 La. 809, 75 So. 731; Rogers vs. L. R. & N. Co., 143 La. 158, 78 So. 237, and Tyer vs. Gulf C. S. F. R. R. Co., 143 La. 178, 78 So. 438. A brief analysis of these, decisions will show that they are not applicable here, as the accidents happened at night, in deserted localities, and not on a clear day near a plantation road.

In the first case cited the accident happened at 1:00 o’clock in the morning at a lonely, deserted point, 3750 feet east of the railroad station and the man was lying in a drunken slumber upon the track. The track was not straight, but curved and the court found that the evidence did not show that the engineer, in the exercise of ordinary diligence, should have seen the decedent.

In the second case the accident happened between 10:30 and 11:00 o’clock at night on the outskirts of the City of Alexandria. On one side of the track was an open field and on the other side • a thicket, “a place where no one would reasonably expect to find a man between 10:30 and 11:00 o’clock at night.” The deceased was lying between the rails of the track and could not be seen by the engineer in time to stop the train. In that case, however, there was evidence that tended to show that the engineer should have seen the man in from 350 to 500 feet, under the circumstances.

In the third case cited, the accident happened about ten minutes of eight o’clock on the evening of June 14th, when the atmosphere was smoky and some darkness had spread over the wooded swamps through which the train was running. The engineer swore that he could not have seen the man any sooner than he did see him under the existing circumstances.

As to the quantum, we think, with the trial judge, that the amount allowed should be reduced. The evidence shows that the mother, aged 42, had five children, three girls and two boys. The eldest girl was working in a store at $8.00 a week. The boy’s stepfather, plaintiff’s second husband, is a general contractor or head carpenter and had always made a living for himself and family until a few months before the death of his step-son, when he suffered a broken hip, which he claims had incapacitated him for a while, and would necessarily diminish his income in the future. The deceased, who was the eldest child, and a painter by trade, was, at the time of his death, walking out to Houston, Texas, to obtain work, which he had not been able to secure in Jackson, except at irregular times. His mother had not seen him since the last of February, when he left Jackson, Miss., to visit his grandparents in Meridian, Miss. Both she and her husband testified that he had been out of work about two months before he left Jackson; that he earned, when at work, about $7.00 a day; that he had always lodged and boarded at home and gave his mother one-half of his earnings. Of course there is no evidence as to how much he would have contributed in the future, when living away from his home. Furthermore the young man was likely to get married at any time.

In Taylor vs. V. S. & P. Ry., 151 La. 270, 91 So. 732, the parents were allowed $5,000.00 for the death of an unmarried son, 26 years old, where he was killed instantly. They were not dependent upon him for support, hut he occasionally contributed financial assistance.

In Rousseau vs. T. & P. Ry., 4 La. App. 691, decided in August, 1926, this court allowed $6,000.00 to both parents for the death of an unmarried son, 26 years old, who sued for damages for their son’s suffering, for their loss of support, affection and mental anguish.

Here there was no claim for inherited damages, as the boy died instantaneously.

See, also, Johnson vs. Industrial Lumber Co., 131 La. 897, 909, 60 So. 608; Hebert & Wife vs. Baton Rouge Elec. Co., 150 La. 958, 91 So. 406, 25 A. L. R. 245; Aymond vs. Western Union Tel. Co., 151 La. 184, 188, 91 So. 671.

It is always difficult to fix the amount of damages in such cases, but a careful study of those nearest in point convinces us that a judgment for $5,000.00, under the circumstances, will be consistent with the decisions of our Appellate Courts.

For the reasons above stated the judgment appealed from is amended, and it is now ordered that there be judgment in favor of plaintiff, Mrs. J. A. Gibson, and against defendant, Texas & Pacific Railway Company, in the sum of Five Thousand Dollars ($5,000.00), with interest at five per cent per annum from judicial demand until paid, and as thus amended, affirmed. Costs of lower court to be paid by plaintiff and of this court to be paid by defendant.

JANVIER, J.,

dissenting.

I am unable to agree with my colleagues in their view that the operatives of the train of defendant were negligent in not sooner realizing that the object which they saw was a man and in not stopping the train sooner than they did.

I q,uite agree that there are certain circumstances under which engineers must be continuously and constantly on the alert and under which trains must be under such control as to permit of their being stopped on very short notice. Those circumstances were present in the case of Blackburn vs. L. R. & N. Co., 144 La. 520, 80 So. 708, on which case my colleagues base their present opinion but seem to me to be conspicuous by their absence in the case now before us. The circumstances to which I refer are present when, on account of proximity to cities or towns, or much traveled roads, the trainmen know or ought to know that there are likely to be persons on or near the tracks. That such was true in the Blackburn case is conclusively shown by the following excerpt from that decision: “At the place where Blackburn was killed, the railroad track was used as much as the street, to the knowledge of defendant and those in charge of the train.”

That the circumstances surrounding the happening of the accident in the case now before us were entirely different is well illustrated by the fact that the place at which the deceased was killed was so inaccessible that the parish authorities came to the conclusion that they could not move the body even to the front road without great difficulty and expense and therefor^ buried it where it was found, alongside the railroad track.

The facts of this ease and the circumstances surrounding the accident appear to me to bring it squarely within the doctrine announced by the Supreme Court in Hebert vs. Louisiana Western Railroad, 104 La. 484, 29 So. 239, in the syllabus of which the court said:

“The engineer of a train running on schedule time, on its own right of way, in the open prairie away from any town or crossing, is not called upon to immediately slacken its speed, from the simple fact that a trespasser, sitting upon the ties, does not at once rise and change his position on réceiving warning of the approach of the train by the ringing of the bell, and the blowing of the whistle, duly and properly given.”

If the deceased in the instant case was sitting on the top of the rail, as is contended by plaintiff, there was nothing in his position to indicate that he was in a helpless condition and, even if the engineer had seen him sooner than he did, under the doctrine announced in the Hebert case, he would not have been required to do more than sound his whistle and ring his bell, because he would have been justified in assuming that a person sitting upright on top of a rail is not helpless and will heed the warnings given. If, then, under those circumstances, the engineer was not called on to immediately slacken his speed, but only to sound his signals, did he not do all that the law requires of him when, at about five hundred feet from deceased, which was the point at which deceased was first seen, he blew his whistle and applied his brakes?

If deceased was not sitting on top of the rail, then the tests made by plaintiff’s witnesses, which show that a man sitting on top of the rail could be seen fifteen or eighteen hundred feet away, are absolutely valueless. If deceased was sitting on the ground or lying near the ends of the crossties, then it is easy to understand why the operatives of the train did not realize sooner that the object they saw was a man.

It is most significant that both the engineer and the fireman saw the object at about the same instant. This shows, as I view it, two things: That they were both looking out ahead and that what they saw was not recognizable as a human being further away than about five hundred feet, which is about the distance it was away when they realized what it was.

The train in question was a heavy, fast moving passenger train, and while there is no testimony to show within what distance it could be stopped, it is well known that such a train cannot be stopped within at least twice the distance which was left to the engineer after he saw the object and realized what it was.

That there is a vast difference between the degree of care required of trainmen in cities or towns or in the thickly populated neighborhoods and that necessary in obscure places was recognized by the Supreme Court in the Blackburn case, where, in discussing the various decisions in similar cases that Court said:

“We have examined with much care the sixteen decisions of this court cited by the appellant, but find that in each and all of them the injured or the deceased persons were struck, either while walking on the tracks in a manner to lead those in charge of the train to believe they were going to get off, were in the yards and private premises of the railroads, or were in places on the tracks where the engine-men were not required to use anything more than ordinary care.”

I know quite well that these cases differ, each from the others and that each must be decided according to its own facts but it seems to me that the general principle which runs through them all is that the speed of the train and the attention of the engineer should be proportionate to the probability of danger. It is very evident that the probability of danger to pedestrians in the locality in which the deceased was, was very remote and consequently, only ordinary care should be exacted of the engineer.

The opinion of my colleagues, as I read it, hold the engineer to the highest degree of care, in fact to such care as should have been properly required of him had he been operating his train through a city or past a depot, or across a much traveled highway.

The cases involving the running over of persons on tracks, helpless by reason of intoxication or sickness, or otherwise, fall into either of two well defined classes-Those in which the crew of the train should be held to the very highest degree of care and those in which only ordinary care should be required. The Blackburn case, supra, is a typical example of the former and the Hebert case, supra, is an excellent example of the latter. In all of the cases, where it appeared that the injured person was helpless, it was held that, no matter how great his negligence in going upon the track in the first instance, as soon as helplessness overcame him, the active phases of that negligence were spent and his negligence in remaining passive became passive and that after that moment the sole question to be determined ,was whether or not the crew of the train had used such care as was required under the circumstances. In all the cases cited in either of the cases mentioned or in any other I find none where the spot at which the accident occurred was so isolated as in the instant case and where, therefore, there was less reason for the crew of the train to have reason to expect a person to be asleep on the track.

For these reasons I respectfully dissent.


text:
    No. 11,596
    Orleans
    LANDRY v. SOUTHERN BOILER SCALING CO.
    (April 1, 1929. Opinion and Decree.)
    (May 21, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      R. A. Dowling, of New Orleans, attorney for plaintiff, appellee.
    John May, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, a machinist, while in the course of his employment with defendant, sustained an injury which necessitated the amputation of two phalanges of his left index finger.

Under Paragraph 11, of Section D, of Subsection 1, of Section 8, of Act 85 of 1926, the loss of two phalanges of any finger other than the thumb is considered as equal to the loss of one-half of such member.

Under Paragraph 2, of the same section, the loss of any index finger entitles claimant to sixty five per cent (65%) of his wages during thirty weeks (30), therefore, claimant, under Paragraph 11, was plainly entitled to, and in fact, received sixty-five ¡per cent (65%) of his wages for fifteen (15) weeks, half the time provided for the total loss of the finger.

Claimant now contends, however, that the stump of his index finger is so sensitive and is of so little use to him in his trade as a machinist, that it should be treated as though it were included within Paragraph 14, of Section D, of Subsection 8, of the Act referred to.

The clause reads as follows:

“A permanent total loss of the use of a member is equivalent to the amputation of the member.”

Claimant contends that the case of Rutter vs. New Orleans Public Belt Railroad, 119 Sou., p. 877, is directly in point and authorizes us to award him compensation on the same basis as though the entire index finger had been removed.

In the Rutter case, two phalanges of the finger were amputated, and to that extent the injury in that case was identical with the one sustained by Landry, but it appears that in the Rutter case, that part of the finger that was left, to-wit: The stump, was rendered utterly useless and could not even be moved, voluntarily, by Rutter.

The surgeon testified that he had attempted to save the lost phalanges by suturing the flexor tendon to the periosteum, but that the suturing did not hold, and in consequence, the use of the stump was lost.

The Supreme Court, therefore, held that Rutter had lost the use of the entire finger because he had no control whatever over that portion that remained.

In the case before us, Landry has not lost the use or control of the stump of his finger, and in fact, the finger seems to be in just about the condition which may be expected of a finger, the .two phalanges of which have been removed.

Claimant contends that the stump is of no use to him in his trade. This is probably true and we cannot imagine that the stump of this finger can be of much help to claimant in attending to his work as a machinist, but the Statute does not provide for payment for the whole finger, merely because the remaining portion is of no use to the claimant in his particular kind of work, but only if he has sustained “a permanent total loss of that member.”

We frankly confess that we cannot imagine just what help the stump of a finger will be to anyone, in any trade, but the Statute plainly contemplates that such a remaining portion will have some use, and therefore, provides, as we interpret it, that so long as that portion which remains is able to be controlled by the claimant, he has not lost its use.

We are, therefore, of the opinion that claimant is entitled to recover only for the loss of two phalanges of the finger, or for sixty-five per cent (65%) of his wages for fifteen (15) weeks, and as he has been settled with on this basis, there is nothing more due him.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be and it is annulled, avoided and reversed and that there now be judgment in favor of plaintiff, and against plaintiff, dismissing this suit.

Costs to be paid by plaintiff.


author: ELLIOTT, J.

text:
    No. 438
    First Circuit
    DORE v. LEJEUNE ET AL.
    (May 7, 1929. Opinion and Decree.)
    Dennis T. Canaan, Jr., of Crowley, attorney for plaintiff, appellant.
    Chappuis and Chappuis, of Crowley, attorneys for defendant, Mathieu Pousson, Jr., appellee.
   ELLIOTT, J.

It is alleged to this court by Mathieu Pousson, Jr., defendant and appellee, by petition filed April 24, 1928, that A. B. Dore, appellant, has acquiesced in the judgment by him, herein appealed from, by voluntarily executing the same and that this appeal should for said reason be dismissed.

It is further prayed by said Pousson that this cause be remanded to the lower court in order that said acquiescence and execution may be established. And the court considering said petiton and the oath of said Pousson thereto attached, it is ordered that this cause be remanded to the district court in and for the Parish of Acadia as prayed for and that evidence be heard on said question in the lower court.

It is further ordered that a certified copy of said petiton to remand and of this order based thereon, be made by the clerk of said district court and that same be served on said Dore by the sheriff of the Parish af Acadia, together with a notice addressed to said Dore, informing him of the day, hour and place, to be fixed by the judge of said court, when the evidence on the question of acquiescence and voluntary execution on his part will be heard.

That the evidence introduced by both sides be reduced to writing and same, together with said record, said petition and this order, be returned to this court at Baton Rouge, La., within 30 days from this day to the end that said petition to dismiss may be acted on as the law provides.


text:
    No. 441
    First Circuit
    SOILEAU v. HILLYER-DEUTSCH-EDWARDS, INC.
    (May 7, 1929. Opinion and Decree.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   ELLIOTT, J.

Lawrence Soileau, an employee of Hillyer-Deutsch-Edwards, Inc., was badly injured while working in the woods on April 13, 1927, assisting in the operation of a steam skidder. The injury was sustained while performing service arising out of and incidental to his employment and in the course of his employer’s business. Both bones in plaintiff’s left ankle were fractured and broken, from which he alleges constant pain, resulting inability to do work of any reasonable character, and that he will not be able hereafter to do such work unless relieved by some kind of treatment or operation.. And if relieved in that way, there will still remain serious and permanent impairment in the usefulness of his ankle, knee, leg and foot, and of his nervous system, as a result of said injury.

He claims compensation at the rate of $8.75 per week, for 400 weeks, less weekly payments received, beginning the week of his injury and ending May 12, 1928.

The defense is that the plaintiff did not use his leg after his discharge from the hospital to which he had been sent by the defendant, as he was instructed to do. That such failure resulted in a longer impairment than would otherwise have re-suited, and a longer payment of compensation than he would have been entitled to otherwise. That compensation had been paid, up to May 12, 1928, at which time plaintiff had completely recovered. That he is not entitled to apy further compensation.

The plaintiff answered defendant’s appeal, and prays for judgment increasing his compensation up to the amount prayed for in his petition.

The real difference between the parties is as to whether plaintiff had fully recovered at the time his compensation was stopped; and if not, then to what further amount is he entitled.

The plaintiff testifies, and his statement is not disputed, that defendant, when making the last payment on May 12, 1928, told him through its agent that he had recovered and was able to return to work. Testifying in his own behalf as to his disability the plaintiff says that he was not able to commence work on May 12, 1928, as claimed by defendant. That he tried to fix some screens in a house during the month of June, but could not stand it and had to quit. That he next tried to help load some ties one evening in July, and the next morning his leg was swollen and pained him, remaining in that condition about two weeks, upon which he went to see Dr. Hargrove. That Dr. Hargrove gave him liniment to put on his ankle and told him that he was not able to work on it. Dr. Hargrove corroborates plaintiff. He says that plaintiff came to him in July, as plaintiff says he did. That he examined his ankle and told him he would have to rest, which meant that he should stay off his leg longer and give it further time before using it.

Plaintiff further testified, that his leg kept on hurting him after he saw Dr. Hargrove. That every time he went to work and walked on it a whole lot, it swelled up and pained him at night. That for the last three months before the trial he could only work, on an average, about half of his time, getting out ties, putting in two or three days a week. That he could not stand to do any more work because of his ,leg. That he makes from $2.00 to, $2.50 per day when working making ties. That he cannot do the work he was doing at the time of his injury, because that work required, a great deal of walking, getting over logs and moving about quick. That he cannot plow, because that requires too much walking. That his leg does not pain him much when he does not walk on it, unless he stands on it. That his leg was not swollen at the time physicians in the employ of defendant quit treating him, because at that time he did not walk on it.

The case was tried on October 22, 1928, which was about five months thereafter. Plaintiff, in response to questions as to ■his condition at the time of the trial, said:

“Q. What, if any trouble exists in your leg now?
“A. As soon as I walk my ankle doesn’t move like it should; it hurts below my knee; it is weak and I can’t use the leg at all.”

Plaintiff’s testimony on the question of inability is supported by that of several men who worked with him in getting out ties after defendant had stopped paying him. He is further and more strongly corroborated by several physicians, one of whom, Dr. Hargroye, had examined his leg in July, 1928, after he tried to resume work; and the others, for the purposes of the trial. He testifies that there is a large lump of callous formation on the lower ankle bone, the result of the injury, ■which will permanently limit the motion and function of the foot. That there was also at the time of the examination and trial evidence of arthritis in his ankle at the place where it was broken; that the ankle was swollen, and in its present condition was causing pain and trouble. That the ankle was weak as a result of the condition it was in; that the weakness of the ankle and the pain and trouble it was causing at the time of the trial would likely improve in the future, but he could not say when it would take place, nor whether it would entirely cease. That plaintiff’s left leg, as a result of the injury, was made a little shorter than his other leg; that the limited motion and function of' the foot was permanent and would not improve. That plaintiff’s condition constituted an impairment of his ability to do work, indefinite in point of time, that required much walking, standing or lifting. Several physicians gave testimony to the same effect.

Dr. Adair did not expect the irritation at the place of the break to -grow less without operative interference. Dr. Sanderson says, that the condition of plaintiff’s ankle causes him pain, for which there is no cure.

The physician in the employ of defendant who administered first aid to plaintiff, and who had examined him just before the trial, and two others, who had set and treated his limb at the hospital, and others who had examined plaintiff for the purpose of the trial, did not find any evidence of arthritis, and expressed the opinion that plaintiff had completely recovered the use of his leg and was able to perform the same work in which he was engaged at the time of the injury. The physicians could not agree, but the weight and the preponderance of the evidence is to the effect that the motion and function of plaintiff’s foot has been permanently limited and his left leg made a little shorter than the other; that arthritis exists at the place of injury; that the condition of his ankle is such that it is weak and causes pain; that the weakness and pain many disappear in future and may not.

It is shown that after receiving an injury of the kind received by plaintiff, manipulation, walking, standing and general use of the limb after the bones have united and the wound healed is necessary in order to get the best possible return of the member to its former condition. That such first use is generally accompanied by pain and soreness and sometimes by swelling. The use of the leg must be moderate and without heavy lifting.

The evidence justifies the conclusion, that when defendant stopped paying plaintiff compensation on May 12, 1928, it thereby practically compelled him to undertake employment in making ties for the support of himself and his dependent family. It is shown that he has no education, and the evidence indicates that he is not capable of performing any kind of labor, except manual labor. If there was any kind of employment open to him at the time, except making ties, the evidence does not show it. . Plaintiff had only partially recovered and the work of making ties aggravated the pain and weakness o'f his ankle, thereby retarding recovery. Defendant should not have made it necessary for plaintiff to commence such work so soon after his injury. Defendant is therefore not entitled to any credit nor reduction in the matter of payment, on account of labor performed by plaintiff in such a situation. It must pay compensation just as it should have done, and support the condition in plaintiff which it had produced.

The Act 20 of 1914, Section 8 (amended Act 85 of 1926) provides the compensation which must be allowed.

The plaintiff was receiving a weekly wage of $13.50 per week. Defendant has recognized his right to 65 per cent of his weekly wage, that is $8.77% per week, compensation, as a temporary total disability to do work of any reasonable character, from April 13, 1927, the date of his injury, to May 12, 1928, a period of fifty-six weeks, by paying same, and has therefore discharged its obligation to that extent.

The compensation paid amounts in the aggregate to $495.65. Defendant’s liability for further compensation is established. It is in fact established that plaintiff’s condition was such that he was unable to do manual work, such as getting out ties, for three or four months following May 12, .1928, and his compensation at the rate of $8.77% per week should have been continued said length of time.

The lower court found that plaintiff was entitled to ' compensation for 300 weeks. Prom • April 13, 1927 to May 12, 1928, a period of fifty-six weeks, he was regarded as a total disability to do work of any reasonable nature. Then from May 12, 1928, for a period of 244 weeks, he was regarded as a partial disability. The finding does not take into account the fact that his condition was such that he should he looked on as totally disabled for about four months following May 12, 1928. This fact, however, will be taken' into account in fixing compensation under paragraph 15. Plaintiff’s period of total disability was succeeded by a permanent partial disability, due to the fact that his left leg was left a little shorter than the other, and the motion and function of his foot permanently limited. In addition to this permanent condition his ankle was weak and arthritis existed in the injury at the time of the trial. This condition will likely improve, but the evidence does not enable us to definitely hold that it will, or will not. Neither can we estimate from the evidence when improvement will commence, nor to what extent it may take place.

We agree with the lower court that there will always be an impairment of the usefulness of plaintiff’s leg, and a resulting decrease of earning capacity.

The court held that: “The amount of compensation due is not measured by the provisions of the law as to specific injuries, as for the loss of a foot or leg, but by the general provision relating to loss of earning capacity. The only evidence on that question indicates a loss of about one-half capacity.” That was plaintiff’s estimate of the amount he had been, earning at the time when the condition of his leg was such that he should not have been using it to the extent done. However, we can use the same proportion for the purpose of our decree.

The court, applying to the case subsection (c) of Section 8 of the Act mentioned, fixed plaintiff’s additional compensation at the rate of $4.38 for 244 weeks, which amounts in the aggregate to $1067.75. This sum added to the $495.65 previously received makes a total of $1563.40. We do not think this amount can he allowed.

The injury was to plaintiff’s ankle, and the law provides that amputation between the knee and the ankle shall be equivalent to the loss of a foot.

The Act 20 of 1914, Section 8 (amended Act 85 of 1926), paragraph 15, provides that:

“In all cases involving a permanent partial loss of the use of function of the member mentioned herein above, compensation shall bear such proportion of the amounts named herein for the total loss of the member, as the disability of such member bears to the total loss of the member; provided that in no case shall compensation for an injury to a member exceed the compensation payable under this act for the loss of such member.”

The law provides: “For the loss of a foot, 65 per centum of wages during 125 weeks.” Now 65 per cent of a weekly wage of $13.50 for 125 weeks amounts to $1096.87. The $495.65 subtracted from $1096.87 leaves $601.22. The judgment appealed from allows plaintiff on account of his injury, more than can be done under the law on the subject. He is entitled only to the compensation that can be allowed him for the loss of a foot. For convenience in acting on the judgment appealed from, the further amount allowable will be made payable in installments as fixed in the lower court. The action of the lower court in fixing and taxing the fees of all the physicians as cost, sufficiently meets plaintiff’s demand on that subject. As for the hospital fees claimed by plaintiff, defendant has paid them and is therefore acquitted on that account.

Plaintiff’s demand in this court, in answer to defendant’s appeal, is refused.

For the reasons -stated, it is now ordered that the judgment herein appealed from, be and the same is hereby amended, reducing the total compensation allowed in addition to that paid, previous to the institution of this suit from $1067.75 to $601.22. That said $601.22 be paid to the plaintiff Lawrence Soileau by the defendant Hillyer-Deutsch-Edwards, Inc., in weekly installments of $4.38 per week. The first week to commence May 12, 1928, and continue weekly until the total of $601.22 has been paid in principal. Said installments to each draw legal interest from the time they were due until paid. In all other respects, the judgment appealed from is affirmed and made the judgment of this court. The parties may, acting with the approval of the lower court, agree on a lump sum settlement as the law provides.

The cost of this appeal to be paid by appellee.


author: LECHE, J.

text:
    No. 444
    First Circuit
    McILHENNY v. ROXANA PETROLEUM CORPORATION
    (May 7, 1929. Opinion and Decree.)

      Dymond and Levy, of New Orleans, attorneys for plaintiff, appellee.
    Burke and Smith, of New Iberia, and Alex F. Smith, of Shreveport, and Koerner, Fahey and Young, of St. Louis, Mo., attorneys for defendant, appellant.
   LECHE, J.

The present suit was brought to recover compensation for damages to plaintiff’s residence, alleged to have resulted from an explosion of dynamite at the hands of defendant’s agents and employees while making seismograph observations in the neighborhood of his home.

Plaintiff’s residence is situated on Avery Island in the Parish of Iberia, is practically new, having been built a little over one year previous to the time of the explosion. It is substantially constructed, covers a space of 113 feet long by 68 feet in width, and cost nearly ninety thousand dollars. Plaintiff says that the explosion which caused the damage took place on December 18, 1926, at 10:55 a. m., and he details the damages in substance as consisting of cracks in concrete walls and floors and also in the roof, partial destruction of a chimney on the west side and cracks in the cement walks and driveways three-quarters of an inch in width. He says that he obtained estimates of the cost of repairing these damages and that it will take twelve hundred and fifty dollars to pay for the same. The truth and accuracy of this statement is not challenged except as to the cause of the asserted damage. Mrs. Mcllhenny who was in the house at the time, says that the whole house shook and rocked so that she thought it was going to crumble, and she says that the noise was tremendous. Plaintiff was then in his office, in a building about 200 feet east of the residence, and he says that there was a tremendous detonation and a rocking of the building, that windows were broken, and that the explosion and rattling of the building was practically simultaneous.

It appears that Avery Island is a salt dome about 3,000 acres in area, that mining operations for salt are conducted about one mile from the house, and that in the course of these operations explosives are used, but plaintiff says that the charges are very small, and that he had never felt any virbations as a result of these blastings.

Defendant showed by the testimony of its employees that on December 18, 1926, at 11:05 a. m., it exploded a charge of 500 pounds of dynamite buried to a depth of six feet on the property of D’Albpr, nine and one-half miles from plaintiff’s residence, and that on the same day at 2:35 p. m., another charge of 500 pounds of dynamite was exploded in the same locality; that on the day previous, December 17th, at 4:35 p. m., a charge of 500 pounds was exploded in the same locality; and that on December 20th three charges were exploded also in the same locality, one of 500 and two of 600 pounds. It is strange that, if the explosion of 10:55 or 11:15 a. m. of the 18th of December, started by the employees of defendant, did the damage complained about by plaintiff, the other explosion of the 17th and the three of the 20th of December are not reported to have done any damage, although taking place in the same locality; that is, nine and one-half miles from the residence of plaintiff. ■

It also appears from the testimony of other witnesses who do not seem to be interested in the result of this case, that other houses, one of which was a two-story house constructed of brick, situated within the radius of a mile from these explosions were not affected thereby. Another apparently disinterested witness who resides a quarter of a mile from the place where the explosions took place, says that his house was not damaged and that the only damage he had ever heard of, was a broken pane of glass in his brother’s home, also situated a quarter of a mile from the seat of the explosion.

Dr. H. A. Wilson, director of physics of Rice University, Houston, Texas, an expert of great reputation, says that earth vibrations caused by the explosion of 500 pounds of dynamite, such as was used by defendant, at a depth of six or eight feet could barely be detected on a seisihograph situated nine or ten miles from the place of the explosion.

John N. Riley, sales agent for the Atlas Powder Company, practically experienced with the use of dynamite, believed that a charge of 500 pounds of dynamtie could be safely exploded at a distance of 800 feet from a building.

Jacob Barab of the Hercules Powder Company who had engaged in experiments and investigation in regard to explosives, said that 500 pounds of dynamite was an unusually small charge and believed that it would not damage buildings even at one mile. He further states that according to the “American Table of Distances,” adopted by the Interstate Commerce Commission in directing the handling of explosives, it would be safe to store 500 pounds of dynamite within 800 feet of a building. He is of the opinion that it would have been impossible for an explosion of 500 pounds of dynamite to cause damage to plaintiff’s buildings situated nine and one-half miles away.

R. H. Sumner, another expert, connected with the Dupont Powder Company, who has made a study of explosives, says that his company uses the American Table of Distances, which gives 800 feet as a safe distance to store 500 pounds of dynamite.

An expert in the use of the seismograph testified as to the sensitiveness of that instrument and says that a man walking within a distance of ten feet will cause such disturbance of the indicator as to render the record useless, that a truck passing a hundred feet away will cause a greater vibration than an explosion of 500 pounds of dynamite at a distance of nine miles. It seems that the seismograph amplifies the vibrations of the earth from two thousand to five thousand times and that the movement of the earth from an explosion of 500 pounds of dynamite at a distance of three and one-half miles, would be shown to be from the two-thousandth to five-thousandth part of a quarter of an inch, an almost negligible amount of motion.

Prom all this evidence it appears to us as unreasonable to conclude that the alleged cause of the damage to plaintiff’s home has been proved with any degree of certainty. The only circumstance that lends color to the correctness of the theory that the damage was caused by the explosions started by defendant’s employees and agents, is the almost simultaneous vibrations in point of time of the house and the explosion on the 18th of December, and yet no damage was done to other houses much closer to the seat of the explosion. Even plaintiff’s house is not charged to have been injured by other explosions, with the same and with larger quantities of dynamite from the same locality the day before or two days after the 18th of December.

The only statute which in our opinion, sanctions the cause of action in this case, is Article 2315 of the Civil Code. The other article of our Code, No. 667, founded on the well-recognized maxim “Sic utere tuo ut alienum non laedas,” does not seem to us to be apposite, for that article appears in that part of the Code treating of servitudes and regulating the use of real property as between neighbors. It reads as follows: “Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

On the other hand article 2315, found under the title of the Code “Of offenses and quasi offenses,” is couched in the following language: “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it. * * *” (See Act 159, page 270 of 1918, amending.) Here we find in clear and unambiguous language the creation of a cause of action in favor of one who has suffered damage against the person by whose fault it happened. Notice the language of the statute, which says, “by whose fault it happened.” The jurisprudence in this state, so far as we know, is uniformly to the effect that there must be fault, or negligence or a delict of some kind, or failure to perform some duty, and that such must be alleged and proved; that negligence is a conclusion to be drawn from the facts alleged; and that, while the specific word “negligence” need not be used, the facts alleged must be such as to necessarily imply negligence. See Neely vs. Orleans Metal Bed Co., 123 La. 1041, 49 So. 700; Jones vs. Texas & P. Ry. Co., 125 La. 542, 51 So. 582, 136 Am. St. Rep. 339; Brown vs. Orleans Gravel & Sand Co., 134 La. 1046, 64 So. 903; Hills vs. City of New Orleans et al., 139 La. 537, 71 So. 797; Boutte vs. New Orleans Terminal Co., 139 La. 945, 72 So. 513.

If, then, we assume that the damage to plaintiff’s home was caused by the explosion set by defendant, a fact which we do not believe to have been proved with any degree of certainty, and even if we further assume that the facts alleged by plaintiff-might imply fault or negligence on the part of defendant, we are furthermore of the opinion that the proof in the record does not sustain any implied fault or negligence by the defendant. Guided by its own experience in the use of dynamite for blasting, and relying on the experience of other experts, some of whom testified in this case, there is no ground to believe that defendants were guilty of an act which might produce the results alleged by plaintiff, or that it was guilty of failing to use due care in its blasting operations.

We believe that plaintiff has failed to make out a case against defendant, that the judgment appealed from should be set aside and avoided, and that his demand should be rejected at his costs, and it is therefore so ordered.


author: MOUTON, J.

text:
    No. 446
    First Circuit
    KRAUSSE-FOSTER CO., INC., v. RILEY
    (May 7, 1929. Opinion and Decree.)
    Moss and Siess, of Lake Charles, attorneys for plaintiff, appellant.
    Kitchell and Boudreaux, of Abbeville, attorneys for defendant, appellee.
   MOUTON, J.

This suit is brought against defendant on a promissory note for $825, subject to a credit of $175 on the principal and $62.82 on the interest. The note, it is alleged, was destroyed by fire December 1, 1925.

The defendant pleads payment in full, which was maintained below. Plaintiff appeals.

The note was given for a loan of money obtained by defendant from plaintiff company. A chattel mortgage was given by defendant to plaintiff on an Oldsmobile, also a $5,000 mortgage note on his home property at Gueydan as collateral, to secure the payment of the note.

The proof shows that the Oldsmobile was turned over by defendant to plaintiff company, by which it was sold for $650. The defendant testifies that it was agreed, when he delivered the car to plaintiff for sale, that if sold by plaintiff the proceeds would be applied to the note sued upon; and that when he paid the $175, which plaintiff alleges to have received, it was in full discharge of the balance due on his obligation. He says he made the payment by draft, and that plaintiff then returned to him the $5,000 note it had taken as collateral security. The contention of plaintiff is that when it rec'eived the Oldsmobile, the understanding was that the proceeds realized from its sale would he applied to the purchase price of a new car for defendant.

Hubert E. Foster, a member of plaintiff firm, says: That defendant told him to apply the proceeds of his car on the note, but that he refused to do so. He admits, however, that the $5,000 collateral security note was returned to defendant. He explains that by saying that the note so returned was secured by a second or third mortgage, and had no particular value.

The certificate of the clerk and recorder of Vermilion parish shows that this mortgage rested on four lots in the town of Gueydan. The defendant testified it was his home property, from which' it is but fair to infer that the mortgage had some value, and, if it had not, the question arises, why was it taken as collateral security by plaintiff?

There is also nothing to indicate from the certificate of the clerk, or from the record that the note was not secured by a first mortgage on the property. In explanation of this return to defendant of the $5,000 mortgage note, Foster testifies further that he gave it little attention, and felt that “Riley’s personal note was sufficient.” If so, it is rather difficult to understand why plaintiff company should have required, at the time of the execution of the note, a chattel mortgage on the Oldsmobile and in addition thereto the $5,000 mortgage as collateral security.

It is impossible to reconcile such an explanation with the natural promptings of self-interest, and the usual methods which govern the business world.

The defendant, it is shown, in a spirit of compromise sought to adjust his differences with the plaintiff. He explains that he was working for Hubert E. Foster’s father and that he was prompted to seek a settlement through fear of losing his position, but that he at no time admitted his indebtedness to plaintiff. He testifies that when he paid the $175, it was in full for the balance he owed, and that together with the $5,000 mortgage security, plaintiff returned to him the note in contest. He admits that he could not find this note, nor the check he had given for the $175 in full payment of the balance on his debt. He ascribes his inability to locate these papers to the fact that, after they had been issued, he had moved to New Orleans and Crowley, and had lost them in moving from one place to the other.

The district judge evidently accepted the explanation so given by defendant, sustained the plea of payment, and rejected the demand. The testimony of defendant is so strongly corroborated by the fact that the $5,000 mortgage note was returned to him, and the circumstances of the case to which we have hereinabove referred, that we are unable to find any error in this conclusion of fact by the trial court.

The judgment is therefore affirmed.


text:
    No. 452
    First Circuit
    GODCHAUX SUGARS, INC., v. FOLEY
    (May 7, 1929. Opinion and Decree.)
    Simmons and Simmons, of Napoleonville, attorneys for plaintiff, appellant.

      Guión and Upton, of New Orleans, attorneys for defendant, appellee.
   LECHE, J.

The plaintiff in this case is a large landholder, owning several sugar plantations adjacent to one another, situated near the town of Napoleonville in the parish of Assumption, right descending bank or west side of Bayou Lafourche. The defendant also owns a sugar plantation, which is completely surrounded in the rear by the plantations of plaintiff. During the high water of 1927, when the whole country, and especially the cultivated lands of plaintiff and defendant, were menaced with disastrous floods from the swamps in the rear of these places, great fear was entertained by the owners that these plantations would be entirely submerged by. back waters, and the growing crops thereon entirely destroyed. It was during these panicky days that a contract is alleged by plaintiff to have been entered into by defendant and itself, whereby it was agreed that a protection levee would be built and kept in repair on the Poley plantation of plaintiff, for the protection of the crops of plaintiff and defendant from the back flood waters, and that the cost of building and repairing said protection levee and operating a pumping plant for drainage would be borne by both parties in proportion to the acreage of cultivated lands to be protected. This agreement is said to have been verbal. Plaintiff further sets forth that the protection levee was built and repaired, and the pumping station operated, at a cost paid by itself, and that the proportionate amount due by defendant is the sum of $674, less one pay roll paid by defendant, in the sum of $155, leaving a balance due to plaintiff, amounting to $519, for the recovery of which it instituted the present suit.

Defendant’s answer denies that defendant made any such agreement, except to the extent that, in the event it would become necessary to operate the drainage pump, he would pay such proportion of the costs of operation as his cultivated acreage thereby protected might bear to the protected acreage cultivated and owned by plaintiff.

The district judge, after hearing the evidence, believed that plaintiff had failed to make out its case and rejected its demand. Plaintiff has appealed.

Walter Godchaux, manager of plaintiff company, testified substantially that the contract upon which the suit is based was entered into by himself, acting on behalf of plaintiff, and by the defendant personally, about May 23, 1927, while they were discussing the apparent danger of overflow then threatening the destruction of their crops. Willard Foley, the defendant, also testified and remembered that he had met Godchaux on the date mentioned and that they had discussed the advisability of taking steps to protect their property against a peril, which, according to the forecasts of United States government experts, seemed imminent. The parties, however, are far apart in their understanding of what took place at this interview. They had a common interest in keeping the flood waters off their lands and they each were also actuated by that friendly feeling that always arises between fellow sufferers in distress. Foley’s version of the conversation is that he readily offered to assist with his plantation laborers in repairing and maintaining the protection levee in the rear of plaintiff’s plantations, and that the only obligation he assumed was to pay his pro rata of any expense that plaintiff might undergo in operating the drainage pump in- case of necessity. It seems that the rainfall was so light that Godchaux himself testified that the drainage was not interfered with and that the amount actually so expended was negligible.

We are then confronted with a situation where two reputable gentlemen of equal unimpeachable character differ materially as to what took place in an important business interview, and the only logical conclusion to be drawn is that there was a serious misunderstanding between them. It is true that an overseer named Acosta was present or near the parties when they met, but his testimony is of little value in determining the real gist of the conversation. The manner in which the work of protection was carried on in combat-ting the threatened overflow certainly seems to confirm the idea of a complete misunderstanding between Godchaux and Eoley. It was impossible to fUretell what the expense of the undertaking might amount to, and yet neither party consulted the other as to what he should contribute. Plaintiff used its force of laborers and defendant did likewise, each keeping account of its own pay roll. The amount of $155 which plaintiff credits to defendant in making out its claim was never paid by defendant to plaintiff, but represents an amount which defendant paid to his own laborers while building and repairing plaintiff’s protection levee. The amount of this pay roll was ascertained by plaintiff through one of its employees, who asked for this information from defendant. So that the credit thus given by plaintiff is in no wise an acknowledgment of any indebtedness on the part of defendant.

The trial judge believed that the case is. only the result of an unfortunate misunderstanding and he rejected plaintiff’s demand. We believe his finding is correct.

The judgment appealed from is affirmed.


author: REYNOLDS, J.

text:
    No. 3465
    Second Circuit
    HINES ET AL. v. MEREDITH
    (May 8, 1929. Opinion and Decree.)
    Shotwell and Brown, of Monroe, and Y. M. Mouser, of Columbia, attorneys for plaintiffs, appellants.
    C. P. Thornhill, curator ad hoc, of Columbia, attorney for defendant appellee.
   REYNOLDS, J.

This was a suit to revive a judgment. The petition was filed and citation issued September 9, 1926, five days before the prescriptive period had run. The sheriff returned on the citation: “Not being able to find party, personal service could not be made.” On September 14, 1926, two days before the ten years from the date of the judgment had expired, plaintiffs filed a supplemental petition wherein they alleged that defendant was concealing himself to avoid being cited, that a writ of attachment was necessary, to protect their rights in the premises, and that a curator ad hoc to represent the defendant should be appointed.

A writ of attachment was issued and certain movable and immovable property belonging to defendant was sized, and an order was signed appointing C. P. Thorn-hill, an attorney at law, curator ad hoc to represent the defendant.

On September 17, 1926, C. P. Thornhill filed a motion that the order appointing him curator ad hoe be rescinded, alleging that the appointment was inadvertent because it was not alleged in the petition that the defendant was absent from the state, or that he was an interdict and without a curator or a minor and without a tutor. The motion was overruled.

On October 18, 1926, C. P. Thornhill filed a motion wherein he declined to accept the appointment as curator ad hoc and asked the court to rescind the order appointing him such and discharging him from responsibility in the premises. This motion seems not to have been passed on.

The curator ad hoc thereupon moved to dissolve the writ of attachment and release the seizure on the grounds:

(1) That the allegations of the petition were insufficient to authorize the issuance of the writ.

(2) That at the time the citation was in the sheriff’s hands he was in the parish of Caldwell and that it was a matter of common knowledge that he was and that the allegation that he was concealing himself to avoid citation was false.

(3)That the property seized constituted the defendant’s homestead and was exempt from seizure.

And he asked that a fee of $100 be allowed the curator in the premises.

The motion was tried and judgment rendered dissolving the attachment and releasing the seizure and fixing the fee of the curator ad hoc at $50 and taxing the plaintiffs with the costs.

Prom this judgment the plaintiffs appealed and the curator ad hoc has answered the appeal and asks that his fee be increased to $100.

OPINION.

We find it unnecessary to consider the contention that the allegation that defendant was concealing himself to avoid citation was insufficient to authorize the issuance of the writ of attachment, as in our opinion the evidence failed to establish the truth of the allegation, and therefore the attachment was dissolved and the seizure released properly.

Plaintiffs have not appeared in this court, nor favored us with a brief pointing out wherein the judgment appealed from is erroneous, and we have not ourselves been able to find any error in it. ply Co. vs. Whittington, 7 La. App. 737; McClanahan vs. Hodges, 8 La. App. 326.

“The burden rests on the appellant to show that the judgment appealed from is erroneous. * * *” Swift & Co. vs. Parker Grocery & Peed Store et al., 10 La. App. 468, 121 So. 322.
“Where a case is submitted without brief or argument and the record apparently sustains the findings of the trial court, the judgment will be affirmed.” Cayton vs. Redman, 4 La. App. 451; Meriwether Sup-

We do not favor the increase in the fee of the curator ad hoc, for the reason that the value involved in the controversy was only $500 and the trial judge was of opinion that the amount allowed was reasonable compensation for the services rendered by the curator ad hoc under the circumstances.

We find no error in the judgment appealed from, and accordingly it is affirmed.