text:
    No. 2492
    Second Circuit
    MARSIS MERCER v. J. G. MARSTON
    (November 7, 1925, Opinion and Decree)
    (December 17, 1925, Rehearing Refused)
    (February 2, 1926, Application to Supreme Court, Writ Refused: “We find no error of law in the opinion and will not review the facts.”)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Animals—Pan. 15, 17.
    Under Article 2315, 2316 and 2321 of the Civil Code the owner is presumed to have knowledge of the vicious characteristics of his dogs when it is proven that they have injured someone.
    2. Louisiana Digest—Animals—Par. 18.
    Under Articles 2315, 2316 and 2321 of the Civil Code the owner of an animal is responsible for the damage it causes if he is guilty of the slightest negligence or fault, but may rebut the presumption of negligence by contrary proof.
    3. Louisiana Digest—Animals—Par. 17, 18.
    Under Articles 2315, 2316 and 2321 of the Civil Code the owner of a vicious animal is presumed to know that the character of the animal is bad. This presumes the owner to be negligent wherever a vicious animal causes damages and throws on him the burden of proving not only that he was unaware of the animal’s vicious character but that he was also free of negligence.
    4. Louisiana Digest—Animals—Par. 17, 18.
    Under Articles 2315, 2316 and 2321 of the Civil Code the law makes no distinction between an animal dangerous from viciousness and one merely mischievous or dangerous from playfulness, but puts on the owner of both the duty of restraint when he knows of the animal’s propensities, and he is presumed to know the animal’s propensities whether it is dangerous from either cause.
    5. Louisiana Digest—Damages—Par. 104.
    Two thousand dollars is considered a sufficient quantum of damages where the injured person’s leg was broken near the ankle, which caused considerable ,pain and confinement to bed for six weeks.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    This is a suit for personal injuries caused by a fall on a concrete walk while backing away from two dogs who were barking and jumping.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    L. C. Butler, of Shreveport, attorney for plaintiff, appellant.
    Cook & Cook, of Shreveport, attorneys for defendant, appellee.
   CARVER, J.

Plaintiff, a colored woman, 56 years old, appeals from a judgment rejecting her demands for damages for personal injuries suffered by her when she fell on the concrete sidewalk in front of defendant’s residence and broke her ankle while kicking at and backing away from two dogs who were barking and jumping at her as she was passing the residence about dusk on May 27, 1924.

Defendant’s yard is about level with the sidewalk and is not enclosed. The dogs were Airedales, which had been given as presents to defendant’s grown daughters when puppies and had been on defendant’s premises about two or three years.

Defendant had wished to send the dogs to his plantation because not needed at his residence, but the dogs were his daughters’ pets and they objected to this and he did not insist.

The proof shows that the dogs are gentle and kind, and had never been known to bite or offer to bite anyone;' but it shows also that they were in the habit of jumping and barking at anybody that passed by.

Miss Prances Marston, defendant’s daughter, says:

“They jump off the porch at anybody that passes by.”

Mrs. Woods, oh being asked:

“This barking that the dogs were doing, were they apparently really trying to bite her or where they just barking?”

Answered:

“Well, of course, I can’t tell that, but they do bark at everything and everybody, and I don’t know whether they intended to play with her or whether they really intended to bite her, but they were barking and they were bouncing at her.”

The defendant, though a witness, was not asked if he knew of the dogs’ propensities to bark and jump at passers-by.

The testimony is conflicting as to how close the foremost dog approached plaintiff.

R. E. Wilson says the dogs did not get within fifteen feet of plaintiff and that he saw them all the time; but we gather from his previous testimony that his attention was attracted by plaintiff’s screams and the dogs’ barking.

Plaintiff says that one of the dogs got to her and that she had to kick and fight with hands and feet to keep him from biting her.

Mrs. Woods says that they got to within two or three feet of her; that she was kicking at them that she said they had bitten her and that even after she fell she was still kicking at them.

We are satisfied that they, or at least one of them, must have approached close enough to plaintiff to bite her or at least to put her in great fear of being bitten.

The courts of our state have often dealt with suits for damages for injuries inflicted by dogs. See:

Montgomery vs. Koester, 35 La. Ann. 1091.
Delisle vs. Bourriague, 105 La. 77, 22 South. 731.
McGuire vs. Ringrose, 41 La. Ann. 1029, 6 South. 895.
Martinez vs. Bernhard, 106 La. 368, 30 South. 901.
Bentz vs. Page, 115 La. 562, 39 South. 599.
Ruseau vs. Gauche-Connor Co., 8 Orl. App. 216.
Gauche-Connor Co. vs. Hotel Grunewald, 8 Orl. App. 226.

In all the Supreme Court cases the plaintiffs had been bitten.

In the Montgomery, McGuire, Delisle and Bentz eases the court found the defendant liable. The dogs in those cases were shown to have been vicious and knowledge of this characteristic by the owner was proven or inferred, from the circumstances or (Bentz case) held presumed by law.

In the Martinez case the court found that the dog was gentle and kind, had never attempted to bite anyone, had never given occasion to suspect that it would bite, and that the owner was in no way at fault or negligent; holding that in order to entail liability some fault or negligence on the part of the owner was necessary. The court found against the plaintiff. It pointed out that in previous cases where liability had been found there had been some fault or negligence and stated that the slightest fault or negligence was sufficient to fix liability.

. We have not read the cases cited from 8 Orleans Appeal, but counsel for defendant cite them as holding that;

“The liability of an owner of a domestic animal for damage it may cause is not an unqualified one, there being no liability unless there is some fault.”
“No more than ordinary care is required of owners of domestic animals.”

None of these cases is exactly in point.

In those Where liability was found, the dogs were vicious, and ' in all of those which we have read the plaintiffs were bitten; whereas in this case the dogs were gentle and kind and the plaintiff was not bitten.

A comparison of the expressions of the court in the Montgomery, Delisle, Martinez and Bentz cases, in all of which various French commentators were referred to and quoted from, shows that these commentators are not in entire agreement as to the meaning of Article 1385, Code Napoleon, from which our Article 2321 is taken.

In the Montgomery case, Justice Fenner says:

“The exceptions to the rule of the owner’s liability are cases of vis major, contributory fault or negligence on the part of the person injured and the like explained by Demolombe. * * * 8 Demolombe No. 650.”
“The French authorities go to the further extent of holding that the character of the animal and the knowledge of its vicious propensities by the owner are of no consequence in determining the liability of the owner.”

He also quotes Marcade on Code Napoleon 1385, No. 1, as follows:

“Of two things, one, either the owner has not taken all the precautions which prudence required, and is thus in fault, or the animal is so vicious that all imaginable precautions to prevent it from injuring are of no avail, in which case the owner is at fault merely by keeping such an animal.”

In the Delisle case, Justice Breaux says:

“In our review of the authorities upon the subject, we have not found that under the civil law from which the articles of our Civil Code are derived, it is always held that the character of the animal and knowledge of its propensities to do harm is of no consequence in passing upon the responsibility of the owner. We take it that the rule is the other way in so far as the damage is caused by an accident not to be foreseen or guarded against, as when it arises from a vis major. Article 2321 of the Civil Code (Article 1385 C. N.) is founded upon the presumption that the fault is chargeable to the owner of the animal that caused the damage, or to the person in whose use or under whose care it was at the time of the accident, and that presumption can be made to give way only in the presence of proof either of an unforeseen event, or by the imprudence of the one injured. Fuzier-Herman, Vol. Ill, p. 905, No. 37.
“The French , commentators have approvingly referred to this view. From Laurent, Vol. XX, p. 675, we quote: ‘That is to say there is no responsibility when there is no fault, the one to whom the damage is imputable should be permitted to prove that he was not at all at fault. But it is only needful to prove the lightest fault (culpa levis) to hold the owner responsible’.”

In the Martinez case, Justice Breaux quotes Laurent, Vol. XX, p. 675, as follows:

“La jurisprudence francaise est dans le meme sens. II a ete juge par la cour de Paris que le proprietaire d’un animal ne saurait etre declare responsible du dommage lorsqu’il n’a eommis aucune espece de negligence, et qu’il n’a pu ni prevoir ni empecher Taccident dammageable.”

Justice Breaux adds';

“While the least act of negligence should be enough to hold one who owns a dog, yet it must appear that there was some negligence, however slight.”

In the Bentz case, Justice Land quotes a part of the above question from Laurent and says:

“According to the same writer the law presumes that the owner of the animal is in fault, and the burden of proof is on him to show that he was without the slightest fault and did all that was possible to prevent the ip jury. Laurent gives as an example the case of a gentle horse frightened beyond control by unusual noise in a street. This same doctrine was announced in Shawhan vs. Clarke, 24 La. Ann. 390, where the running away of a horse was caused by a third person recklessly driving his vehicle against the buggy of the defendant.
“Laurent says that the question whether the legal presumption of fault on the part of the owner can be rebutted by proof that he was without fault was a subject of controversy among the commentators, but that the doctrine has been recognized in the jurisprudence of France.”

Under this Louisiana jurisprudence, we think the following doctrines are settled: That the owner of an animal is responsible for the damage it causes if he is guilty of the slightest fault or negligence, but may rebut the presumption by contrary proof. Though, according to some of the French commentators, he is limited in this rebuttal to showing vis major or contributory negligence on the part of the party injured, it would seem that, according to Justice Breaux’s opinion in the Martinez case, supra, that in the ease of an animal that had given no previous reason to suspect that it would do injury, this fact would be sufficient to rebut the presumption of fault or negligence.

In the Martinez ease, differently from the Bentz case, the animal had apparently been owned by defendant a long time.

The dogs in the present case were not vicious as were those in the Louisiana cases where liability was found. Does this fact differentiate the case from those and bring it within the doctrine of the Martinez case where liability was denied?

Article 2321 reads:

“The owner of an animal is answerable for the damage he has caused;* but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.”

In the Delisle ease, supra, which was one reviewing the decision of the Orleans Court of Appeal, it appears that the court had interpreted this article as fixing on the owner of an animal causing injury an absolute responsibility without qualification or restriction; (we presume, of course, the court meant to except the restrictions expressed in the article itself); citing Marcade and Demolombe, implying that the animal’s propensities, and saying that the owner’s knowledge thereof, were immaterial under our jurisprudence.

This view was rejected by the Supreme Court, which held, as shown above, that some fault or negligence on the part of the owner was necessary, and said:

“In our view of the authorities upon the subject, we have not found that under the civil law, from which the articles of our Civil Code are derived, it is always held that the character of the animal and knowledge of its propensities to do harm is of no consequence in passing upon the responsibility of the owner. We take it that the rule is the other way insofar as the damage is caused by an accident not to be foreseen or guarded against, as when it arises from a vis major."

If Article 2321 were taken at face value, the view of the Court of Appeal would seem correct. The first clause says, broadly:

“The owner of an animal is answerable for the damage he has caused.”

The next clause provides not an exception from the rule of responsibility, but a means of discharging it; that is, of satisfying it in case the animal had been lost or had strayed more than a day. In either of these cases the obligation is incurred, but the owner may discharge it by abandoning the animal to the injured party. Of course, if he does not choose to abandon it, he remains responsible for the full amount of the injury.

The third clause provides that this privilege of discharge by abandonent shall not be enjoyed by an owner who has turned' loose a dangerous or noxious animal.

Evidently, though, the French authorities and our own Supreme Court regard the article as subject to the provisions of Article 2315 as to fault and to those of Article 2316 as to negligence or imprudence.

Considering these articles together, it is clear that liability rests on two bases, namely:

1. Injury by an animal; and

2. Fault or negligence on the part of the owner.

In the clause providing for responsibility, nothing is said of the character of the animal or the owner’s knowledge thereof To the party injured it makes no difference whether the animal is vicious or kind; or, if vicious, whether the owner knows it or not. So far, therefore, as responsibility rests on the basis of injury the animal’s character and the owner’s knowledge of it would seem to be imma terial. These can be material then only so far as they affect the question of the owner’s fault or negligence. But for Ar tides 2315 and 2316 it might be claimed that, under Article 2321, this character and knowledge are wholly immaterial, the matter of character under Article 2321 having no bearing on the case except to deprive the owner of the privilege of satisfying his responsibility by abandoning the animal where it is dangerous or noxious and has been turned loose by him.

But in view of the Supreme Court’s interpretation of Article 2321 in connection with Articles 2315 and 2316, the character and the owner’s knowledge thereof are material so far as they help to determine the question of fault or negligence of the owner.

As to the owner’s knowledge of the character, the presumption of negligence includes the presumption that he knew this character if bad and throws on him the burden of proving not only that he was unaware of it but that he was also non-negligently so.

As to the character itself, supposing the owner to know it, it seems to us that if bad it is a matter of degree; the owner’s fault being greater or less according as the character is more or less bad.

It is to be observed, too, that the clause in Article 2321 treating of character (besides doing so,, as we have seen, only to declare it a ground for withdrawing the privilege of discharge by abandonment) speaks not of a vicious or ferocious animal but of dangerous or noxious animals. If an animal be dangerous or noxious, therefore, from whatever cause, it comes within the clause.

In 3 Corpus Juris, 97, the law is thus stated:

“At common law, the owner of a dog is not liable for injuries caused by it, unless it is vicious and notice of that fact is brought home to him. But when it is once established that the1 dog is of a vicious or mischievous nature, and that the person owning or keeping it has knowledge of that fact, the same responsibility attaches to the owner to keep it from doing mischief as the keeper of an animal naturally ferocious would be subject to, and proof of negligence on the part of the owner of the dog is unnecessary.
“The intent with which a dog inflicts an injury is not material, and its owner, having knowledge of its evil propensity, is liable for injuries which it may inflict in playfulness.”

On each of these propositions cases are cited. Supporting the one as to the immateriality of the dog’s intent are cases i-rom the District of Columbia, Maine, Massachusetts, Missouri, New Jersey, Vermont and Quebec.

In the Vermont case, Crowley vs. Groonell, 73 Vt. 45, 50 Atl. 546, 87 Am. St. Rep. 690, 55 L. R. A. 876, where the dog did not bite plaintiff but jumped up, put his feet on him and threw him to the ground, injuring him, the defense was that the dog was acting in play. The court said:

“It makes no difference whether the animal was of cross and savage disposition and committed the injury by reason of its viciousness and ferocity, or whether such injury resulted from good nature and playfulness—the intent of the animal is not material. The owner or keeper, having knowledge of its . disposition to commit such injuries, must restrain it at his peril, and it is no answer to say that the animal was not cross or savage, and was in good nature and playful.”

Various cases are then cited, including an English case where the injury was the chasing and killing of game.

In one of the Missouri cases, Merritt vs. Matchett, 135 Mo. App. 176, 115 S. W. 1086, plaintiff testified that the dog following a wagon when opposite her premises suddenly and without provocation charged at her, that it jumped her front fence, rushed on her porch and jumped at her in a ferocious and terrifying manner,' and that she, greatly excited, managed to push him off with her arm. The dog did not bite her, but the fright, she being pregnant, caused her to miscarry. The court said:

“Whether savage or merely playful, if he had acquired the habit of assailing people with the appearance of ferocity and viciousness and subjecting them to great fear of bodily injury, such mischievousness made him a menace to human safety, and imposed on defendant the duty of restraining him from running at large where he would be likely to encounter and terrify women and children. It matters little to a person whether the dog that bit him is in fun or in earnest, and we apprehend that it would afford plaintiff small consolation were we to tell her that she should be resigned to her afflictions since the dog did not intend to bite, but only to scare her.”

. In the Montgomery case, supra, Mr. Justice Fenner’ said:

“The rule at common law is ancient and well settled that one keeping a dangerous or mischievous animal, with knowledge of its propensities, ‘must at his peril keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer in damages’.”

After citing various common law authorities, he goes on:

“Our law certainly does not afford a more lenient rule. The French courts and commentators, in applying Article 1385 of the Napoleon Code, corresponding to our own Article 2321, enforce the same doctrine.”

If the rule given in 3 Corpus Juris, 97,

“At common law the owner of a dog is not liable for injuries caused by it unless it is vicious and notice of that fact is brought home to him,”

correctly expresses the common law, then it seems to us that our law, as expressed in Article 2321 (even as qualified by the other two articles) is much more favorable to the injured party. At common law the burden is on him to prove negligence on the part of the owner of the dog’s vicious propensities, whereas under our law this is presumed without proof. Then, too, according to Justice Fenner’s understanding of the French authorities, as stated in the Montgomery case, supra, the character of the animal and the owner’s knowledge thereof are not material, the exception (meaning, we take it, the sole exception) being vis major, contributory negligence and the like.

It is true Justice Breaux, in the quotations given above, from the Delisle case, says that this character and knowledge are not always to be held to be of no consequence; but then he says:

“We take it that the rule is the other way insofar as the damage is caused by an accident not to be foreseen or guarded against, as when it arises from vis major.”

There being no accident in this case, there is no substantial difference between these two statements so far as concerns any question here involved.

Again, as shown by the quotation from the Bentz case, supra, some of the French commentators went to the extreme of holding that the presumption of fault on the part of the owner was unrebuttable.

Defendant’s counsel cite Seegmuller vs. Pahner, 29 Ohio Circuit Court, 693, which we find referred to on page 98 of 3 Corpus Juris as follows:

“Where - a child was frightened, causing it to fall, and the owner was held not liable, the court said: ‘We know of no case where one has recovered for injury caused by a dog barking. It might be a nuisance to keep a barking dog, but hardly a ground for an injury for keeping a vicious dog’.”

We have not had access to this case, and are not advised what the dog did, if anything, beyond barking, or how close it approached to the child. If, though, in addition to barking at the child it ran after and jumped at it, approaching within two or three feet of it while doing so, it seems to us contrary to the weight of authority.

We think the doctrine of the Merritt and Crowley cases sounder and more consistent with our Codal provisions and also, with our jurisprudence as well as the jurisprudence of the other states, and certainly more in accord with that great principle which, originating in the Roman law, has been adopted in every enlightened system of jurisprudence, namely: Sic utere tuo ut alienum non ladaes.

On this review of the authorities, it is our opinion that the law makes no distinction between an animal dangerous from viciousness and one merely mischievous or dangerous from playfulness, but puts on the owner of both the duty of restraint when he knows of the animal’s propensities; that he is presumed to know the animal’s propensities whether it is dangerous from either cause; that in this case the defendant has not rebutted this presumption that the dogs in this case were dangerous, being given to running, jumping and barking at passersby that defendant might reasonably have anticipated that this propensity would lead to the infliction of an injury on someone, such as actually occurred in this case, or otherwise—if, indeed, the mere fright to which passersby were subjected is not itself an injury or at least an invasion of their right to travel the streets unmolested; that it was therefore his duty to restrain the dogs; and that his failure to do so was sufficient negligence to make him liable for the injury suffered by plaintiff.

In the Martinez case, supra, the court says the dog was not dangerous but does not say whether it was mischievous or not.

If Mrs. Woods, a calm and unmenaced spectator, could not tell whether the dogs intended to bite or were merely playing, the plaintiff is excusable, we think, for the interpretation she put on their actions and in the emergency is not to be held guilty of contributory negligence for taking the measures which, wise or unwise, seemed best to her at the time to protect herself from injury.

Defendant does not insist in this court on the defense made below that he is not liable because not the owner of the dogs. There is no merit in the defense.

2 Am. & Eng. Ency. of Law, 2nd Ed. 375, gives the rule, supported by many decisions, as follows:

“A person, although not the owner of a vicious dog, may make himself liable to others as owner by knowingly keeping or harboring the dog upon his premises after knowledge of the vicious propensities.”

The principle holds good, we think, when the dogs are not vicious but mischievous.

AMOUNT OF DAMAGE

Plaintiff’s leg was broken near the ankle. Doctor Pirkle, who first treated her, thought the fracture was at the ulna end of the tibia, or large bone; but not being certain whether one or both bones were broken, advised the taking of an X-ray picture, which was done at the Charity Hospital; but he did not see it nor has • it been introduced in evidence. Doctor Pirkle put the leg in splints. In a few days she went to the Charity Hospital where the splints were taken off and the leg encased in a plaster of paris cast. This was removed in about five days and replaced by another cast, which remained about three weeks. After being in the hospital confined to bed about twelve days, jjlaintiff was taken home in an ambulance :3lid was there confined to bed about six •weeks. She suffered considerable pain. !She testified at the trial—February 24, 1B25—that her leg still hurt her and was swollen but that she could walk on it. Her daughter says she has to use a stick. Both plaintiff and her daughter say that before the accident plaintiff was earning upwards of $12.00 a week and plaintiff says she is now earning $6.50 a week.

Mrs. Woods; who took. plaintiff home in her automobile just after the accident, says that while doing this plaintiff, in reply 'to a question as to where she was working, said she was not working for anybody at the time but was nursing her sick sister. Mrs. Woods was not* asked whether plaintiff stated how long she had been so engaged. We have no doubt that plaintiff did make the statement to which Mrs. Woods testifies, but we think it not sufficient to destroy plaintiff’s testimony that she was working for four named ladies who, she says, paid her sums aggregating $11.50 a week, besides earning a dollar occasionally by minding children during the evening or cooking a dinner for ,a family. She might have been thus engaged regularly but temporarily stopped a while to nurse her sister. ■ None of the ladies named were called to contradict her.

We think an award of two thousand dollars proper, this being proportionate to the allowances made in the somewhat similar cases of:

Schneller vs. La. State R. M. Assn., 148 La. 88; (allowance $3000.00).
Mercer vs. Rosenblath, 156 La. 249, 100 South. 414; (allowance $2000.00).
Gomez vs. Tracey, 115 La. 827, 40 South. 234; (allowance $1500.00).
Dendy vs. Huie-Hodge Lumber Co., 142 La. 404, 76 South. 817; (allowance $2000.00).

Accordingly, it is decreed that the judgment of the lower court is reversed and that plaintiff, Narcis Mercer, have judgment against defendant, J.. G. Marston, for the sum of $2000.00 with five per cent per annum interest thereon from this date and costs of both courts.


source: Caselaw Access Project

author: CARVER, J.

license: Public Domain

text:
    No. 2471
    Second Circuit
    BREWSTER & ROACH v. FRED HAMILTON
    (December 1, 1925, Opinion and Decree.)
    (See pp. 178 and 182, herein.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Evidence—Par. 53, 60, 344.
    The burden of proof is on the plaintiff who alleges a verbal contract with defendant by which defendant agreed to pay for anything which his laborers should order from the plaintiff to prove the contract. Defendant’s sworn denial of this unbusinesslike contract together with other circumstances make it necessary to give judgment for the defendant.
    2. Louisiana Digest—Appeal—Par. 564.
    Defendant who does not appeal from the decision of the trial court or move to amend the judgment in the Court of Appeal cannot be granted any relief even though the proof justifies claim.
    Appeal from the Third Judicial District Court of. Louisiana, Parish of Union, Hon. S. D. Pearce, Judge.
    This is a suit to collect the price of goods furnished to defendant and his laborers. There was judgment for plaintiff for the amount furnished defendant which defendant admitted but judgment against plaintiff for the amount of goods purchased by defendant’s laborers.
    Plaintiff appealed.
    Judgment affirmed
    Elder, Thompson & Digby, of Ruston, attorneys for plaintiffs, appellants.
    H. E. Dawkins, of Ruston, attorney for defendant, appellee.
   CARVER, J.

Plaintiffs sue defendant for $727.40 for goods furnished during 1923 and 1924, $47.82 to defendant himself and the balance to laborers on his plantation.

Defendant admits liability for the $47.82 but denies it as to the balance, claiming, as to such balance, that he did not authorize the plaintiffs to furnish the laborers the goods sold them.

On the trial there was no written evidence introduced to support plaintiffs’ claim and defendant objected to parol testimony offered on the ground that—

“* * * it was an attempt to'prove a surety contract and assumption of a debt of a third person, which the law requires must be in writing, and, further, that it is irrelevant and immaterial under the pleadings for the reason that it is therein alleged that the goods were sold and delivered to the defendant Fred Hamilton and no agency is therein set forth.”

The district judge overruled the exception and let the testimony in, subject to the objection.

Dan Brewster, one of the plaintiffs, was asked the question:

“I will ask you whether or not Mr. Fred Hamilton authorized you to sell the goods indicated on the account attached to suit No. 8157 which the various parties to whom the “goods were delivered. I will ask you to state whether or not Mr. Fred Hamilton authorized you to deliver those goods to those parties and charge them to him?”

And he answered:

“Yes, sir.”

And, further:

“Q. Did he tell you that yourself?
“A. I don’t know whether it was me or not; I don’t remember.
“Q. Can you recall his exact words when he told you?
“A. I don’t know exactly, but he told me to let his darkies have stuff, and told me who they were, and said he would pay for them.”

He first stated several times that this was in January, 1922, but afterwards said he meant 1923, having begun business only in 1923; that he did not remember any one being present when defendant told him this or whether before this the laborers had gotten any goods or not; that he did not know of defendant’s ever inquiring as to the state of the account; and that he did not send a statement until fall.

“Q. Never did ask you another question?
“A. Yes, sir; later in the summer.
“Q. And told you to let them have what they wanted?
“A. He said let them have what he sent them after.
“Q. Did you understand he would send written orders.
“A. No, sir.

Later he was asked:

“Q. Mr. Brewster, had these defendants or any of them traded with your firm on this same basis for any previous year other than that shown on the accounts and come in and settle up without any controversy?
“A. Yes, sir.”

Afterwards:

“Q. As far as you are concerned, he didn’t tell you especially to let his darkies have anything in 1923, did he?
“A. Not that I remember of now..
“Q. As a matter of fact, you just assumed that when he told you to let them have their stuff in 1922, you assumed that you would let them have it until he told you to stop?
“A. No, sir; he told Mr. Roach.
“Q. He told Roach in 1923?
“A. Yes, sir.
“Q. Were you present?
“A. No, sir; I don’t think I was.
“Q. But he didn’t tell you in 1923 to let them have anything?
“A. No, sir.
“Q. Were you letting them have stuff in 1923 on the direction he had given you at the first of 1922 or were you letting them have it on the direction he gave Roach?
“A. On what he gave Roach.”

In these last questions and answers the witness meant 1923 instead of 1922 and 1924 instead of 1923.

Roach testified as follows:

“Q. Mr. Roach, I will ask you whether or not Mr. Fred Hamilton ever authorized your firm to let his hands, darkies working on his farm, have supplies and charge these supplies direct to Mr. Fred Hamilton?
“A. He did.
“Q. Did he authorize you to do that in the years 1923 and 1924?
“A. In the spring of 1924 I asked him about his hands, told him they were going pretty strong with their accounts, and he said ‘all right I have got to supply them out of some man’s store, it might as well be Brewster and Roach and charge them to me’.” ■

On cross-examination he testified:

“Q. You say Mr. Fred Hamilton at the beginning of the year 1924 told you to let them go ahead, he had to furnish them out of somebody’s store?
“A. Yes, sir.
“Q. What part of 1924 was that?
“A. Late spring.
“Q. You had already furnished them up to that time?
“A. Yes, sir, by his orders.
“Q. Have you got those written orders?
“A. They Were not written orders, he told Mr. Brewster.
“Q. Where, if at any place, did he tell Mr. Brewster to let them have anything for 1923?
“A. I have Brewster’s word.
* * *
“Q. Who was present besides yourself and Mr. Hamilton when he told you he had to furnish his hands out of somebody’s store?
“A. Truston Bryant.
“Q. Did he give you then a written obligation to pay what they had already traded?
“A. No, sir.
“Q. Did he tell you then and there that he would pay for what they had already traded ?
“A. Yes, sir.
“Q. He told you that verbally that he would pay for what they had already traded?
“A. Yes, sir.
“Q. And told you verbally to let them have other stuff?
“A. Yes, sir.
“Q. Did lie ever send you any written orders of any kind during the whole time?
“A. No.
“Q. Did he ever say anything to Mr. Hamilton about what his hands were trading after that time?
“A. Not until in the fall.
* * S:
“Q. This is the only occasion in 1924, this is the only occasion that he told you anything about letting his hands have stuff out of the store in 1924?
“A. Yes.

Truston Bryant testified as follows:

“Bob told Fred that he was going pretty strong, the negroes was, and asked him if it was all right, and Fred says, just go ahead and let them have it, I will pay it at the end of the year.”

On cross-examination he was asked:

“Q. You understood that they had already made accounts?
“A. I suppose they had the way they were talking.”

Cleve Hammons testified as follows:

“Q. Mr. Hammons, did Mr. Fred Hamilton ever say anything to you about an account he had with Brewster and Roach?
“A. Yes, sir.
“Q. What did he say?
“A. I gave him a statement, and he said ‘my cotton is in the Bureau, I haven’t got any money right now, and says if they don’t send me some in a few" days, I will go to Monroe and get some and pay you boys, I owe them boys up yonder probably more than I do you.”
“Q. Was he speaking of Brewster and Roach?
.“A. I suppose so; they were the only ones there.
“Q. He told you he owed Brewster and Roach more than he did you?
“A. Probably more, he said he didn’t know how much it was.
“Q. Do you remember about how much he owed you at that time?
“A. I think it was either three or four hundred dollars, I wouldn’t be positive.
“Q. When was it he told you that?
“A. In the fourth or fifth month in last year, 1924.”

J. W. Haile testified that he collected for Brewster & Roach and talked to defendant about his account; that he did not have an itemized statement of it but just a statement on the day book; and, further—

“The best I remember he said he wouldn’t settle the account just as it stood, just as the amount was; he said it looked too big, and he took me in his office and opened his books and said that the red ink was cash money he advanced his hands and that there was some money advanced that is quite a bit during the year; it seemed that it went more than four or five months, I didn’t notice especially.”
“Q. After discussing this account with him, did he deny being responsible for the account by reason of the fact that it was got by his negroes?
“A. No, sir; he didn’t deny the account.”

The accounts sued on are as follows:

That of defendant himself, $47.82.

Fred Hamilton, by J. D. Jackson, $68.30, running from October 29, 1923, to September 10, 1924.

Fred Hamilton, by Albert Woods, $43.94, running from October 29, 1923, to July 19, 1924.

Fred Hamilton, by Dave Woods, $141.40, running from November 3, 1923, to October 6, 1924.

Fred Hamilton, by William Jackson, $55.50, running from October 27, 1923, to July 26, 1924.

Fred Hamilton, by Bud Manning, $59.60, running from October 26, 1923, to May 25, 1924.

Fred Hamilton, by Jessie Wilson, $118.65, running from October 29, 1923, to October 15, 1924.

Fred Hamilton, by Panola Griffin, $8.58, running from October 27, 1923, to November 19, 1923.

Fred Hamilton, by Will' Archie, $117.45, running from July 22, 1923, to October 13, 1924.

Fred Hamilton, by Lillie Jenkins, $14.75, running from April 18, to October 15—pre-sumably in 1924.

Fred Hamilton, by Abe Archie, $17.50, running from May 10, 1924, to June 14, 1924.

Defendant denies authorizing plaintiffs to sell his laborers goods on his account at any time; says he does not remember the remark testified to by Hammons; admits that in the fall of 1923, he paid plaintiffs six or seven hundred dollars for his laborers, but says he paid it at their request, they having that much coming to them and he was not responsible for it; says he did not know of the claim sued on until he received statement from plaintiffs in the fall of 1924; that he offered Haile a check for his personal account but made no promise or statement as to the rest of the claim.

He further says that he advanced his laborers himself what he thought their crops justified, which was $200 per horse worked; that Manning, Dan Woods, Wilson, Albert Woods, William Jackson and Will Richie worked two horses each and Dellie Simpson four horses; that J. D. Jackson worked for his father, William Jackson, and that Lillie Jenkins was cooking for wages.

Plaintiff’s theory is that defendant gave his laborers, even the one working for wages, carte blanche to get on his account from plaintiffs whatever they might wish, without limit either as to time or amount, and without inquiring or being informed as how they were using this extraordinary privilege; and this, too, while he was supplying them himself what he thought they needed and their crops warranted. The' proof of so unusual and unbusinesslike a contract should be strong, indeed, and in this case we do not find it strong enough to overcome defendant’s sworn denial.

Haile, in his testimony, does not go to the extent of saying that defendant made an admission, but, if so, the law regards such testimony as the weakest sort of evidence, and this latter applies also to the testimony of Hammons.

Roach says the conversation to which he and Bryant testify, occurred in the late spring. At that time a considerable part of the goods had already been sold, namely:

Up to March 22, $41.40 of the $68.30 J. D. Jackson account.
Up to March 21, $16.65 of the $43.94 Albert Woods account.
Up to April 2, $10.30 out of the $23.75 Dave Woods account.
Up to April 10, $95.85 out of the -$141.40 Dellie Simpson account.
Up to April 12, $48.75 out of $56.50 William Jackson account.
Up to April 19, $49.90 out of $59.60 Bud Manning account.
Up to April 12, $74.60 out of $118.65 Jessie Wilson account.
Up to April 24, $52.00 out of $117.45, Will Richie account.

Roach’s testimony does not fix the time when he claims the conversation occurred with defendant, except to say that it was in the late spring.

As to the goods furnished, before that conversation, there is no pretence that defendant authorized the sale, unless we are to accept the testimony of Brewster as to the arrangement in January and unless, further, we should presume that the authority thus given was intended to extend over into the year 1924.

It will be observed that the earliest item on any of the accounts was October 26, 1923. Defendant had evidently paid all claims up to that time.

While Brewster might have understood that the arrangement made in the previous January, if so made, was to extend over into 1924, and that advances for that year were to begin as early as October 26, 1923, we cannot believe, on the proof submitted in this case, that defendant so intended.

As was the case in the Joe Hamilton case this day decided, an inspection of the account sued on shows relatively a small amount of provisions, which usually constitute the main portion of advances made to laborers on plantations.

As stated in the case of the same plaintiffs versus Wilbur Hamilton, this day decided, this case was consolidated with that one and with the case of the same plaintiffs against Joe Hamilton.

In the Wilbur Hamilton case, we give additional reasons which, in our opinion, weaken the plaintiffs’ side and strengthen the defendant’s side of the case, which reasons need not be repeated here.

As in the Wilbur Hamilton case, defendant herein made a tender which was not sustained by the district judge, and complains of that and of being taxed with any of the costs; but were.he entitled to this relief in the lower court, about which we express no opinion, we cannot grant it here because he has not appealed nor moved to amend the judgment.

The district judge gave judgment for plaintiffs for defendant’s personal account of $47.82 besides interest, rejecting plaintiffs’ demand for the balance, and condemned defendant to pay the costs.

The judgment is affirmed.


author: ODOM, J.

text:
    No. 2454
    Second Circuit
    THOMAS J. LONG v. ALABAMA PETROLEUM COMPANY, ET AL.
    (November 4, 1925, Opinion and Decree.)
    (December 17, 1925, Rehearing Refused.)

      {Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 159, 159 (a).
    Under Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 216 of 1924 an injured employee who proves total disability due to the fact that his ribs were broken or injured causing internal injuries can recover compensation during the time of total disability not to exceed four hundred weeks.
    2. Louisiana Digest—Master and Servant —Par. 160 (e).
    Under Section 9, Subsection 1 of the Employer’s Liability Act No. 20 of 1914 as amended by the Act 38 of 1918, the defendant has the right to have the plaintiff examined at any time previous to the trial, but more than three months after the trial is too late to require plaintiff to submit to an additional examination. At the end of a year from the date of the judgment, the defendant may have the plaintiff again examined.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. F. X. Ransdell, Judge.
    This is a suit for compensation brought by an injured employee under Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellee.
    Browne & Browne, of Shreveport, attorneys for defendant, appellants.
   ODOM, J.

Plaintiff brings this suit under the workmen’s compensation act to recover compensation of $20.00 per week for 400 weeks.

He alleges that he was employed by defendant as a laborer on a drilling rig in Webster parish at a weekly wage of $37.50, and that on January 26, 1925, while at work, he received injuries which have permanently, totally disabled him to do work of a reasonable character.

It is alleged that the Maryland Casualty Company Warranted and insured the Alabama Petroleum Company and has agreed to pay all such sums, in cases of this kind, as the employer may be ordered to pay, and that said insurance or guarantee company is a proper party defendant.

The Alabama Petroleum Company answered admitting the employment of plaintiff and the weekly wage and the injury as alleged but denying that the injury to plaintiff was as serious as claimed by him.

It is especially alleged in answer that defendant has not refused to pay plaintiff compensation and that if there were delays in making the payments such delays were due to the fact that respondent was waiting for a report from the physician who was treating plaintiff as to the extent of his injuries.

And it is further alleged that plaintiff is not permanently injured but was only partially, temporarily disabled and that he has suffered disability to labor for a period of only sixteen weeks.

The Maryland Casualty Company answered with practically the same admissions and denials as those set up by its co-defendant, and especially alleged that plaintiff has been paid seven weeks’ compensation at $20.00 a week and prays that said amount be credited on whatever judgment may be rendered against it.

•There was judgment in the lower court against both defendants in solido for compensation in favor of plaintiff at $20.00 per week during plaintiff’s disability, not to exceed 400 weeks, less a credit of $140.00 paid.

From this judgment defendants have appealed.

OPINION.

The particular kind of work which plaintiff was doing when injured was the pulling of rods and tubing out of. old wells. During these operations something hit the plaintiff on the shoulder and side, knocking him down'and breaking, as he thinks, three of his ribs.

He says he was rendered unable to work for quite a while.

Later on, at the suggestion of his brother who lives at Smackover, Arkansas, he went to that place and was given employment in the Smackover oil fields by the Amanto Petroleum Company as a gauger, which is light work. He held the place for about fifteen days but had to give it up because he could not climb the steps to the top’ of the tanks.

He testified that exercise of any kind causes pain in the region of the kidneys and that his condition has not improved and he is not able as yet to do work of a reasonable character. He says:

“When I do anything that will cause this pain in here it will cause my kidneys to throw off water that looks like blood.”

He further says that any kind of exercise gives him pain. That he cannot walk or allow his body to remain in one position for very long at a time, although, he says, he sleeps very well and usually about eight hours' during the night, but that he cannot lie comfortably in one position very long.

He has had no work since the latter part of April—about six weeks prior to the trial.

He was injured January 26, 1925.

He indicates a willingness to work but says he is unable to do so on account of the condition of his kidneys and his side.

Doctor L. H. Pirkle, who was called as a witness by defendants, treated the plaintiff immediately following the accident.

He testified that he found an injury to the right side in the region of the ribs and at the time he suspected that his ninth and tenth ribs were fractured. He ordered an x-ray made, which showed that the tenth and eleventh ribs on the right side were fractured, with some displacement of the fragments of the eleventh rib, about three-eighths of an inch, with a curving towards the right side. He had an examination of plaintiff’s urine made, which showed—

“a fairly large amount of pus present at that time.”

He treated the patient from 28th of January to 16th of February, and says he was in a fairly good condition when he discharged him, and says he was a little sore over his side, had some callous over the affected ribs, but able to get around and doing fairly well, and says his injuries were about as completely healed as could be expected at that time.

Doctor Pirkle’s attention was called to the testimony of Doctor Butler who made an examination of plaintiff’s urine a few days previous to the trial, which showed blood and pus, and he was asked what that would indicate, and he said:

“Well, that would indicate that he has some inflammatory condition in the genitourinary tract. It would be impossible from that alone to tell where it was coming from.”

He said there would have to be some further examination in order to tell just where it was coming from, and that the blood and pus might be coming from the kidneys, the bladder, the urethra or any where else along the tract. He says there are no indications that plaintiff had any veneral disease and that

“We found no indications of anything except this pus in the urine, which would indicate trouble in the tract somewhere that we did not locate; * *

His attention was called to the testimony of Doctor Cassity and -of Doctor Butler with reference to the condition of plaintiff’s urine and that he had pyloritus and was asked if he considered the condition serious, and he said:

“That would be determined by the character of the inflammation; it might be of such character that it would respond readily to treatment and it might not respond readily.”

He further testified that in his opinion the injury described would not produce pus in the kidneys but it might so lower the vitality of the kidneys that a germ might be deposited in them and set up inflammation and cause pyloritus; and he said the condition might or might not be serious.

Doctor Boyce, who is also connected with the Tri-State Sanitarium, made an examination of the plaintiff in connection with Doctor Pirkle’s treatment of him and gave about the same testimony with reference to the injury and the pus in the urine.

He made another examination in April and found no pus in the urine. He says, however, that at the time patient was in the Sanitarium he said he had had gonorrhoea while he was in the navy and for that reason could not say what is the cause of plaintiff’s present trouble; that if he had ever had a venereal disease that might be the cause of his present condition.

Plaintiff says he never had any venereal disease and says Doctor Boyce is mistaken in saying that he admitted having had gonorrhoea. - He explained that while he was in the Sanitarium, Doctor Boyce was treating a patient who had a prostate case and while he was present the question of medicine used came up and that he told Doctor Boyce that while in the navy he had seen a ease of that kind treated and from that learned something of the treatment administered.

We think Doctor Boyce is mistaken about what the* plaintiff told him; and we can see how1 he fell into the error. He no doubt treats many patients and it would de difficult, we imagine, for him to recall accurately what each patient said without a record. In view of the fact that plaintiff says he has never had any venereal disease and that both Doctor Pirkle and Doctor Boyce say there are no indications at the time he was first treated that he had ever been so afflicted and the fact that he was a strong, able, bodied man, able to do heavy manual labor prior to the accident, we conclude that the condition which the physicians found at or just before the trial were brought about by the accident.

Doctor Willis P. Butler, a bacteriologist, was called by the plaintiff. He testified that during the week preceding the trial, which was on June 2, 1925, he had examined several specimens of plaintiff’s urine, one taken on Thursday, one on Friday and one on Saturday, and he said the examinations showed—•

“There was quite a large amount of red blood and some albumen found; * * *. There was some pus and blood in the urine in all four samples.”

He said the condition of the urine made him suspect inflammation or infection, but he, of course, does not know the cause. He said, however, that it could not be chronic nephritis or Bright’s disease.

Doctor C. H. Cassity made an examination of the plaintiff on March 19th. He said he found a knot on the tenth rib just over the upper portion of the kidneys, and that it appeared to be sore over the injured area, and that when plaintiff bent over there was a trembling and jerking of the muscles; that he experienced considerable difficulty in bending over and had a slight amount of fever. That there was “sufficient amount of pus in the urine to be seen with the natural eye”.

And he gave it as his opinion that the pus was coming from the kidneys. He further gave it as his opinion that the condition which he found was caused or brought on by the injury and could have been caused in no other way.

From all the testimony we are convinced that plaintiff is suffering serious disability and that he was not at the time of the trial able to do manual labor of a reasonable character.

Doctor Pirkle and Doctor Boyce testify that it was impossible to determine whether the blood and pus in the urine came from the kidneys, from the prostate or from any other portion of the genito-urinary tract and that a further examination was necessary in order to determine the source of infection, and counsel for defendants asked the trial court to appoint an expert “to find out how this man is”, and the court said, “that is exactly what these doctors are testifying about”, and refused to appoint experts.

This took place during the course of the trial.

Counsel for defendant did not except to the ruling of the court and filed no motion for a continuance in order to have such examination made, but continued with the examination and cross-examination of the witnesses.

Subsection 1 of Section 9 of Act 20 of 1914 as amended by Act 38 of 1918 provides :

“That an injured employee shall submit himself to examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter, as often as may be reasonably necessary and at all reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payment under this act.” ■

The defendant made no request, so far as the record shows, to have the plaintiff examined previous to the trial. They summoned and examined two physicians who had treated plaintiff and on their testimony they relied. Having summoned Doctors Pirkle and Boyce as their witnesses they are presumed to have known when they went into the trial what their testimony would be. They cannot, therefore, plead surprise. They knew or are presumed to have known that these physicians would testify that they could not tell the source of infection and the cause of the blood and pus in the urine and they should have previous to the trial called on plaintiff to appear and submit to further examination. They did not do this but took the chance of a favorable judgment on the testimony adduced. More than three months after the trial in September and October they wrote plaintiff requesting that he appear for further examination, but that was too late.

At the expiration of one year from the date on which the judgment takes effect they can have the case re-opened for further examination, according to the provisions of the statute.

For the reasons assigned, the judgment of the lower court is affirmed at the cost of defendants.


author: ODOM, J. REYNOLDS, J.

text:
    No. 2470
    Second Circuit
    EDWIN G. JAMES v. SPENCE & GOLDSTEIN, INC., ET AL.
    (November 4, 1925, Opinion and Decree)
    (December 10, 1925, Rehearing Refused)
    (On writ to Supreme Court, judgment Court of Appeal modified.)

      (Syllabus by the Editor.)

    1.Louisiana Digest—Master and Servant —Par. 159 159 (a).
    A carpenter who accidentally stuck a splinter in the palm of his right hand which caused permanent partial disability to do work of any reasonable character is entitled to judgment under Section 8, Subsection 1 (e) of the Workmen’s Compensation Act No. 20 of 1914, as amended by Act 216 of 1924.
    2. Louisiana Digest—Master and Servant —Par. 160 (I).
    The Appellate Court will not remand a Workmen’s Compensation case under Act No. 20 of 1914 for further evidence as to what the injured employee is able to earn if the evidence clearly shows that the injured employee is partially disabled and the testimony of the injured employee that he is able to earn no more than $10.00 per week is corroborated by surrounding -circumstances and other evidence.
    3. Louisiana Digest—Master and Servant —Par. 159, 159 (a).
    Where a member of the body is so injured as to cause disability to labor and earn wages, the compensation should be fixed according to Clauses (a), (b) and (c) of Subsection 1 of Section 8 of Act 20 of 1914, fixing the compensation for disability to labor, and not according to Section 8, Subsection 1 (d) of Act 20 of 1914, fixing the amount for the loss of certain members of the body.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. F. X. Ransdell, Judge.
    This is a suit brought by an injured employee for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys' for defendants, appellants.
   ODOM, J.

Plaintiff was employed by defendant, Spence & Goldstein, Inc., as a carpenter at a weekly wage of $48.00, and on December 22, 1924, while at work, he stuck a splinter in the palm of his right hand, producing an injury which, he alleges, caused paralysis in the hand, the fingers and the thumb, and which injury, he alleges, radiated towards the • right shoulder, causing partial loss of the use of the right hand and the right arm. He further alleges that the strength of said hand, arm and fingers is so impaired and diminished that he is disqualified from doing regular work and can only earn $10.00 per week, whereas he formerly earned $48.00 per week. He claims compensation for permanent partial disability under' Clause (c) of Subsection 1 of Section 8 of Act No. 216 of 1924, or sixty-five per cent of the difference between wages which he was earning at the time of the accident and the wages which he is now able to earn.

He alleges that defendant, Spence & Goldstein, Inc., was insured by the Standard Accident Insurance Company, and he asks judgment in solido against his employer, Spence & Goldstein, Inc., and against said insurance company.

Defendant Spence & Goldstein, Inc., in answer admitted that plaintiff was employed by it and that he was engaged in work as alleged, and admitted that on oi; about the date alleged plaintiff stuck a splinter in his hand, but denied that plaintiff was injured to the extent that he claimed. It sets up that it paid plaintiff compensation at $20.00 per week for a number of weeks (the number not being stated) and agreed to continue to pay such compensation for twenty weeks, but that plaintiff refused to accept such compensation.

It prays that the recovery of plaintiff be limited to twenty weeks together with the medical and hospital bills, not to exceed $250,00, and that plaintiff’s demand in excess thereof be rejected.

The defendant, Standard Accident Insurance Company, filed an answer setting up the identical defenses made by Spence & Goldstein, Inc.

There was judgment in the District Court for plaintiff granting him compensation at $20.00 per week during his disability, not to exceed 300 weeks, less seventeen weeks’ compensation already paid, from which judgment defendants have appealed.

OPINION

There is no proof in the record that plaintiff expended any amount for medicine and surgical attention, and therefore the court below allowed nothing.

The testimony abundantly establishes plaintiff’s injury as alleged, except with reference to the injury to the arm. There is no proof that plaintiff’s arm is partially paralyzed or that it is impaired to any extent whatever.

However, all of the testimony shows that while at work as alleged by plaintiff and admitted in answer by defendants, the plaintiff did receive an injury to the hand which has rendered him permanently partially disabled to do any work of a reasonable character.

The plaintiff while at work picked up a 2x4 scantling and accidentally stuck a splinter in the palm of his right hand near the base of the middle finger. This splinter remained in the hand for several hours and was removed by a physician. The testimony shows that at the time plaintiff went to the physician his hand was badly swollen and infected.

Doctor Adair made an examination of the hand a short time, before the trial and testified that he found evidence of periostitis of the phalanges of the middle finger and evidence of bone atrophy in all the fingers, especially marked in the phalanges of the middle finger; and he says that plaintiff’s hand is in a serious condition and heals very slowly. He says that plaintiff has arthritis, which means a rough joint and produces limited motion in the joints of the fingers.

As to the permanency of the condition, he says that he does not think there is any hope that the use of the hand will ever be restored and that he considers the injury permanent. He testified that plaintiff cannot pick up things, that he cannot gi’ip the handle of anything such as a plow handle or a carpenter’s tool; that the middle finger is perfectly stiff, and that the other fingers are partially so. He gave it as his opinion that the plaintiff cannot do carpenter’s work at all and says that the right arm is somewhat smaller than the other one due, as he thinks, to non-use. Hé says that if the middle finger of that hand were amputated the rest of the hand would improve somewhat but that it would never be entirely restored.

Plaintiff himself says that he has not been able to do any work since the accident. However, he admits, or rather alleges, in his petition that he is able now to earn $10.00 per week.

The defendant called two physicians, Dr. Hurd and Dr. Boyce.

Dr. Hurd testified that he examined plaintiff on March 18, 1925, and that he found him totally disabled to do manual labor at that time. He says that the middle finger is stiff and wholly useless and that the other fingers have limited motion. According to his testimony the middle finger interferes with the use of the hand and he advised plaintiff to have that finger amputated. However, he says thato with the best results hoped for by amputation plaintiff would never recover normal use of the hand, and that with the very best results he would probably be able to restore the hand to seventy-five per cent of its normal usefulness. However, he says that is only probable. He found atrophy and each of the other conditions of the hand as testified to by Dr. Adair, and says there is total disability at the present time.

Dr. Boyce says that the hand was infected at the time plaintiff came to him to have the splinter removed. He says that the middle finger is now stiff and that the others have only limited motion. He treated him for two months. His testimony is practically in accord with that of the other two physicians.

As stated already, the testimony abundantly shows that the plaintiff is disabled to do manual labor of any reasonable character, and especially the kind of labor which he is capacitated to perform. There is practically no dispute on this point.

The court below found that plaintiff is partially disabled to do work of a reasonable character and fixed compensation at $20.00 per week for the period of disability, not exceeding 300 weeks, under clause (c) of subsection 1 of section 8 of the statute, which is the maximum amount allowed by law, and we think that judgment is correct.

The defendants urge the point that even if the court should hold the plaintiff is permanently partially disabled, compensation cannot be fixed for the reason that it is not shown what plaintiff is able to earn since the accident and that plaintiff’s admission that he can earn $10.00 a week should not be used by the court as a basis and that the case should be remanded for evidence on this point.

It is true that the courts have held that where there is'no evidence as to the amount which the plaintiff is able to earn since the accident the case should be remanded for proof on that point; but in determining this point all the testimony in the case should be considered. The plaintiff is 32 years old and without education. He has never done anything except farm and work at the carpenter’s trade. He does not know how to do anything else. All the testimony in the case shows that his right hand is in such condition that he is unable to do either kind of work now. His middle finger is perfectly stiff, all of his other fingers are partially stiff, and he is unable to grip a plow handle, a hoe, a shovel or an axe, nor can he grip and hold a hammer or a saw or any other tool used by carpenters. He is therefore incapacitated to . farm or to do a carpenter’s work. Being uneducated, he will therefore have to find some kind of manual labor in order to be able to earn anything. Up to the time of the trial he had not found anything to do, but he admits or rather alleges in his petition that he can now earn $10.00 per week, and we, of course, must accept his evidence that he can earn at least that much. But he says he can earn no more than that and under all the testimony we do not think he can.

Defendants have not suggested any work he can get to do at which he can earn more than that.

Aside from the testimony of the plaintiff himself as to his condition, the three physicians who testified, one for the plaintiff and two for the defendants, have abundantly established the plaintiff’s case on the question of permanent partial disability, and the plaintiff, by alleging that he can now earn $10.00 a week and by testifying that he can earn no more than that, has made out his case as to his present earning capacity.

In the course of his examination plaintiff was asked:

“Now since that time you have not been able to earn more than half?”

And he answered:

“No.”

Defendants construe that to mean that plaintiff admitted that he can now earn one-half as much as he could formerly. Plaintiff, we are sure, did not mean to testify that he had been earning half as much since the accident as he did before, as the question and answer would imply; his testimony as to his ability to labor and to earn' must be taken as a whole. It shows throughout that he is not able to earn anything at all since the accident. He was earning, according to the testimony, $44.00 per week when injured. He is now able to earn $10.00 a week. He is therefore entitled to sixty-five per cent of the difference, which amounts “to more than $20.00 per week, which the statute fixes as the minimum, and under the act he is entitled to that much during disability, not exceeding 300 weeks.

Defendants next urge that inasmuch as the injury in this case is to ' plaintiff’s fingers he should not be allowed more than the statute fixes for the loss of the fingers and at most for the loss of a hand.

We have consistently held and we now adhere to our former ruling that where a member of the body, as for instance the hand, the arm or leg, is so injured as to cause disability to labor and earn wages, the compensation should be fixed according to Clause (a), (b) or (c) of Subsection 1 of Section 8 of the statute, fixing the compensation for disability to labor,' and not according to other sections of -the statute fixing the amount for the loss of certain members of the body.

For the reasons assigned it is therefore ordered, adjudged and decreed that the "judgment appealed from be affirmed at the cost of defendants.

ON APPLICATION FOR REHEARING

REYNOLDS, J.

Defendants insist that they are entitled to a rehearing in this case for the reason, as they contend, that our decision is in conflict -with the decisions of the Supreme Court in similar cases; but they do not support their contention by the citation of any authorities other than those quoted in their original brief.

We are convinced that our findings herein are correct as to the law; but defendants call our attention to the fact that they only allowed credit for $17.00 per week for twenty weeks when under the evidence they should have been given credit for $20.00 per week for twenty weeks.

The only evidence introduced on that point is the testimony of plaintiff, who says, on page 2:

“Q. Now do you know what compensation, if any, has the defendants, or either of them, paid you?
“A. Seventeen dollars ($17.00) per week.
“Q. How much per week?
“A. Twenty dollars ($20.00) per week, for twenty weeks.
“Q. For twenty weeks?
“A. Yes, sir.”

Under this testimony defendants are entitled to credit for $20.00 per week for twenty weeks; but this is an error that we can correct without granting a rehearing.

It is therefore ordered, adjudged and decreed that our former decree herein be modified by allowing defendants credit for payment of $20.00 per week for twenty weeks instead of $20.00 per week for seventeen weeks, and as thus amended the judgment of the lower court is affirmed. Defendants to pay the costs of the lower court; plaintiff to pay the costs of this court. And having corrected our former judgment, the rehearing asked for is refused.


text:
    No. 2478
    Second Circuit
    P. G. KING v. F. C. McCLANAHAN, ET AL.
    (November 4, 1925, Opinion and Decree.)
    (December 17, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 159, 159 (a).
    Under the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 43 of 1922, although the ability of the injured employee to work after the accident is made the measure of compensation, still the basis of the right of recovery is not the loss of earning capacity but total or partial disability to do work of any reasonable character.
    (Note: Section 8, Paragraph 1 (e) is the only exception to this rule. Editor’s note.)
    2. Louisiana Digest—Master and Servant —Par. 159, 159 (a).
    Section 8 of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 43 of 1922, does not make the wages the workman actually earns after the injury the test of his capacity, but makes what he is able to earn under free and normal conditions the test.
    (Note: Section 8, Paragraph 1 (e) is the only exception to this rule. Editor’s note.)
    3. Louisiana Digest—Master and Servant —Par. 154, 156, 160 (a).
    The fact that the injured employee has been convicted of a crime and sent to the penitentiary will not affect his right to recover his compensation under the Workmen’s Compensation Act No. 20 of 1914.
    4. Louisiana Digest—Master and Servant —Par. 154, 159, 159 (a).
    In the Workmen’s Compensation Act No. 20 of 1914 the court has not the right to prophesy and fix a time in advance when compensation shall be reduced from the basis of total to that of partial disability.
    5. Louisiana Digest—Master and Servant —Par. 159, 159 (a), 160 (e).
    Where the injured employee, suing under the Workmen’s Compensation Act No. 20 of 1914 is totally disabled but evidently will improve, tbe judgment of tbe court should give him compensation during disability not exceeding four hundred weeks. If the injured employee improves to partial disability the defendants have the right of review granted by the statute.
    6. Louisiana Digest—Master and Servant —Par. 160 (k).
    Under Section 21, Paragraph 2 of the Workmen’s Compensation Act No. 20 of 1914 a contract between an attorney and an injured employee in which the attorney’s fees are to be one-half of the amount recovered is excessive, and is reduced to one-third of the amount recovered.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit brought by an injured employee for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendants appealed. Plaintiff moved for an increase of the judgment.
    Judgment amended and affirmed.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellee.
    E. W. and P. N. Browne, of Shreveport, attorneys for defendants, appellants.
   CARVER, J.

Alleging total disability, on account of injuries received on July 5, 1924, in an accident arising out of and in the course of his employment as a carpenter by the defendant McClanahan, plaintiff sues McClanahan and his insurer the Maryland Casualty Company, in solido, for $18.00 per week for 400 weeks as compensation under the Workmen’s Compensation Law, Act No. 20 of 1914 as amended by Act 43 of 1922.

Plaintiff’s foot and ankle were hurt when he fell on a concrete floor from a scaffold, a heavy plank and two men falling also and landing on his ankle.

The district judge awarded plaintiff $18.00 per week for 96 weeks and $7.80 a week for the further period of his disability, not to exceed 300 weeks.

Defendants appeal, and plaintiff moves in this court to amend the judgment by awarding $18.00 per week during disability, not to exceed 400 weeks.

I.

Defendants urge that no compensation at all should be awarded after October 5, 1924, because on that day plaintiff was sentenced to the state penitentiary for a period of ten years. Their counsel say they have searched the reported decisions of both Europe and America and cannot find a case in point. Their argument is that the compensation law is mainly an economic and not a philanthropic or insurance statute; that the basis of recovery where that can be ascertained, is reduction of earning capacity; that plaintiff’s voluntary act in commiting a crime has created a situation which deprives him of earning capacity or at least prevents ascertainment of the reduction thereof and that therefore he is without right of. recovery.

We do not think this reasoning sound. It is true that former earning capacity in case of total disability to work and reduction of earning capacity in case of partial disability to work are made the measures of compensation, but the basis of the right of recovery is not loss of earning capacity but total or partial disability to do work of any reasonable character. If the injury does not produce disability to work, total or partial, there can be no recovery. If it does produce such disability, then the injured workman is entitled to recover.

We think plaintiff’s ability to work can be as well tested in the penitentiary as out of it. There is need for carpenters’ services there and if the authorities see that plaintiff is able to work they will no doubt take such steps to test his ability as would not be possible outside. In case he regains full ability, his right to compensation will cease. In case he regains partial ability it will be as easy to ascertain what then his earning capacity will be as if he were out of the penitentiary. The act does not make the wages the workman actually earns after the injury the test of his capacity but makes what he is able to earn the test. By this we understand, of course, what he is able to earn under free and normal conditions and without the intervention of other causes that may further reduce his earning capacity. If this capacity is further reduced by other causes, he cannot look to the defendants for that part of the reduction due to these other causes.

II.

The evidence satisfied the district judge that the injury produced total disability to do work of any reasonable character and that this condition of total disability still existed at the time of the trial on May 12, 1925, nearly ten months after the accident.

Under the evidence we cannot say he manifestly erred.

Doctor Pirkle expressed the opinion that plaintiff with proper treatment would have a 75% recovery in a year.

Evidently adopting this view, the district judge allowed compensation for total disability for 96 weeks fixed (evidently 44 up to the time of the trial and 52 thereafter) and compensation for partial disability during such disability, not exceeding 300 weeks.

We think, though, that where as in this case the total disability has lasted so long and where there is no reason to expect it will end in a year, the court should not indulge in prophesy and fix a time in advance when compensation shall be reduced from the basis of total to that of partial disability.

The matter, in our opinion, should be left to await the event. If plaintiff does recover partial ability, as Doctor Pirkle expects, the defendants may avail themselves of the right of review granted by the statute.

See: Chandler vs. Oil Fields Gas Co., No. 2356, Court of Appeal, second circuit, (not yet reported);

O’Donnell vs. Fortuna Oil Co., 3 La. App. 462.

For these reasons it is decreed that the judgment of the lower court be set aside and instead'thereof it is decreed that plaintiff have judgment against F. C. McClanahan and Maryland Casualty Company, in solido, for compensation at the rate of $18.00 per week during total disability, not exceeding 400 weeks, the first payment due July 12, 1924, with 5% per annum interest on each payment from the time of the maturity thereof, subject to a credit of $234.00 paid by the defendant Maryland Casualty Company.

Annexed to the plaintiff’s petition in the suit is a contract with H. P. Long, one of his attorneys, agreeing that Long shall receive one-half of all sums that may be recovered, which contract the judgment of the district court approves. It seems to us that 50% attorney’s fees in such a case as this is excessive; and while the plaintiff has not appealed from the judgment approving the contract and does not in this court ask for its modification, we think the statute places upon us the duty of disapproving contracts which, in our opinion, are excessive. We think 33 1-3% reasonable compensation. It is therefore decreed that this judgment be subject to the contract between plaintiff and his attorney Long, except that Long’s compensation thereunder instead of being fifty per cent, is fixed at thirty-three and one-third per cent.

It is further ordered that defendants pay the costs of. both courts.


text:
    No. 2116
    Second Circuit
    T. Q. GREER v. J. F. HAMILTON
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Automobiles—Par. 4 (d).
    One who drives an automobile at an excessive rate of speed through a town is negligent.
    2. Louisiana Digest—Automobiles—Par. 4 (c), 4 (d).
    One who drives an automobile over to the left side of the road where he struck a pedestrian is negligent.
    (Civil Code, Article 2315. Editor’s note.)
    3. Louisiana Digest—Damages—Par. 104.
    Four hundred dollars is sufficient quantum of damages for a dislocated wrist and bruises which disabled the injured person for about eight weeks.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Caldwell, Hon. F. E. Jones, Judge.
    This is a suit for damages arising out of a collision between an automobile and pedestrian.
    There was judgment for plaintiff, and defendant appealed.
    Judgment affirmed.
    Thornhill & Thornhill, of Columbia, attorneys for plaintiff, appellee.
    G. T. McSween, Jr., of Shreveport and Gus L. Alford, of Columbia, attorneys for defendant, appellant.
   ODOM, J.

On March 24, 1923, the plaintiff was struck and knocked down by a Ford automobile owned and operated by the defendant as a service car. He alleges that he was badly injured, and brought suit against the defendant for the sum of $2867.50 for injuries, suffering and expenses incurred on account of said accident.

The defendant, Hamilton, in answer, sets up that the accident was caused hy no fault or negligence of his driver but pleads contributory negligence on the part of the plaintiff and alleges that the accident was caused solely on account of the plaintiff’s neglecting to take the ordinary precaution.'

The trial of the case in the district court resulted in a judgment in favor of the plaintiff and against the defendant for the sum of $400.00 and all costs of the suit. From this’judgment the defendant appeals. The plaintiff answered the appeal and aske'd that the amount of the judgment be increased to the total amount which he asked in his petition.

OPINION.

The accident occurred in the public highway at Grayson, Louisiana, in the Parish of Caldwell, between 5 and 6 o’clock on March 24, 1923.

The plaintiff operates the electric light plant at Grayson at night and on the occasion of the accident he started across the public road with an oil can in his hand for the purpose of procuring some lubricating oil to be used at the power plant. It seems there is no public crossing at the point where the plaintiff attempted to cross the public road. The accident happened about 20 or 25 feet south of a filling station operated by a man by the name of Gulpepper. The filling station is on the east side of the public road. Just south of the filling station, a distance of something more than 125 feet, there is another public road which crosses the one on which the accident happened. It seems that the power plant is on the east side of the main public road, running north and south and that the plaintiff had to cross this public road in order to get the oil from the filling station on the west side of the road. As stated, he attempted to cross the road some 20 or 25 feet south of the filling station. Just in front of the filling station there was a park which probably extended out a short distance into the public road, but just how far the testimony does not make clear.

The plaintiff went into the road from the east side and as he got within about three feet, according to his testimony, of the center of the road, he saw the automobile coming from the north when it was about 10 or 12 feet from him. When he saw the automobile he stepped back about three feet and, according to his testimony, the driver of the automobile, instead of keeping to the right hand side of the road going south, swerved his ear to the left, over towards the east side of the road and ran squarely against him.

Two of the witnesses for plaintiff, both of whom saw the entire transaction, say that the driver of the car left the west or right hand side of the road and came over to the east side of the road and struck the plaintiff somewhere between the center of the road and the eastern edge thereof. The exact spot at which the plaintiff was struck is hard to determine. One of the witnesses says that the plaintiff was not more than five feet from the eastern edge of the road at the time he was struck. Other witnesses indicate that he was nearer the center of the road. But all of plaintiff’s witnesses who saw the accident, about three in number, state that the driver of the car swerved completely over to the eastern or left hand side of the road and hit the plaintiff on that side.

A Mr. Johnson who was in the automobile with the driver at the time, testifies that the plaintiff was struck while about the. middle of the road, and he thinks that the driver did everything possible to avert the accident. However, the decided preponderance of the testimony is to the effect that the driver of the car instead of keeping on the right hand or western side of the. road, as he should have done, swerved his car over towards the eastern side of the road and struck plaintiff over on that side.

As we gather from the testimony, it is probable that the driver of the car turned slightly to the right or towards the west side of the road in order to go around a truck which was parked in front of the filling station; but there is nothing to show why he left the right hand side of the road after passing the truck and swerved over to the left hand side.

There is considerable testimony as to the speed at which the driver was going at the time of the accident. The testimony of the plaintiff and that of three other witnesses sworn on his behalf states that the car was running about 20 miles an hour, one witness stating that it was probably going between 18 and 20 miles an hour. Mr. Johnson, who was in the automobile with the driver at the time of the accident gives it as his opinion that the car was not travelling at more than twelve miles an hour.

We are perfectly satisfied, however, from the testimony that the plaintiff was running at not less than 18 miles and probably 20 miles an hour at the time of the accident. One witness who testified that the car was going about that rate was an experienced automobile driver, and each of the others, except Mr. Johnson, had had considerable experience in handling Ford cars.

Another reason why we conclude that the driver was going at not less than 18 or 20 miles an hour is the fact that the rear wheels of the car skidded about 10 or 12 feet before striking the plaintiff and skidded several feet after striking him. One of the witnesses for plaintiff testified that he examined the road, which is gravelled at that point, and that it showed that the wheels of the car skidded on the road from about the time the driver swerved it to the left or towards the east side of the road for a distance of some 10 or 12 feet and that after striking the defendant the car turned to the right and that it skidded some several feet thereafter. Other witnesses testified that there was evidence in the road of quite a considerable skidding. One of the witnesses testified that a Ford car driven on a gravel road running at the rate of 12 miles an hour could be stopped within 10 or 12 feet. This testimony is not disputed and we think it reasonable.

The testimony further shows that the driver of the car evidently saw the plaintiff when he was some 12 or 15 feet away from him. It will therefore appear that if he was running at a rate of not more than 12 miles an hour he could at least have stopped the car by the time he reached plaintiff. But, as stated, the testimony is that not only was the driver unable to stop the car by the time he reached plaintiff but he continued to use his brake, causing the rear wheels to skid for several feet after he struck him.

It is defendant’s contention that when the driver of the car saw the plaintiff near the center of the road he attempted to miss him by driving on the east side of him and that if the plaintiff had stepped forward instead of backward the accident would have been averted.

However, other witnesses say that even if plaintiff had stepped forward the car would necessarily have struck him.

Our conclusion of the case is, on a consideration of all the testimony, that the driver of the automobile was negligent, first, because he was driving at an excessive rate of speed through the town of Grayson, and, second, because he left the right hand side of the road, where he should have remained, and drove over to the east side where the plaintiff was struck, and that if he had been driving at a reasonable rate of speed or if he had kept on the right hand side of the road, as he should have done, he would not have struck plaintiff. We think he was grossly negligent in both respects and that his negligence was the proximate cause of the injury.

Defendant pleads that plaintiff had the last clear chance to avoid the accident. We do not think so. We do not think that there is any room for the application of the doctrine of the last clear chance in this case.

We think the testimony as a whole shows conclusively that the defendant is liable.

The driver' of the automobile, a colored boy, who was shown to be a licensed chauffeur under the laws of the State of Louisiana, was not called as a witness, for what reason, we are not informed.

The judge of ’ the district court after seeing and hearing all of the witnesses concluded that the plaintiff was entitled to judgment in the sum of $400.00, and we think his judgment is correct.

The plaintiff has moved to amend the judgment so as to allow him the full amount of damages which he claimed in his petition.

It seems that the plaintiff had a wrist dislocated, which disabled him for about eight weeks. In addition thereto he was considerably bruised up and unable to do any work for some little time. He expended about $36.00 for doctor’s bills and for the making of an x-ray of his hand, all of which the lower court took into consideration. in fixing the amount of the award.

We cannot say that the district judge manifestly erred in fixing this amount.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, the defendant to pay all costs in both courts.


text:
    No. 2283
    Second Circuit
    NAT SMILOW v. WALTER S. CAMPBELL, AND BANK OF OAK GROVE
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Obligations — Par.' 126, 153, 154.
    Putting in default is a necessary prerequisite under Articles 1912 and 1913 of the Civil Code to the recovery of damages or to the rescission of a contract.
    2. Louisiana Digest—Obligations — Par. 155.
    Article 1911 of the Civil Code provides how the debtor may be put in default and unless this act is followed one cannot recover damages or have the contract rescinded by Articles 1912 and 1913 of the Civil Code.
    3. Louisiana Digest—Obligations — Par. 126, 154, 178.
    A contract which does not provide that the party failing to comply with it, by the mere act of his failure is in default (nor is it one of those in which the breach alone is by law declared equivalent to a default), will not allow a party to this contract to recover if he has not put the other party in default under Article 1911 of the Civil Code.
    4. Louisiana Digest—Costs—Par. 10.
    Where one, by a contract has placed his money where it cannot be recovered except by a law suit and the effect . of the suit is to also enable the other contracting party to recover his money which was similarly placed, the costs should be equally divided between the plaintiff and defendant for each recovers his own money.
    Appeal from Seventh Judicial District Court of Louisiana, Parish of West Carroll, Hon. John R. McIntosh, Judge.
    This is a suit by which plaintiff agreed to sell defendant a stock of drugs and fixtures and each made deposits of $500.00 to bind the contract. Because neither party had been put in default there was judgment giving each party his $500.00 deposited as earnest money and stipulated damages.
    Plaintiff appealed.
    Judgment affirmed.
    George Wesley Smith, of Rayville, attorney for plaintiff, appellant.
    D. J. Anders, of Rayville, attorney for defendants, appellees. /
   CARVER, J.

By a written agreement, signed August 23, 1924, plaintiff agreed to sell and defendant, Campbell, to buy a stock of drugs and fixtures, the sale to be completed on September 10, 1924. Each party deposited $500.00 in the Bank of Oak Grove, the contract providing that this was

“ * * * as earnest money and as stipulated damages to be paid to the one who is ready and willing to close the sale and transfer herein agreed to be made, provided the other is not ready and willing to close and perfect said sale.”

Plaintiff, alleging that defendant had granted an extension of • time for carrying out the contract and had thereafter violated it by formally refusing to comply with it notwithstanding frequent demand, and alleging also that he had been formally put in default, brings this suit against defendant and the Bank claiming the thousand dollars on deposit.

Defendant denies that he granted an extension or violated the contract; asserts that, on the contrary, plaintiff was not ready to carry it out on September 10; avers his own readiness to carry it out on that day; and claims that by plaintiff’s failure to carry it out on that day he forfeited his rights under the contract and that defendant is therefore entitled to the thousand dollars and reconvenes for its recovery.

Plaintiff appeals from the decision of the district judge, who rejected the demands of both parties, holding that each was entitled to withdraw his own deposit, and defendant in this court moves to amend the judgment by giving him the whole deposit.

The district judge does not state the reasons for his decision, but we think it correct for the reason that neither party ever put the other in default and this, according to Articles 1912 and 1913 of the Civil Code is a prerequisite to the recovery of damages or to the rescission of a contract.

These articles read as follows

“The effects of being put in default are not only that, in contracts to give, the thing, which is the object of the stipulation, is at the risk of the person in default; but in the cases hereinafter provided for it is a prerequisite to the recovery of damages and of profits and fruits, or to the rescission of the contract.”
“In commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the party who wishes to put the other in default, must, at the time and place expressed in, or implied by the agreement, offer or perform, as the contract requires, that which on his part was to be performed, otherwise the opposite party will not be legally put in default.”

Plaintiff alleges that he did put defendant in default, without saying how; but, as a witness, after stating that an extension had been granted by defendant with whom he had frequent talks after September 10, with respect to carrying out the contract, testifies, page 4 of the testimony:

“I located Mr. C. in his office, and Mr. Johnson went along with me at the time. I asked Mr. C. again what he intended to do. Mr. C. told me he was figuring with some parties, and that they were to show up that evening some time, and he left me no results. I told Mr. C.. that time that I would give him until nine o’clock that evening to either take the stock of merchandise or I would consider the deal cancelled and I would open the store on the following morning.”

Plaintiff’s counsel argues that this was a putting in default and that the bringing of this suit was also. We cannot agree with this view. If this was an offer to perform, it was a verbal one made in the presence of only one witness.

Article 1911 of the Civil Code provides:

“The debtor may be put in default in 'three ways: By the term of the contract, by the act of the creditor, or by the operation of law.
“By the terms of the contract, when it specially provides that the party, failing to comply, shall be deemed to be in default by the mere act of his failure.
“By the act of the party, when at or after the time stitulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a. protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.
“By the operation of law. This takes place where the breach of the contract alone is by law declared to be equivalent to a default. The law having declared that the neglect to return a thing loaned for use, at a stipulated time, or the application of it to another use than the one for which it was lent, puts it at the risk of the borrower; this, without any act of the lender, puts the borrower in default, and forms an example of this part of the rule.”

The suit spoken of in the article is not a suit for damages for a breach of the contract but a suit demanding its performance.

The contract does not provide that the party failing to comply with it shall be in default by the mere act of his failure; nor is it one of those in which the breach alone is by law declared equivalent to a default.

The defendant does not even allege, much less prove, a putting in default on his part, but relies on the fact that plaintiff was not, on September 10, 1924, ready to perform as putting an end to the contract and entitling him to the deposit. But, as stated above, neither the contract nor the law provides that mere failure to perform constitutes such a default as is necessary for the recovery of damages.

The district judge condemned plaintiff to pay half the costs and the defendant half. Under the peculiar situation of this case, We think this proper. Both were claiming the whole thousand dollars and neither could get his five hundred dollars without a suit. Plaintiff recovered judgment for five hundred dollars but so did defendant. The bank, of course, being a mere stakeholder was properly relieved from the payment of any costs.

For these reasons, the judgment of the lower court is affirmed; plaintiff to pay the costs of the appeal.