text:
    No. 3758
    Second Circuit
    THOMAS v. SHREVEPORT RAILWAYS COMPANY
    (April 10, 1930. Rehearing Refused.)
    (March 24, 1930. Opinion and Decree.)

      Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Thelma Thomas, the daughter of plaintiff, became a passenger on one of defendant’s street cars at Kings Highway and Southern avenue, for transportation to her home at Sixty-Eighth street and Southern avenue in what is known as Cedar Grove.

It is alleged that plaintiff’s daughter, upon arrival of the street car at her destination, proceeded to alight therefrom, and, while attempting to do so, stepped upon a rock, stone, or other obstacle with her left foot, causing it to slip and turn, severely spraining the ankle, muscles, ligaments, and tendons thereof, and cutting, bruising, and lacerating her right leg, and that the accident and injuries . complained of were caused by the defendant in negligently failing to provide a safe place for passengers to alight from its cars at Southern avenue and Sixty-Eighth street.

Plaintiff claims damages for himself in the sum of $40, for drugs and medical fees, and for the use and benefit of his daughter, Thelma, in the sum of $2,500, for physical pain, mental anguish, and permanent injuries.

Defendant admitted the relation of carrier and passenger, as alleged, and denied all other allegations. It denied that the landing place was unsafe, as alleged, and denied that plaintiff’s daughter was injured while attempting to alight from the street car, and alleged that she alighted safely and was injured after taking several steps. It further alleged, in the alternative, that the young Udy was familiar with the landing place and was injured through her own negligence, that the condition and situation of the landing place was apparent to the injured party, and that she was guilty of contributory negligence in failing to use ordinary care and reasonable diligence in observing the situation before undertaking to step or walk, and that said contributory negligence bars her recovery.

The case was tried in the district court by a jury, and judgment was awarded plaintiff in the sum of $40 for himself and in the sum of $650 for the use and benefit of his minor daughter, Thelma. Motion for new trial was urged and overruled by the district judge. Prom that judgment defendant has appealed, and plaintiff has answered the appeal, asking this court t.o increase the judgment to the amount originally prayed for.

There are two questions of fact to be decided in this case:

(1) Did Thelma Thomas fall while in the act of alighting from the street car and not after safely alighting?

(2) Was the landing place provided by defendant an unsafe landing place for Thelma Thomas and other passengers alighting from the street car?

The jury, having for its particular duty that of determining issues of fact, decided both questions in the affirmative, and the trial judge refused a rehearing in the case, thereby adding his judgment to that of the jury. Appellate courts are reluctant to reverse a judgment based upon the finding of a jury, unless the preponderance of the evidence indicates that the jury’s findings are clearly erroneous.

The record in this case consists of four hundred pages, a great deal of which pertains to uncontroverted issues, and it would be an endless proposition to discuss in detail the evidence in the case. It suffices to say that, on the first question necessary to be determined, the evidence is somewhat conflicting. However, the preponderance is with the plaintiff, and we see no error in the finding of the jury on that issue. Thelma Thomas was in the act of alighting from the street car when she fell.

The second question is more involved, and the facts are as follows: The defendant company constructed its street car line through the city of Cedar Grove before the same was incorporated, and in the year 1924 or 1925 th'e village decided to pave Southern avenue, and defendant was called upon to pave the eighteen-foot strip supposed to be covered by its right of way grant from the police jury, and some objection was raised to this by defendant. The village proceeded to pave and did pave the street on both sides of defendant’s right of way, extending nine feet on each side of the street, and leaving the eighteen-foot strip occupied by defendant and on which it had its street car tracks in the center. After this paving was completed, there was some kind of a compromise agreement made between the city of Cedar Grove and the defendant company, which is not made plain by the testimony, and the city passed an ordinance ordering that the eighteen-foot space on Southern avenue not paved to be paved with limestone rock to a depth of eight inches with a topping of finer aggregate, and ordering defendant company to pave that part of said space occupied by its main track as located after removal to the center of the street and also that part occupied by its switches, side tracks, and turnouts as at present located. The tracks at the time the ordinance was passed were not in the center of the eighteen-foot space, but were later moved to the center of it.

By authority of this ordinance, dated January 12, 1925, the defendant company proceeded to pave said strip of eighteen-foot width by filling it with .crushed rock and placing on top a smaller gravel. No other binding was used. The job when complete was very unsatisfactory to residents of Cedar Grove. The crushed rock used was entirely too large for the purpose, and when automobiles drove over this part of the street, the rocks would fly and were constantly breaking out window panes in the houses along Southern avenue, and after every rain the rocks would wash onto the pavement and sidewalk in great quantity, necessitating the removal thereof.

The theory of the plaintiff is that the smaller gravel placed over the large crushed rock would act as a binder, and, when the rain fell and traffic passed over this section of the street, the rock would cement together and make a solid even surface. However, the great preponderance of the testimony, including among the witnesses the last two mayors and the last city judge of the city of Cedar Grove, is that what was intended was never accomplished, and that rain washed the smaller gravel away or caused it to sink below the level of the large rock, leaving a surface of large crushed rock ranging in size from one-inch in diameter to as large as a man’s fist, without anything to bind them together. This was the condition of the landing place where Thelma Thomas alighted from the car at the time of the accident complained of here. Plaintiff offered in evidence a quantity of the rocks as an exhibit. This exhibit was placed before a number of witnesses, fifteen in all, who testified that the exhibit was a fair representation of the landing place at Sixty-Eighth street and Southern avenue in October, 1928, the landing place complained of on that date.

The preponderance of the testimony is that one looking down at the ground before alighting from the car would see nothing but rocks, loose rocks, varying in size, as before stated; that there was no way of knowing whether one rock or another would turn when stepped on, as they were of the different shapes one might expect of crushed rock; and that the landing was unsafe and dangerous and one would have to be exceptionally careful and easy in stepping onto said rocks.

Mr. Wynn and his wife, who operate a filling station on this corner, testify that other people have fallen at this place. However, the defendant company, through its claim agent, shows that it never had to pay a claim or had a claim reported to it because of some one falling in alighting from a car at this point.

Defendant offered in evidence pictures taken of the location to show the true condition of the street at the corner of Sixty-Eighth street and Southern avenue. However, these pictures were taken about six months after the accident, and the testimony shows that the street at this point had been greatly improved since the accident. The pictures were taken at a distance of from fifty to one hundred feet, and the photographer who made the pictures testified that, in order to show the true size of the rocks, the camera would have to be within eight or ten inches of the rocks.

The jury found that the condition of the street was as alleged by plaintiff, and that the landing place was as shown by the exhibit of rocks introduced in evidence and was unsafe. We find no error in their finding on that issue.

Defendant relies on the case of Carroll vs. N. O. Ry. & L. Co., 132 La. 683, 61 So. 752, in which the court said: “The Railway was bound to keep the street in good * * * repair for one foot on. each side of its rails,” and this depression, was several feet away from the rails. The; place “was a reasonably safe place, as. shown by the fact that many persons had; made use of it without incurring harm»”'

That case is distinguished from this in that' the plaintiff in the Carroll case alighted safely from the car and walked several steps before stepping in a hole in the street, had requested to get off at a place that was not a regular stopping place, had walked rapidly in the dark over unpaved streets in which ruts, holes, and depressions might be expected in the winter time, and the franchise of the company expressly provided that the company was to keep the street in repair only one foot on each side of its rails. There is no such express statement shown to be in the franchise of the defendant here. There the court held that the plaintiff did not use ordinary care, and that the accident was due to her failure to look. That cannot be charged to plaintiff’s daughter in this case.

Defendant also relies on Clogher vs. N. O. Ry. & L. Co., 143 La. 85, 78 So. 247, wherein the court held that, if the plaintiff had used precaution and looked where she was stepping, she would not have been injured. The step was sixteen inches above the roadway, so a passenger might alight by extending his foot seven inches out and stepping down. The plaintiff in the Clogher case was guilty of want of precaution and thereby guilty of contributory negligence. She had a safe place to land if she had looked. Thereby that case is distinguished from the case on trial; for in the case before us the landing place looked as safe at one spot as it did at another.

' Freeman vs. N. O. Public Service, 1 La. App. 600, was decided on the authority of the Clogher case. There was no claim in the Freeman case that the plaintiff slipped on alighting from the car. In that case the ground was level and the step about four or five inches higher from the ground than at regular stopping place. There was no contention that the landing place itself was not safe. It was level ground.

Bass vs. Ill. Cent. R. R. Co., 4 La. App. 175, relied on by defendant, is not in point. The question in that case was: Was there sufficient light of the steps and of the platform. The court decided the issue of fact in favor of the defendant.

Gaisser vs. N. O. Public Service, 6 La. App. 139, is another case cited by defendant. There the court held that the plaintiff did not take proper precaution, and said :

“While the height of the steps from the ground made it inconvenient to reach them from the ground they were not accompanied with any danger, which is the essential element of fault. A passenger could have put his foot from the street upon the neutral ground, a distance of only seven inches, and thus have divided the distance to the step. * * * But the plaintiff was encumbered with packages and tried to elevate herself from the street to the step directly, a distance of 23% inches.”

In the case before us, all places on the ground looked alike, and there was no matter of choice, only a matter of chance.

Harang vs. N. O. Public Service, 9 La. App. 91, 119 So. 86, is another case in which the plaintiff could have looked where he was stepping and have avoided the accident. He did not use proper precaution, and the court rejected his demand. If.he had used proper precaution, he would have stepped onto pavement instead of stepping in groove of rail.

In Wagner vs. N. O. Public Service, 9 La. App. 699, 120 So. 72, cited by defendant, the court said:

“We are entirely unable, however, to agree with plaintiff that the point at which she was invited to disembark was unsafe. The evidence, and particularly the nictures of the street, convince us that the place at which the car stopped was reasonably safe, and that any ordinarily prudent person could have alighted there with absolute safety. Plaintiff is an unusually stout person, and was wearing shoes with very-high heels, and it seems not at all improbable that there was some causal connection between her fall and these high-heeled shoes. In any event, the street on which plaintiff alighted ig as good as is ordinarily found, and was certainly sufficiently safe to relieve defendant of responsibility. A railroad company is not liable to furnish a concrete pavement, or a wooden platform, but only such an alighting point as is safe for the ordinarily prudent person.”

The rule of law announced in that case is sound, but the present ease is distinguished from the Wagner- case in that the evidence in the present case convinces us that the place at which the car 'stopped was not reasonably safe and an ordinarily prudent person could not have alighted there with absolute safety. Therefore the converse of the rule laid down in the Wagner case is equally sound.

“Defendant’s obligations, as a carrier, require that it shall carry its passengers safely, unless prevented by some act of God or vis major of man, and shall provide them with a safe place of exit; but, in this instance, though it provided the place, the place was unsafe, which was worse for the passenger than if no place had been provided, and defendant is liable, in damages, for the consequences to plaintiff, who, as a passenger, was thereby injured.” Hamilton vs. La. Ry. & Nav. Co., 147 La. 622, 85 So. 611, 613; Turner vs. V., S. & P. Ry. Co., 37 La. Ann. 648, 55 Am. Rep. 514; LeBlanc vs. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303.

A carrier is bound to exercise the strictest diligence in receiving a passenger, conveying him to his destination, and setting him down safely, as the means and circumstances of the case will permit. Hopkins v. N. O. Ry. & L. Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362; LeBlanc vs. Sweet, supra.

“The contract between (a common carrier and its passengers) is one which, from time immemorial, has imposed upon the obligor exceptionally severe obligations. Safe carriage is not merely an incident of the contract, but it is its very direct object.” Patton vs. Pickles, 50 La. Ann. 864, 24 So. 290, 293.

“Negligence of a common carrier includes its negligence in all the departments of its undertaking.

“The passenger, is not relieved of all obligation as to his own safety, but unlike the carrier, he need not exercise the highest degree of care. He is bound to exercise only ordinary care and prudence to preserve himself from injury.

“The standard by which to determine whether or not an adult passenger has failed to exercise the proper degree of care is whether a person of ordinary prudence in the same situation, and having the knowledge possessed by the passenger, would have done or omitted to have done the alleged negligent act. The passenger has the right to rely confidently on the care and watchfulness of the carrier to make all things sate for his transportation, with its incidents.” Clerc vs. Morgan’s L. & T. R. R. & S. S. Co., 107 La. 370, 31 So. 886, 90 Am. St. Rep. 319.

“It is sufficient for a passenger suing on a contract for safe passage to show that he was not set down safely at his destination to throw the burden of explanation on the carrier, and it is for the carrier to prove what negligence and whose prevented the fulfillment of the contractual obligation.” Hopkins vs. N. O. Ry. & L. Co., supra.

In the case of LeBlanc vs. Sweet, supra, the court said:

“There is a broad difference, between the obligations of a carrier tea passenger and his obligations to a third person complaining of tort; the burden of proof in the latter case, save where otherwise provided by statute, resting upon the claimant to establish both the injury and the negligence which caused it, whereas in the former case it is sufficient, in order to throw the burden of explanation on the carrier, for the passenger suing on a con tract for personal carriage to establish the contract, and to show that he has not been safely set down at his destination. It is then for the carrier, and not the passenger, to show what negligence, and whose, prevented the fulfillment of the contractual obligations of the carrier.”

The defendant alleges in the alternative that plaintiff’s daughter was familiar with the landing place, having used same in boarding and alighting from the cars for several years, and that she failed to observe ordinary care before stepping off the car. This is the most serious defense to the case.

Thelma Thomas was familiar with the landing place and had used it a great number of times during the previous two or three years in going from her home to school and returning, and she knew that the street was a street of rocks, and by using care she had never before been injured, and it is not shown that she did not use the same caution on this occasion.

The defendant was also familiar with the landing place. It is shown that the president of defendant made weekly trips over the entire line for the purpose of inspection, and that its construction foreman made daily trips over the entire line for the purpose of observing the condition of the line. The defendant had built the street on which this landing place was and in fact was responsible for its condition from the beginning. We do not think the defendant should be allowed to construct a dangerous landing place and invite the public to use it, it being a regular stop in a. populous part of Cedar Grove, where many passengers alight, and get on the car, and then say to the public, “You use this landing place at your own risk.” It would take a rather broad application of the law of contributory negligence to cover such a ease.

The burden is on the carrier to establish affirmatively the contributory negligence of the passenger. Buechner vs. New Orleans, 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455; Boutte vs. N. O. Terminal Co., 139 La. 945, 72 So. 513; Aymond vs. Western Union Tel. Co., 151 La. 184, 91 So. 671; Hopkins vs. N. O. Ry. & L. Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362.

We do not think the defendant has established contributory negligence on the part of plaintiff’s daughter, Thelma Thomas.

She sustained a sprain of her left ankle and bruises and laceration of her right leg. The injuries to the right leg were slight and amounted to very little, only scraping the skin off as her leg dragged against the bottom step of the street car. She was confined to her home in bed for three days and to the house for possibly a week after leaving the bed; she then used crutches for a few days, and returned to school in two or three weeks after the accident. Several doctors have testified that she has a weak ankle due to the sprain, and that some ligaments are torn loose, and that she will be more susceptible to sprain in that ankle in future than she was prior to the accident, and that the injury is permanent in that respect.

It was over a year after the accident when the case was tried in the lower court, and at that time she was attending school regularly and working at Kress’ store on Saturday, standing on her feet all day. She has not received any other sprain since the accident, and, while she complains that after standing all day on her feet her ankle swells and gives her some pain, it is shown by her own doctor that, when he examined her, both ankles were swollen, which would lead us to belieye that the swelling was possibly caused from some other source than the accident, as only one ankle was injured when she fell from the car. She does not limp when walking, and gets about as any other girl. The jury had the opportunity of seeing the young lady in court and of observing her during the trial which lasted for four days, and we feel sure they awarded her damages in the amount they felt she was entitled to, and we can find no good reason for disturbing their findings.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed; cost of appeal to be paid by appellant.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3595
    Second Circuit
    HAYS v. BRANTLEY
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)
    Goff & Barnette, of Arcadia, attorneys for plaintiff, appellee.
    J. Rush Wimberly, of Arcadia, attorney for defendant, appellant.
   ODOM, J.

The plaintiff was driving his Ford coupe south on a public road running from Arcadia, La., and, when about three miles out of town, he met an automobile being driven by the defendant, Brantley. The two cars collided, causing injury to plaintiff’s car, for which he brings the present suit.

Herschel W. Pruett was riding with plaintiff in the car at the time and was injured, and brought suit against the defendant for personal injuries — the suit being styled “Herschel W. Pruett v. Joseph B. Brantley,” which case is also before this court on appeal, and we have this day decided it and handed down the opinion (127 So. 2). As the facts and circumstances in the Pruett case are identical with those in the present case, it is unnecessary to here detail them again. In the Pruett case, we held that the collision was due to the fault and negligence of the defendant, Brantley.

The plaintiff offered in evidence, in this case, a detailed • statement made out by an automobile mechanic showing that it would cost for parts and labor, $209.25, to repair plaintiff’s car. He alleged and swore that if the repairs designated were made to the car, it would still be worth $100 less than before the damage. The car cost him, new, $558 and had been used for only a short time. Plaintiff testified that he did not have the money to have the repairs made and was, therefore, .forced to sell it in its then condition for $212. Considering that the car at the time of the injury was worth as much as when new, he lost $346 by the transaction. The district judge allowed him $309.25, and we think that judgment does substantial justice.

Plaintiff alleged in his petition that he had paid out $209.25 to have the car repaired, and on trial it developed that he had not in fact paid anything, but had only gotten an estimate on what it would cost to repair the car. Defendant objected to any testimony showing what it would cost to repair the car for the reason that plaintiff had alleged that he had actually paid the above amount to have the car repaired. The district judge permitted the testimony to go in, and, under the circumstances, we have considered it. The fact that the money was not actually paid for the repairs is no reason why plaintiff should not recover for the damage to his car, which he proved.

For the reasons here assigned, and for the reasons set out in the case of Herschel W. Pruett vs. Joseph B. Brantley, numbered 3606 on our docket, this day decided, it is ordered and decreed that the judgment appealed from in the present suit be affirmed, with all costs in both courts.


author: WEBB, J.

text:
    No. 2686
    Second Circuit
    WILLIAMS v. COLEMAN ET AL.
    (April 10, 1930. Opinion and Decree.)
    T. H. McEachern, of Homer, attorney for plaintiff, appellant.
    William C. Boone, of Homer, and J. Rush Wimberly, of Arcadia, attorneys for defendants, appellees.
   WEBB, J.

In this action plaintiff, W. A. Williams, alleged that certain real estate owned by him had been seized by John W. Coleman, sheriff, in execution of a judgment rendered in the cause of J. L. Burdine vs. W. A. Williams (plaintiff here) and W. M. Smith, and that the property had been advertised for sale. He further alleged that the judgment was null and void for the reasons that it was obtained on insufficient evidence, without the knowledge of plaintiff, W. A. Williams, through fraud and misrepresentation, and on evidence that was false and untrue, and that, in order to conserve his rights, it was necessary that a writ of injunction should issue restraining the sale. He further alleged that he had been compelled to employ an attorney at an expense of $75, and plaintiff prayed for the issuance of a rule nisi against J. L. Burdine and the sheriff to show cause why a writ of injunction should not issue, and that on final trial the judgment be annulled, and that he have judgment against defendants for $75, damages for the illegal issuance of the writ of execution, and maintaining the writ of injunction.

The rule nisi was issued and a preliminary injunction granted, and defendant answered, admitting that the property seized was owned by Williams, the seizure of the same by the sheriff, under execution issued on a judgment held by Burdine against Williams and Smith, and that it had been advertised for sale, and otherwise denied plaintiff’s allegations.

On trial judgment was rendered rejecting plaintiff’s demands and he appeals.

The judgment for $90.66 was rendered on default under the provisions of Act No. 47 of 1922, providing for the method of procedure in district courts in cases in which the district courts have concurrent jurisdiction with justice of the peace courts, and defendant did not have any right of appeal from the judgment to this court (section 29, art. 7, Const.); and the appeal by defendant from the judgment rendered in the suit to annul the judgment presents a question: relative to the jurisdiction of this court.

There are many cases in which the question of the right to appeal to the Supreme Court from a ■ judgment rendered in an action to annul a judgment, where there was not any right to appeal to that court from the judgment sought to be annulled, has been considered; and the rule in cases where the action to annul the judgment is by a party defendant is that appellate jurisdiction of the action cannot be vested in the Supreme Court by engrafting on the action in nullity a demand for damages, contingent and dependent on the annulment of the judgment. Strain’s Heirs vs. Lyons, 114 La. 646, 38 So. 483; also Cushing vs. Sambola & Ducros, 30 La. Ann. 427; Denegre vs. Moran, 36 La. Ann. 425; Marshall vs. Holmes, 39 La. Ann. 313, 1 So. 610, 612; Lhote vs. Church Extension Society, 115 La. 487, 39 So. 502.

This court being without jurisdiction to have reviewed the original judgment which is sought to be annulled, and the amount of the judgment sought to be annulled not being sufficient to vest this court with jurisdiction, we are of the opinion that the rule applicable as to the Supreme Court is applicable here, and that the claim for damages, which is obviously dependent on and incidental to the main demand for the nullity of the judgment, did not vest this court with jurisdiction of the action to annul the judgment.

It is therefore ordered that the appeal be dismissed, at appellant’s cost.


author: DREW, J.

text:
    No. 3747
    Second Circuit
    INTERNATIONAL HARVESTER CO. OF AMERICA, INC., v. SHREVEPORT NU-GRAPE BOTTLING CO., INC. B. A. BASS, Intervener and Third Opponent
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)
    Dickson & Denny, of Shreveport, attorneys for plaintiff and defendant, appellee.
    Harry V. Booth, of Shreveport, attorney for intervener, appellant.
   DREW, J.

On June 16, 1927, the International Harvester Company of America and others filed petition as creditors of the Shreveport Nu-Grape Bottling Company, Inc., alleging that the defendant’s property had been abandoned, and praying for a receiver to be appointed to operate the defendant company as a going concern. A receiver was appointed and operated the bottling plant for a period of practically one year. On June 16, 1928, the receiver, by petition to the court, set out the necessity for selling the property of the defendant company to pay debts, and on June 29, 1928, judgment was signed ordering the property sold to pay the debts. On July 12, 1928, B. A. Bass filed a petition of intervention and third opposition, alleging that on or about February 19, 1925, he had entered into a contract with W. D. Glass-cock, M. E. Glasscock, G. N. Evans, and B. C. Clardy, whereby intervener agreed to construct a building to be located on lots Nos. 1262 and 1263 of Cedar Grove addition to Caddo parish, La., and in consideration thereof the parties last named agreed to form a corporation, which corporation was to lease said premises for a period of five years, beginning March 15, 1925, for the agreed stipulated rental of $90 per month, payable monthly, in advance, on the 15th of each month; that the building was erected, and the parties above named formed and executed a corporation known as the Shreveport Nu-Grape Bottling Company, Inc., said corporation going into possession of said building under the above agreement; that the corporation kept and performed the obligation of the incorporators thereof under the agreement until said corporation was placed in the hands of a receiver; and that said receiver had met the terms and paid the rentals under said contract since the occupancy of said premises.

Intervener further alleged that said agreement contained a stipulation and obligation on the part of intervener that he should execute a formal act of lease to the corporation after its execution, according to the terms of the agreement; that he offered to execute such a lease to the officers of the corporation subsequent to the formation of the corporation, but that said officers declared the execution of such lease was unnecessary. He further alleged that twenty months’ rent under said contract remains unpaid and due, and prayed for judgment for $1,800, and for recognition of his lessor’s lien and privilege, and that he be paid said amount out of the proceeds of the sale of the property- of defendant company in preference to all other persons.

The funds were ordered held by the receiver until further orders of the court and pending final judgment in this suit.

The receiver filed an exception of no right or cause of action which was tried and overruled. There was no answer to the appeal, and therefore that exception is not before us.

On February 12', 1929, intervener filed an amended and supplemental petition wherein he alleged that the principal purpose of the corporation was manufacturing soft drinks, to be sold at wholesale; that the parties who entered into the agreement with him were the incorporators and only subscribers to stock of the corporation, and that said corporation kept and performed the obligations of said incorporators, and in return accepted the benefits flowing from said contract; and further alleged ratification and acquiescence in the contract by the corporation; that said contract was at all times relied upon and acted upon by the corporation and intervener. He alleged that the receiver at the time he took charge of the premises well knew of the contract for a five-year lease and acted thereon in paying the rent for one year, thereby acquiescing in the contract with full knowledge of the existence of said agreement. He amended his prayer, and (prayed for the sum of $1,449.44.

in exception of vagueness was filed by the receiver, which was overruled; there has been no answer to the appeal, and the exception is not before us.

The answer of receiver is a general denial, alleging that he used said premises on a month-to-month lease, and has never consented to occupy the building on any other kind of lease, and that he has paid more than twelve months’ rent. He alleges in reconvention that he paid back rent of the corporation to the amount of $280, which amount he prays to recover in reconvention.

The lower court rendered judgment rejecting intervener’s demands; it is silent on the reconventional demand, which amounts to rejection. From this judgment intervener appealed, which appeal has not been answered by the receiver therefore only the main demand of intervener is before us for decision.

Intervener applied for rehearing in the lower court before taking appeal, and, in overruling the application, the judge of the district court rendered a written opinion. We have given careful study to this opinion.

The following agreement was entered into and is the basis of this suit:

“This agreement, made and entered into this 19th day of February, 1925, by and between B. A. Bass, of Cedar Grove, Louisiana, party of the first part, and W. D. Glasscock, M. E. Glasscock, G. N. Evans and B. C. Clardy, all of San Antonio, Texas, parties of the second part, witnesseth:
“That the party of the first part hereby agrees to erect on the lands and premises hereinafter described, a building in accordance with the plans and specifications hereto attached and made a part hereof. That the walls, roof and floor of said building shall be completed by the 15th day of March, 1925, and be ready for the installation of machinery therein on said date. That said building shall be connected with the sewer system, gas and electric lines and water system of the city of Cedar Grove, Louisiana, by said first party and shall be completely finished and ready for occupancy on'the 25th day of March, 1925.
“The land on which said building is to be erected is the forty-foot strip across the north ends of Lots numbered 1262 and 1263 between 70th and 71st Streets, and said building is to front on Southern Avenue, situated in the said City of Cedar Grove, state of Louisiana.
“The parties of the second part agree that they will within ninety days from date hereof, form a corporation either under the laws of the State of Texas or of the State of Louisiana, for the purpose of the conducting by said corporation of a bottling business within said building.
“The party of the first part agrees that he will, as soon as said corporation is formed and legally authorized to transact business within the State of Louisiana, make, execute and deliver to said corporation a lease on the above bounden and described premises, which said lease shall run for a period of five years from and after the 15th day of March, 1925. The rental shall be $90.00 per month, payable monthly, by said corporation, in advance on the 15th day of each and every month during the life of said lease. The lease shall also provide that said corporation shall surrender up possession of said premises, peaceably and quietly, at the expiration of the lease, in as good condition as the same shall be at the date of assuming possession thereof, reasonable wear and tear thereof and damage by fire and the elements excepted.
“It is understood and agreed that at the date, of the execution of this contract, the second parties have deposited in the Cedar Grove State Bank, of Cedar Grove, Louisiana, the sum of $1,000.00 to be held by said Bank as an escrow and is to be delivered to said first party when said building is in condition for the installation of Machinery as hereinbefore specified. Tim said $1,000.00 shall be credited on thé rental and shall be in full payment thereof commencing March 15th, 1925, until the full amount of said deposit, both principal and interest, is exhausted at the rate of $90.00 per month as above provided. The said $1,000.00 shall bear interest at the rate of 8% per annum from the 15th day of March, 1925, but as each installment of rent falls due, interest on that installment shall cease. It is understood that the second parties may take possession of the premises as soon as same shall be ready and operate under this agreement until said corporation is formed and said lease executed and delivered. It is further agreed that should the building not be ready for occupancy at the time herein provided, proper deduction at the rate of $90.00 per month will be made for the time second parties are deprived of possession.
"In witness whereof, the respective parties have signed these presents this 19th day of February, 1925.”

The agreement was signed by all parties whose names are set out in the beginning and in the presence of two witnesses.

Intervener constructed the building in accordance with plans and specifications, and undoubtedly to the satisfaction of the parties to the agreement, as there is no evidence of any complaint in that respect. The building was completed before the expiration of the time set in the contract of agreement and delivered into the possession of the lessees. On the 19th day of March, 1925, articles of incorporation were executed; the incorporators being the four whose names were signed to the agreement of lease and one C. M. Cornett; and the stock of said corporation was subscribed to as follows:

B. C. Clardy________________________________________49 shares

G. N. Evans__________________________________________50 shares

W. D. Glasscock__________________________________50 shares

M. E. Glasscock___________________________________60 shares

C. M. Cornett___________________________________ 1 share

The evidence shows that Cornett was only a party interposed for the purpose of executing the corporation, and that the entire stock of the corporation was subscribed to and owned by the four parties who entered into the rent agreement with intervener. They were all thoroughly familiar with that contract, and the contract itself contains all the provisions necessary to be in a contract of lease.

Intervener contends that, subsequent to the date of execution of the corporation, he discussed with each of the subscribers of the stock of the corporation the question of having a formal lease signed and executed in accordance with the agreement, and was informed by all of them that it was unnecessary; that, the defendant, through its officers and board of directors, being the above-named parties, said the lease contract was good enough for them, and did consider it a lease in itself; they kept the said contract in the safe of the defendant corporation, and complied with its terms and amounts even to the date of the monthly payments for a period of about two years, and the evidence is' that, as long as the parties named above owned the stock of the corporation, there was never any question about the lease being for a term of five years.

Intervener’s contention is strongly corroborated, and, we think, conclusive as to the intention of the corporation, by a resolution passed by the board of directors of the defendant corporation on the 19th day of March, 1925, whereby the assets of the partnership, consisting of the four- named parties who signed the rent agreement and the property that was turned over to the corporation by them, were appraised and paid for in stock, in which the following item is listed: “Deposit on rental contract (being a five-year lease) $1,000.00.”

The resolution authorizes the officers of the corporation to issue stock in payment of the above-described property. The corporation, by this resolution, actually bought the rent contract and paid for it, and described it as a “five-year lease.” We do not think the corporation could successfully deny its own resolution, and we do not find in the evidence that any officer or director of said corporation, at that time, did deny or contend anything other than that the corporation had a five-year lease on the property of intervener.

It is contended that this corporation had no officers, and that the articles of incorporation expressly state that the business of the corporation shall be conducted by a board of directors of five. The evidence in this case shows that there were only five stockholders in the corporation, and one of them interposed; however, the bylaws of the corporation provide for officers and show the election of officers, president, vice president, secretary, and treasurer — all to be elected from the directors. Whether they were legally officers of the corporation or not is of no moment here; they at least acted as officers, and were so considered by the stockholders and board of directors of the said corporation.

Intervener testified that one of the officers of the corporation and some member of the board of directors offered to pay him $2,000 to ■ cancel the lease, in order that they might acquire a place elsewhere. The district judge did not give this testimony any weight, as it was not corroborated by anyone, and no questions asked of those whom he claimed made the offer. However, it was denied, and, when we consider that the directors did consider that'they had a five-year lease, which is clearly shown by the testimony and resolution of said board, the evidence is not unreasonable.

About two months before the corporation was put in the hands of a receiver, the stock of the original incorporators was all sold to N. M. Vogelsang, who was appointed receiver. The testimony is conflicting in regard to his knowledge of any lease, other than from month to month; however, the minutes of the corporation were in his possession, and it is fair to say that the minute book only contains five or six pages of minutes which should have shown him that the corporation had a five-year lease — or at least thought it had.

However, the fact that he bought the stock of the corporation would not in any way bring to an end a contract of the corporation then existing.

We think the test in this case is: Could the lessor have evicted the lessee after it took possession and complied with the terms of the written agreement by paying the rent of $90 per month on the 15th of each month in advance? We think not.

“A valid written agreement for a lease, where the lessee has entered into possession, the lessor may be enjoined from evicting him.” 16 R. C. L. 27; Weed vs. Lindsay, 88 Ga. 686, 15 S. E. 836, 20 L. R. A. 36.
“If the agreement for a lease is in writing and may be specifically enforced, the proposed lessee is regarded in equity as holding under the same terms as if a lease had been granted.” 16 R. C. L. 25; Weed vs. Lindsay, 88 Ga. 686, 15 S. E. 836, 20 L. R. A. 33.

All the terms of the lease had been definitely agreed upon, and nothing was left open, and the only reason for the formal execution of a lease was that the parties to the lease intended to form a corporation which, of course, is a distinct thing from its stockholders, and they, of course, could not at that time have legally bound the corporation. However, after the corporation was formed, the same identical men became the officers, directors, and subscribers to all of the stock, there was nothing to forbid them binding the corporation by waiving the formal execution of the lease, which they did. When a corporation accepts the benefits of unauthorized acts of its promoters, knowing what those acts are, it ratifies their acts, and are bound thereby. It cannot accept the benefit of an unauthorized act and then repudiate the liability thereunder,, unless it has no knowledge of the liabilities at the time.

The district judge says in his opinion that the correct rule is stated in 14 Corpus Juris, p. 255: “Since the promoters of a corporation are not in any legal sense its agents before it comes into existence, it is a well-settled rule that a contract made by them, even though it be made for and in the name of the proposed corporation, is not binding on the corporation when formed, unless it is made so by the charter or statute, or unless it is expressly or impliedly adopted by the corporation after it has come into existence,” and says this contract was not made that of the corporation, nor' was it ever expressly ratified by the corporation.

Neither attorney for intervener or defendant has made reference to the resolution of March 19, 1925, by the board of directors of the defendant corporation, whereby the corporation in the express terms of a resolution purchased from the promoters the contract involved, and not only made it the property of the corporation, but described it as a five-year lease. Therefore it is possible in this voluminous record that the district judge overlooked this resolution. The contract was expressly adopted, and the rule laid down in 14 Corpus Juris, p. 225, has been fully met.

Defendant invokes Act 128 of 1894 to defeat the claim of intervener. The act reads as follows, in part:

“Be it enacted by the General Assembly ' of the State of Louisiana,' That the lessor’s privilege and right of pledge under any lease, on any building used wholly or in part for mercantile purposes, executed or ■entered into after August 31st, 1894, .etc. * * *>>

Under this act, the privilege of the lessor is for only twelve months after date of insolvency. Act 190 of 1926 makes lessor’s privilege only for six months; however, the contract in question was' entered into in 1925, and will be governed, if at all, by Act 128 of 1894.

In the case of Ballard, ex officio Tax Collector, vs. Kentwood Ice Mfg. & Bottling Works, 147 La. 583, 85 So. 598, the facts are very similar to the present case. The bottling company did not operate a retail business in 'connection with the manufacture of soft drinks, but. only sold its products in wholesale quantities, and therefore was not engaged in mercantile business. It is a manufacturer, and does not come under Act 128 of 1894. Ballard vs. Hammond, 147 La. 582, 85 So. 597; In re Brown, 140 La. 928, 74 So. 253; . State vs. Tichenor, 118 La. 685, 43 So. 277; State vs. Sugar Company, 108 La. 603, 32 So. 965.

The intervener is entitled to rent at the rate of $90 per month from October 15, 1928, until March 15, 1930, less a credit of $25 received by intervener from other persons, less 8 per cent, per annum on each monthly payment, being the highest rate of conventional interest allowed in this state. Patterson vs. Port Barre Lumber Company, 136 La. 60, 66 So. 418.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that there be judgment in favor of intervener, B. A. Bass, and against N. M. Vogelsang, receiver of Shreveport Nu-Grape Bottling Company, Inc., in the full sum of $90 per month for the period of seventeen months, beginning with October 15, 1928, up to March 15, 1930, less a credit of $25, and less 8 per cent, per annum on each monthly payment, all computed to be from judicial demand, and 5 per cent, per annum interest on said amount until paid; recognizing intervener's lessors privilege and lien on the funds in the hands of the receiver, derived from the sale of the property of the Shreveport Nu-Grape Bottling Company, Inc., that was located in and on the premises of intervener, described as lots 1262 and 1263, between Seventieth and Seventy-first streets, in Cedar Grove, La.; defendant and appellee to pay costs of both courts.


text:
    No. 3701
    Second Circuit
    PATRICK v. GRAYSON & YEARY ET AL.
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellee.

      John B. Piles, of Shreveport, attorney for defendants, appellants.
   DREW, J.

Plaintiff brings this suit for compensation under the Employers’ Liability Act (Act No. 20 of 1914, as amended), alleging that he was employed by the defendant, a commercial partnership, as saw filer, and that his duties required him to do anything necessary to be done around the mill, and that on the day he was injured he was attempting to crank a gas engine which operated and controlled a water pump by which water was furnished to operate the saw mill and planer. That while in the act of cranking said pump he felt a sharp pain in the small of the back near the left hip hone, which pain at the time nearly prostrated him; that he fell to the ground and was unable for some time to arise for the reason that he could not pull his feet together on account of the severity of the pain; that the injury caused severe damage to the muscles, tendons and ligaments in the lower portion of the back near the left hip bone, in or near what is known and referred to as the sacro-iliac joint; and that it caused a sprain of the sacro-iliac joint, totally disabling him from doing work of any reasonable character. He further alleges that he reported the injury to the defendant and that defendant did not offer him any medical attention. He prays for judgment in the sum of $20 per week for a period of 400 weeks and for the further sum of $250 for medical service and fees.

Defendants admit the allegation of commercial co-partnership and that the partnership is domiciled in Caddo parish, Louisiana, and, further answer by pleading a general denial of each allegation of the plaintiff’s petition.

There was judgment in the lower court for the sum of $15 per week for a period of not exceeding 300 weeks, the first payment to be due as of May 17, 1929, together with 5 per cent, interest on each payment from its maturity until paid, subject to a credit of nine weeks theretofore paid, and rejecting, as of non-suit, plaintiff’s demand for medical fees.

From this judgment the defendant appealed, and plaintiff has answered the appeal, asking this court to amend the judgment of the lower court by. allowing $75 as fees of expert witnesses and allowing $250 as medical fees.

Plaintiff began work for defendant about the first of February, 1929, and, on the 5th of March thereafter, while attempting to crank an engine used to operate a pump which furnished water for the saw mill and planer it was necessary for him to extend himself’in a rather awkward position, and while in the act of trying to spin the crank of the engine, the crank being somewhat similar to the crank of an old model Ford, he felt a severe pain in his back. He was forced to sit down and remain there about ten minutes before he could get up, due to the fact that he could not get his feet together. As soon as he was able to do so he returned to the mill, a distance of approximately a half mile, and reported to Mr. Yeary, one of the partners, and who was in charge of the mill, that he had hurt his back trying to start the engine, and that he was not going to try it any more, and that he would have to send someone else to start the pump. There were no witnesses to the accident, due to the fact that the pump is located out in the woods on a branch. However, we think the testimony of plain-+'ff and of the defendant, Yeary, is sufficient to establish the fact that the accident occurred as alleged by plaintiff, and that the same was reported to the defendant at the time.

Defendant did not suggest that plaintiff see a physician or offer the service of one, and in fact the testimony shows that plaintiff did not visit a physician until a week or more after the accident when he went, of his own accord, to Dr. Gandelman, who diagnosed his trouble as a sprain of the sacro-iliac joint and gave him a purgative, suggesting that he have an X-ray made, and on the following morning when plaintiff called on him again, he strapped plaintiff’s back with adhesive tape.

Plaintiff states that his back continued to hurt him from the time of the accident, although he continued to work at the mill on the day of the accident and thereafter until May 10, 1929, at which time he quit. He states that he worke'd under difficulty, and did not do any more than he had to, that other men in the mill assisted him in his work, and that he really was not able to carry on his work. This testimony is corroborated and contradicted. However, there is no reason given for his quitting, except that he was no longer able to do the work and that he had allowed the mill to run down by not being able to properly do his work. During this time, he had complained on a number of occasions, to the other workmen, and to the defendant Yeary.

Some time after the accident, another mill in Texas offered plaintiff a job with a salary of $125 a month, which was a raise of $25 a month over what he was then receiving, and the raise was met by the defendants on April 1, 1929, after the accident.

Between the time plaintiff was injured and the time he quit, he only lost four or five days at one time, while attending physicians for examination and treatment in the Charity Hospital.

We think the evidence is clear that plaintiff received an injury to his back, as alleged by him, and that he suffered from that injury during the time he continued to work for defendant, and there is no dispute that at the time of the trial plaintiff was disabled insofar as doing any reasonable work of the character he was accustomed to do.

The evidence is also convincing that plaintiff was suffering from arthritis of longer duration than the time of the- injury. Plaintiff was not disabled before the accident, and had never before complained of his back. This was ’shown by witnesses who worked with him and who had known him for many years. He did suffer continuously after the accident, and within two months’ time became totally disabled, and this condition continued up to the time of the trial..

In the case of Hammons vs. Southern Carbon Co., 5 La. App. 189, the court said:

“The physicians for defendant, as we gather, attributed the condition of plaintiff solely to arthritis, and although they did .not so state we infer that the disease had at the time of the accident reached such a stage that disability would have soon resulted without regard to the accident; but it does not follow that the accident was not a contributing cause to his disability, which, as we have stated, was inferentially shown by the fact that plaintiff was not disabled before the accident and has been continuously disabled since.”
“The fact that an employee, injured in performing services arising out of and incidental to his employment in the course of his employer’s occupation, was already afflicted with a dormant disease that might some day have produced physical disability is no reason why the employee should not be allowed compensation, under the employers’ liability statute, for the injury which, added to the disease, superinduced physical disability.” Behan vs. John B. Honor Co., Ltd., 143 La. 348, 78 So. 589, L.R.A. 1918F, 862; Craft vs. Gulf Lumber Co., 151 La. 281, 91 So. 736, 737.

In Hicks vs. Meridian Lumber Co., 152 La. 975, 94 So. 903, 904, the court said:

“It is quite immaterial for the purposes of this case whether the alleged strain brought on the aneurism, or merely hastened the inevitable rupture; for this court would allow compensation in either case.”

In Craft vs. Gulf Lumber Co., supra, the court said:

“We are strongly persuaded from the evidence that at the time the plaintiff received the blow in the lower part of the abdomen he had a hernia in process of development, which was quickened and greatly accelerated by the blow he received,” but nevertheless allowed compensation.

Defendant contends that one who suffers an injury at a time he is suffering from a disease or disability must show to what extent the injury received by him, in the course of his employment, and growing' out of it, increased the disability, and cites in support of the contention the case of Bauman vs. Newman, 5 La. App. 119, wherein the Orleans Court of Appeal held that the plaintiff was suffering from a disease or disability at the time of the injury received, and was only entitled to recover damages for so much of his affliction as was the result of the accident. The court erroneously based its decision on that in the case of O’Neil vs. Morgan’s L. & T. R. R. & S. S. Co., 5 La. App. 94, which was an action arising ex delicto under article 2315 of the Civil Code, in which the court was careful to distinguish it from an action arising under the Workmen’s Compensation Act. In the case of Caldwell vs. City of Shreveport, 150 La. 465, 90 So. 763, the court said:

“In the absence of a statute fixing the amount of compensation recoverable for an injury resulting partly from the negligence of another and partly from a disease lurking in plaintiff’s system, plaintiff is entitled to damages for only so much of his affliction as is the result of the accident.”

The court distinguished this case from the cases of Behan vs. John B. Honor Co., supra, and Fox v. United Chemical & Organic Products Co., 147 La. 865, 86 So. 311, and said: “In the present case, the amount of compensation, or extent of liability, is not fixed * * * by statute.”

The decisions of the courts of this state, with the exception of the case of Bauman vs. Newman, supra, have been uniform in holding that the compensation paid injured workmen under the Workmen’s Compensation Act is based upon disability, and that it is immaterial whether the injury alone, or in conjunction with a latent systemic infection caused the disability. Connell vs. Gilliland Oil Co., 2 La. App. 438; McMullen vs. La. Cent. Lumber Co., 2 La. App. 773; Becton vs. Deas Paving Co., 3 La. App. 683; Hammons vs. Southern Carbon Co., supra; Blackman vs. Hope Engineering, etc., Co., 11 La. App. 92, 120 So. 682; Henderson vs. Louisiana Power Co., 9 La. App. 475, 121 So. 217; Arender vs. Grant Timber, etc., Co., 9 La. App. 132, 119 So. 498; Taylor vs. Southern, etc., Co., 125 So. 877, decided January 31, 1930.

We see no good reason for adopting the rule in the case of Bauman vs. Newman which, we think, is erroneous, and will adhere to the well-settled jurisprudence of this state on this point.

Defendant contends that the injury received by plaintiff was not due to any accident such as is contemplated by Act No. 20 of 1914; that there was no specific strain sufficient to cause injury or accident as provided by the Compensation Act.

In McMullen vs. Louisiana Cent. Lumber Co., supra, the court said:

“The term ‘accident,’ as employed in the compensation acts, is broad enough to in' elude an injury from muscular strain or physical overexertion, such as hernia or rupture or bursting of blood vessels. This is true although the physical edndition of the employee is such as to predispose him to the injury. But it has been held there must be a definite, particular occurrence to which the injury can be attributed.
“Acceleration of a diseased bodily condition may constitute a personal injury, and an injury may be by accident, although it would not have been sustained by a perfectly healthy individual.”

In Gospel vs. Southern Carbon Co., 4 La. App. 272, the court said:

“The statute is intended to provide protection to the employees against all risks to which they may be exposed by the employment (Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677), and where it’ appears there is a causal connection between the risk of the employment and the accident, it is the rule to allow compensation, although the risk of the employment may have been only a contributing cause.”
“The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment.” Flowers vs. Williams-Rieves Lumber Co., 5 La. App. 49; Dyer vs. Rapides Lumber Co., supra; Myers vs. La. Ry. & Nav. Co., 140 La. 937, 74 So. 256; Ferguson vs. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248; Conaway & Clark vs. Marine Oil Co., 162 La. 147, 110 So. 181.

We think these decisions are decisive of this issue, and that plaintiff was injured by accident, as contemplated in the compensation act.

Plaintiff has answered the appeal and asks that we assess as costs $75 for fees of expert witnesses. There is nothing in the record to show that this matter was passed on by the lower court, or that the same was asked for there. We do not think this matter can be presented to this court by answer to appeal without having been first presented to the court of original jurisdiction. Le Seur vs. Rumbaugh, 6 La. App. 587.

He also prays that the judgment of the lower court be amended by allowing him medical fees in the sum of $250. There is very little evidence in regard to medical fees in the record, and the lower court rejected the demand of plaintiff as of non-suit as to this item. We see no good reason for disturbing the judgment of the lower court.

It is therefore ordered, adjudged, and decreed, that the judgment of the lower court be affirmed, cost of appeal to be paid by defendant-appellant.


text:
    No. 3633
    Second Circuit
    U. KOEN & CO., INC., v. NEW WINNFIELD DRUG CO.
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    A. Leonard Allen, of Winnfield, attorney for plaintiff, appellee.
    Moss & Moss, of Winnfield, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff instituted this action to recover judgment against defendant for the price of merchandise alleged to have been sold and delivered to defendant.

The record shows that defendant, whose place of business is at Winnfield, La., ordered the merchandise from plaintiff, whose [place of business is at New Orleans, La., and that plaintiff had the manufacturer of the merchandise ship it from Winston-Salem, N. C., and, while there was some evidence introduced tending to show that the merchandise had been delivered by the carrier to defendant, the weight of the evidence shows that the merchandise was not delivered, and the evidence indicates that the shipment was lost in transit, and the right of plaintiff to recover is, we think, dependent upon whether or not the title or ownership of the property passed to defendant when it was delivered to the carrier by the manufacturer at Winston-Salem.

Defendant and appellant argues that the bill of lading was taken in the name of plaintiff, and that the title or ownership of the merchandise did not pass to defendant on delivery of the shipment by the manufacturer to the common carrier at Winston-Salem, while plaintiff and appellee argues that the shipment was consigned to defendant, and that, in default of proof of the intention of the parties to the contrary, the title or ownership of the merchandise passed to defendant when it was delivered to the carrier.

The hill of lading was not offered in evidence, and it was not shown that the shipment was consigned to defendant, hut it was conceded in argument that the hill of lading was sent to plaintiff, and it does not appear to have been forwarded to defendant, and the only evidence indicating that it was the intention of the parties that the title or ownership of the prop' erty should pass to defendant on delivery of the merchandise by the manufacturer to the carrier is that defendant had called on the connecting carrier for delivery of the merchandise, which does not, however, we think, show that it was the intention of the parties that the title to the property should pass to defendant on delivery to the carrier.

Plaintiff carried the burden of proof to show that the title or ownership of the property passed to defendant when it was delivered to the carrier, and, in the absence of evidence establishing that such was the agreement of the parties, or that the bill of lading directed that the shipment be delivered to defendant, it cannot be presumed that the title or ownership of the property passed to defendant on delivery to the carrier, and that the shipment was at defendant’s risk. See Act No. 94 of 1912; First Nat. Bank vs. Henderson, 157 La. 394, 102 So. 501.

We are therefore of the opinion that, the evidence establishing that the merchandise was not received by defendant, and plaintiff failing to establish that it was the intention of the parties that the title or ownership of the property should pass to defendant «u delivery to the carrier, or that under the bill of lading the merchandise was deliverable to defendant, plaintiff cannot recover.

It is therefore ordered that the judgment appealed from be avoided and reversed, and that plaintiff’s demands be rejected, at its cost.


author: ELLIOTT, J.

text:
    No. 593
    First Circuit
    LAURENT v. DENDINGER, INC.
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused, the Original Decree Being Amended.)

      Harvey E. Ellis, Robert D. Jones and Adrian D. Schwartz, of Covington, attorneys for plaintiff, appellee.
    Dresner & Dresner, of New Orleans, and Burns & Burns, of Covington, attorneys for defendant', appellant.
   ELLIOTT, J.

Plaintiff-appellee moves to dismiss this appeal on the ground that it was returnable on December 1, 1928, and' had not been filed until December 3, 1928.

The construction that has always been placed on Code Practice, arts. 585 and 883, is that, if the record was filed within 3 days after the return day, it was in time. The motion to dismiss is overruled.

Defendant-appellant moves this court to remand the appeal herein for the purpose of having the lower court require a bond for cost. The case has been brought up on appeal by defendant-appellant. As for the bond which appellant endeavors to have required of the plaintiff, that matter was carried before the Supreme Court in an effort to have the lower court require the bond before any appeal was taken. The Supreme Court, acting on the writ that had been sued out in that court, refused to compel the lower court to require the bond, on the ground that defendant’s motion came too late. If it was too late then, it is too late now. The motion to remand is refused.

Rosa Laurent, widow of William Laurent, alleging his accidental injury and resulting death while in the employ of the defendant, Dendinger, Inc., claims compensation in the amount of $4.87% per week, beginning September 6, 1927, to continue until her death, the first payment to be made September 13, 1927. She also claims $163.50 for medical and funeral expenses.

The defense is that the death of her husband was not due to accident, but to pulmonary tuberculosis, with which he was suffering previous to his employment. There was judgment in favor of the plaintiff for compensation as claimed, but there was no allowance for medical fees and funeral expenses.

On the first hearing of this’ appeal we held that Act 20 of 1914 (amended by Act 85 of 1926) did not provide for the payment of any compensation to a widow on account of the death of her husband, where none had been paid previous to his death. That section 8, subsec. 2, of Act 20 of 1914, as amended by Act 85 of 1926, sec. 1, providing that compensation in such a case was to be “as hereinafter provided,” not having been followed by any provisory provision, no compensation could be allowed under the statute.

We reversed the judgment appealed from and dismissed plaintiff’s suit. We had made a. similar ruling in • the case of Missouri Cooley Bass vs. Weber-King Mfg. Company, 168 La. 651, 123 So. 112, which was then pending before the Supreme Court on a writ of review, and had not at that time been acted on.

The Supreme Court, reviewing Act 85 of 1926, held that compensation was contemplated and provided for in the situation stated.

Plaintiff’s application for rehearing in the present case was therefore granted in order that we might decide on the subject in harmony with the decision of the Supreme Court in the case cited.

The ruling of the lower court, overruling the defense mentioned, is therefore now affirmed.

The defendant urges an exception to plaintiff’s demand, on the ground that she-does not expressly allege in her petition that she was living with her husband at the time of the accident and at his death, relying on Act 85 of 1926, sec. 1, amending section 8, subsec. 2, pars. (A) and (B) and (K) of Act 20 of 1914; the two former reading as follows: “The following persons shall be conclusively presumed to be wholly ánd actually dependent upon the deceased employee. (B) A wife upon a husband with whom she was living at the time of her accident or death.” It is also provided under paragraph (K) that the widow must be living with her deceased hsuband at the time of the injury and death. •

The presumption of the law is not a necessary averment in the wife’s petition in order to show her dependency.

Under the law, Civil Code, art. 120, a wife is bound to live with her husband and is presumed to do so..

She alleges that the decedent and herself were married on December 27, 1903, and that she was entirely dependent on him for support. This is sufficient. The exception was properly overruled. The other grounds of exception urged by defendant to plaintiff’s demand come within the reason for the decision in 168 La. 651, 123 So. 112, and were properly overruled in the lower court.

William Laurent was assisting two other men in carrying a cypress cross-tie. Two of them were carrying the front and by means of a wooden bar, called a lug hook. A lug hook, according to our understanding, is a wooden bar with two iron hooks hanging from it in the middle. These hooks catch into the thing to be carried and it is then lifted with a man carrying each end of the bar. Plaintiff’s husband had been carrying the rear end of the tie by lifting it with his hands. After it had been carried in the way stated about fifty feet, the men laid it down and rested, at which time Laurent complained of being tired. When they started again one of the men who had been carrying one of the ends of the bar took the end of the tie that Laurent had been carrying, and Laurent took one of the ends of the bar. In this way the tie was carried the remainder of the distance, about fifty feet and placed on the ground where it was to be used. Laurent then walked about forty feet away and fell to the ground unconscious, a hemorrhage of blood coming from his mouth. A physician in the employment of the defendant was sent for. He arrived and administered first aid treatment for the hemorrhage, had him removed from the ground where he had fallen to a bunk in a camp car, and directed that he be kept quiet for three or four days, at the end of which time he said he would return.

The plaintiff Laurent’s wife, living at Madisonville, nearly thirty miles distant, hearing of what had happened to him, came the next day in an automobile, had him taken out of the bunk, and placed in the automobile in which she had come and carried him back home, that is to Madison-ville. She then sent for a physician living at Covington, who came the next day following Laurent’s return and found him, he says, suffering with incipient bronchial pneumonia. Five days thereafter he died with this disease. The immediate cause of Laurent’s death was bronchial pneumonia, and that in turn was produced by the hemorrhage; there is no serious dispute about that, but there is a diversity of opinion among the physicians as to the cause of the hemorrhage. The physician who had observed and treated Laurent a.t the place where he was stricken expressed the opinion that he was suffering with consumption, and that the hemorrhage which prostrated him was brought on him by that disease and not as a result of injury received in carrying the cross-tie. The opinion of this physician was based entirely on his observation and what he was told about Laurent at the time.

Another physician living at Madisonville had treated Laurent more than a year previous to the time in question. He declared that Laurent had consumption; that he had treated him for it; that he had examined Laurent about 8 months before his death; that both lungs were then infected. His opinion was based entirely on his observation and personal examination, and not on a microscopic or pathologic examination.

The physician at Covington, who had been called by Laurent’s wife to treat him upon his return to Madisonville, was a specialist in pulmonary diseases. He testified that he microscopically examined the sputum of the decedent at the time he was called to see him, and he was very positive in his statement that he did not have tuberculosis.

William Laurent’s body had been embalmed and the defendant obtained an order from the court to take up his body and remove his heart and lungs in order that they might be examined by an expert pathologist. This was done and the pathologist, after examination, testified that he found in the lungs the microbes of tuberculosis.

Plaintiff then had the heart and lungs of decedent examined by an expert pathologist microscopically, and this physician testified that there was no evidence of tuberculosis.

The court, with the consent of both sides, had the lungs and heart examined by another expert pathologist. This physician testified that the decedent did not have tuberculosis; that no infection of that disease existed in his lungs.

There is testimony in the record that decedent, while working for defendant in the sawmill camp where he was stricken, was often heard to cough, etc. But the evidence shows that it was not unusual for the laborers employed there to cough.

The evidence shows that Laurent had been employed at the camp as a common laborer for some time. It does not appear how long, but the indication is that he was there several weeks before he was stricken. His work consisted of lifting and other labor called heavy work, and it seems reasonable that, if he was suffering with tuberculosis to the extent that it brought on hemorrhage, which indirectly cost him his life, he would not have been physically able to do the work required of him. Yet on the day he was stricken and up until the time thereof no fault was observed as to his capacity to do the work required of a common laborer. As for the hemorrhage, some of the physicians say it could have been caused by lifting or by a sudden jerk or stumble while walking with the tie, etc. There was no difference in opinion that the blood passing into the bronchial tubes caused the infection of pneumonia.

The defendant contends that the act of the plaintiff in taking him out of the camp ear and carrying him, in a sitting posture, in an automobile to Madisonville brought it about. It was brought out that the object of the doctor at the camp in directing that he be kept quiet was. to prevent' another hemorrhage. The trip did not produce another hemorrhage; the blood had evidently passed into his bronchial tubes before he was moved from the camp. And the better opinion is that the infection of pneumonia had taken place at the camp, and that pneumonia would have developed had he remained quietly in the camp car, just as it did after he had reached home.

The evidence as a whole leads to tne conclusion that the death of plaintiff’s huB-band was due to an accidental injury, sustained by him while performing services arising out of and incidental to his employment by defendant and in the course of his employer’s business.

The plaintiff is therefore entitled to compensation under the law, the lower court held, “ending upon the death or remarriage of the plaintiff.” And it seems that such is the intendment of the act.

The Supreme Court in the Missouri Cooley, Bass Case, 168 La. 651, 123 So. 112, 113, referring to the provision in the same act, under the paragraph (J), which provides that, “where payments of compensation have been made to the employee before his death, the compensation for dependents as provided for in this Section shall begin on the date of the last of such payments and shall not continue for more than three hundred weeks from the date of the accident,” said: “It would be a strained construction of the law that would permit the injured employee, himself, to receive compensation prior to his death, but would withhold compensation from his dependents who are deprived of his support by that death. Such a construction would be wholly inconsistent with the beneficial purpose of the law to protect the dependents of an employee who is fatally injured in the course of his employment by depriving them of protection at. the time they need it most. We cannot sanction that construction of the statute. We prefer to hold, as being more in consonance with the legislative intention and purpose, that the provisions of the quoted paragraph when read together with the other provisions of the statute are sufficient authority for the court to fix the duration of compensation allowed a deceased employee’s dependents at a period not to exceed 300 weeks.” But the court, in saying this,, was not considering the provisions of section 8, subsec. (2), par. (P) which reads:

“The marriage or death of a dependent shall terminate payments to such dependent, but shall not affect payments allowed other dependents. Should the widower become capable of self-support, compensation shall cease as to him. Compensation payments to dependents shall also terminate when the condition of dependency ceases, except in the case of a widow or child.”

And taking the opinion as a whole it does not seem to be inconsistent with the construction placed by the lower court on the language used in'paragraph (P).

Plaintiff has answered the appeal and prays that she be allowed $163.50 for medical fees and for the burial of the decedent. The petition alleges that the amount is due, and the law authorizes it, but the judgment appealed from does not allow anything on that account. There is no express prayer to that effect, but there is this concluding request:

“Petitioner further prays for all general and necessary orders in the premises and for such judgment as equity and the na- ■ ture of this case may require, and for cost and for general relief.”

We think the amount should be allowed. Le Goaster vs. Lafon Asylum, 159 La. 855, 106 So. 329, and other cases cited in plaintiff’s brief.

Por these reasons the judgment appealed from herein is affirmed, to the extent that it allows the plaintiff, Rosa Laurent, compensation to be paid by defendant, Dendi • - ger, Inc., at $4.87y2 per week, counting from September 6, 1927, the first payment of which was due on September 13, 1927, and to continue weekly thereafter until her death or remarriage, with legal interest on each weekly amount due until paid. But it is amended so as to further award the plaintiff judgment against the defendant in the further sum of $163.50 on account of medical fees and burial expenses.

As thus amended, the judgment • appealed from is affirmed. Defendant and appellant to pay the cost in both courts.

LECHE, J., not participating.

ON APPLICATION POR REHEARING.

In this case defendant and appellant contends that this court erred in granting to the plaintiff Rosa Laurent compensation until her death or remarriage, and that her compensation should have been fixed weekly for 300 weeks as decided by the Supreme Court in the case of Bass vs. Weber-King Mfg. Co., Inc., 168 La. 651, 123 So. 112, and the plaintiff and appellee in a petition to the court likewise prays that this change be made.

The court has furthermore come to the conclusion that the former opinion is in error in that respect and that the compensation of the plaintiff should have been fixed for a limited time, and that in this instance it should be for three hundred weeks.

It is therefore ordered and decreed that the previous decree of this court awarding plaintiff Rosa Laurent compensation weekly until her death or remarriage is avoided and set aside and it is now ordered as requested by both sides that her compensation be fixed at $4.87% per week counting from September 6, 1927, the first payment of which was due on September 13, 1927, and to continue weekly thereafter for a period of three hundred weeks with legal interest on each weekly amount until paid. And that she recover the further sum of $163.50 on account of medical fees and burial expenses. Defendant and appellant to pay the costs of both courts.

As thus amended the rehearing is refused.


author: MOUTON, J.

text:
    No. 603
    First Circuit
    NATIONAL SAND & GRAVEL CO., INC., V. JANES CONTRACTING CO., INC.
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused.)
    S. S. Reid, of Amite, attorney for plaintiff, appellant.
    J. Y. Sanders, Jr., of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff entered into a contract with defendant company for the sale of sand and gravel from its pit to a spur on the estate of D. H. Sanders near Duncan avenue in Amite City. This contract was verbal. Plaintiff claims that it was also agreed that it would get for switching charges the sum of $5 per car for each car from the pit to the spur on Sanders’ estate. The sand and gravel were paid for, the only bone of contention being as to whether or not plaintiff is entitled to recover for the switching charges.

E. M. Whitman is president of plaintiff company, and L. M. Janes was president of defendant company, at the time plaintiff claims the contract for the payment of the switching charges, at the rate stated, was entered into.

Mr. Janes died after this suit was instituted and did not testify at the trial.

Plaintiff says the first contract made in reference to this transaction was entered into at the office of Mr. Janes in the city of Baton Rouge; that he made the contract with Mr. Janes, and that no one else was present. He thinks the stenographer was in the next room, but that she did not hear the conversation that resulted in the agreement in which it was agreed with Mr. Janes that his company would pay $5 per car for these switching charges.

The sand and gravel were being furnished by plaintiff company to defendant company, which was engaged in building street and sidewalk pavements in Amite, and were delivered near Duncan avenue for the use of defendant company in carrying out its undertaking with the city.

It was testified to by Strickland and Hedge, then employees of defendant com pany, that when the final arrangements were made with E. M. Whitman for the price of the sand and gravel in October, 1928, Whitman never made the slightest reference to his claim for the switching charges. The testimony of Gilvin, superintendent of defendant, is that he had sent Hedge and Stickland to Amite for the purpose of getting the price for the sand and gravel so that he might make an intelligent bid on the work. He says that Strickland gave him the information over the ’phone, but made no mention of the switching charges. Gilvin got the bid for the sand and gravel at the usual price,' after consultation with Whitman.

It appears that the defendant company had done some paving work for Whitman to.whom a bill had been sent on the 19th of July, 1928. The next day Whitman sent his bill to defendant company on which the switching charges were carried.

Gilvin, superintendent of defendant com pany, says it was his first intimation that such a charge was being claimed by White man, who, he said, was much displeased because of the bill defendant had sent him, and that Whitman said he was going to do some charging too. It was also shown by defendant that though a number of invoices had been sent it for the sand and gravel during a period of several months from February, 1928, to the latter part of July of that year, no claim whatsoever had been made for these switching charges. The failure of plaintiff company to include these charges in the invoices, of mentioning them to Strickland, Hedge, or Gilvin at the time of their conferences with Whitman, hereinabove referred to, should, defendant contends, b.e taken as strong presumptions to show that the deceased president of defendant company, L. M. Janes, had never entered into’ any agreement with Whitman to pay the amount claimed by the latter for the ’ switching charges. The defendant contends that the claim fi i these charges was made by Whitman after the bill by defendant was sent him about which he had expressed his displeasure, and that he had actually said he would also do some charging. The real cause for making the switching charges, defendant claims, was the result of the trouble which had occurred between Whitman and defendant for the bill sent by the latter for Whitman’s paving bill.

In support of this contention, the defendant further refers to a letter written in May, 1928, by Whitman to Mr. Janes, the deceased president of defendant company, in which he complains that Gilvin in doing his paving job had overcharged him, stating also therein that if such charges were to be approved he would raise the price on sand and gravel, and that he would not invoice any more material until he heard from Mr. Janes.

From all of the foregoing facts and circumstances, counsel for defendant argue that the switching charges by Whitman were the mere result of an afterthought, and of the desire on his part to get even with defendant company for its paving charges which he claimed were excessive.

Whitman claims, however, that when he contracted with Janes in his office in Baton Rouge, for these charges, it was agreed they would be paid only after Janes had completed his paving work in Amite. There is no one to contradict that such had been the stipulation as to the time fixed between them when these charges would be collectible.

The bill for $1,245 for the switching charges was sent defendant on July 20, 1928, at which time the work of defendant company in Amite had been completed or had about reached its period of completion and Whitman says the reason he had not sent it earlier, or during the time tin building program was going on, was because of his promise to Mr. James of not asking payment before he had completed his paving job. He also explains that whe: he stated he would do some charging too, he had no reference to the switching-charges, but was referring to some paving that he expected would be done by defendant for some school project. He seems to frankly admit that he would have made heavier charges thereafter because of the treatment he claims he had experienced, and that they would not have been the same as before, which he says, all along his testimony, had been originally reduced to help out Mr. Janes with whom he seemed to have been on very friendly relations.

There is nothing apparently unreasonable in that explanation, although, all along, it would not be sufficient to overcome the effect of the silent attitude of Whitman in reference to the claim in question.

We, however, have a letter written by Whitman to Janes, dated August 31, 1928, and Janes’ reply thereto which clarifies the situation, and shows that the claim for the switching charges was not trumped up as an afterthought to sustain an unwarranted demand.

In his letter to Janes, Whitman tells him he had a check for $2,489.50 for the sand and gravel used in the contract for 113 cars. He then says:

“However, you failed to send the National Sand and Gravel Company a check for five hundred and fifty-six ($556.00) dollars for switching the one hundred and thirteen (113) cars on contract No. 1. * * * I will appreciate it if you will mail us a check to cover the switching bill by return mail.”

The sum of $5 a car, which Whitman claims was the amount defendant was to pay, would constitute a total for the 113 cars of exactly the sum of $565, the payment of which was demanded in Whitman’s letter.

Janes-answered it September 8, 1928. In that answer there is not the slightest denial by Janes that he did not owe the amount asked for these charges by Whitman. On the contrary, he says that according to their agreement, Whitman was to get his money when “we got ours,” and then says: “I can assure you, that as soon as this money is paid, * * * you will receive settlement in full, etc.”

The statement of Janes that Whitman would be paid when Janes got his money clearly supports the claim of Whitman that he was to pay when he had completed his job. The further statement that when he would get his money that Whitman would be “settled in full” imports a clear acknowledgment of the debt, including a promise for its payment when he would have collected his money, as agreed.

This letter from Whitman and the answer from Janes are plain and direct, need no construction, clarify the situation, strongly and almost unanswerably corroborate the testimony of Whitman that these switching charges had been originally stipulated at $5 per car, and were to be paid when Janes would have completed tbe paving contemplated under bis contract.

Tbe contract for tbe payment of $565, being over $500, under article 2277, C. C., must be proved by at least one credible witness, and other corroborating circumstances.

There is nothing in the record to show that Whitman is not a credible witness. In fact, there is no intimation that he is not. Here, the answer of Janes virtually implies an acknowledgment of the debt with a promise to pay it, corroborative of Whitman’s testimony in every essential element, and in reality more convincing than would be proof flowing from ordinary corroborative circumstances.

Plaintiff has therefore legally established his claim which must be enforced, unless it be defeated under the contention of defendant company that plaintiff, not being a common carrier, is without right or authority to make any charges for switching.

Plaintiff, as its name indicates, is engaged in exploiting sand and gravel, and is not engaged in the business of a common carrier for the transportation of freight for the general public. As it was in the instant case acting as a private carrier for the accommodation of defendant company, it was acting in the capacity of a private individual and, like all other private persons, had the right to make its own contract. 10 C. J. 38, sec. 4.

Counsel for defendant refer to authorities where it is held that a railway company is, relatively by transportation service of loaded freight cars, restricted to a fixed charge; also, to the regulations of the Louisiana Public Service Commission which requires railroad companies of this state to charge according to the rates established by the Commission, without discrimination for switching cars for any other railroad with which it connects, etc., for intrastate business. These rules of the Commission, and the ■ authority cited by counsel which hold that the rates are restricted to a fixed charge, apply to railroad or transportation companies which are conducting a public employment for public purposes in that line of business. Corporations of that character are subject to the control of the state or federal governments which may provide for the regulation of rates subject to the constitutional guarantees. C. J. vol. 10, sec. 38.

In the instant case, the agreement was made by a private carrier, not engaged in the business of carrying as a public employment, for switching the cars to a designated point for the delivery of the goods in a particular case for a stipulated reward. The contract is not affected by the rates fixed for the regulation of railroads or other public agencies, and is legal, not being contrary to good morals, against public policy, or forbidden by law.

The judgment rejecting the demand is erroneous, and must be reversed, decreeing plaintiff entitled to a judgment for the amount claimed.

It is therefore ordered, adjudged, and decreed that the judgment be and is hereby avoided and reversed; that plaintiff have judgment against defendant in the sum of $1,245, with legal interest from judicial demand, with cost of court.

LECHE, J., not participating.