text:
    No. 4119
    Second Circuit
    HOLCOMB v. PERRY
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    Goff & Goff, of Arcadia, attorneys for plaintiff, appellant.
    J. Rush Wimberly, of Arcadia, attorney for defendant, appellee.
   McGREGOR, J.

This is a suit for damages growing out of a rear-end collision between plaintiff’s automobile and a truck and trailer partially loaded with logs. On the night of January 4, 1930, about an hour after sunset the plaintiff was driving a Ford touring car on the Minden-Ringgold highway; traveling south on his Way to Ringgold. Traveling just ahead of him, a distance of about fifty yards, one Archie Jones was driving a tudor Ford sedan. When about two miles north of the town of Ringgold, plaintiff and Archie Jones came suddenly upon a truck and trailer partially loaded with long slender poles with tapering ends, headed south and parked practical!y in the middle of the road, without any light or other warning sign displayed either in front or at the rear of the truck or trailer or at the ends of the protruding poles. The outfit was owned by the defendant, Tom Perry, and was being used to haul long slender poles or piling about thirty or thirty-five feet in length. After these poles were loaded upon the truck and trailer they extended from six to ten feet over and beyond the rear end of the trailer. When plaintiff and Archie Jones came thus suddenly and unexpectedly upon the partially loaded truck and trailer it was in charge of Elzey Peavy, an employee of the defendant. In addition to Peavy, there was a negro man named M. B. Clay and another white man named Holman, employed by the defendant, and the three men composed the crew in charge of hauling the poles.

The evidence does not make it clear, but we gather from it that Peavy and his two helpers had loaded the truck and trailer with poles out in the woods some distance from the highway and that on account of a mud hole they had to unload poles in order to get the truck and trailer over the place; that a few of the poles were then loaded and the truck and trailer, thus partially loaded, were driven upon the highway and parked with the idea of dragging the rest of the load by team to the side of the road opposite where the truck and trailer were parked for the purpose of completing the load. The method of loading was as follows: Two or more skid poles were placed each with one end on the truck or trailer and the other on the ground. The poles were dragged to a position parallel and even with the truck and trailer; cross-haul chains were then attached to the poles one at a time and, by means of a team of horses or mules on the opposite side of the road, were pulled upon the truck and put in place, so that, necessarily, while a pole was being loaded, traffic was completely blocked in each direction by the skid poles on the right or west side and by the team and chains on the left or east side.

Plaintiff and Archie Jones were each on his way to Ringgold to attend a show given by Paul English Players at the school house in Ringgold that night. They were friends and neighbors and were using their separate cars for the reason that each one had an engagement with a young lady for the entertainment. Archie Jones’ car was not working well and, to use his own Words, he asked the plaintiff to trail behind him on the way into Ringgold so that if the car “played out” he could “go on to town” with the plaintiff. With this arrangement and understanding they traveled along at a rate of twenty-five or thirty miles per hour and at a distance of about forty or forty-five yards apart. An effort is made by the defense to show that the rate of speed was greater and the distance ajpart less, but we think the evidence satisfactorily establishes the above figures as correct.

Archie Jones, of course, reached the truck first. He turned to the right and tried to go around it that way. He struck the skid poles, knocked them quite a distance, ran off the embankment to the level of the surrounding field and finally righted himself and gqt his car back upon the highway in front of the -truck without much injury to himself or his car. If plaintiff had followed the same course he might have come through equally as well. He was following the Jones car, but when he got within twenty-five or thirty feet of the ends of the poles he observed them, and his best judgment dictated that, in order to pass, he should turn to the left as is the custom When overtaking a vehicle going in the same direction. In attempting to go around the left plaintiff was unsuccessful; the ends of the poles caught the body of his car and practically demolished it, though the chassis escaped without much injury. Plaintiff, of course, was very badly shaken up, but he was fortunate in not being instantly killed. He succeeded in stopping the car as it reached about the front of the truck. Plaintiff was able to drive his car with the wrecked body into Ringgold, and after putting it in a garage for repair, he went on to the show and met his young lady friend who, on account of the delay, had gone without him. After the show he returned to his father’s home in Archie Jones’ car.

Plaintiff states that he suffered some pain on the night of the accident and told his father and mother about it. No physician was called at once, as he hoped the trouble would adjust itself and disappear. Prior to the accident plaintiff had lived with his father on the farm and had done general farm work. During the winter season he assisted his father in making, loading, hauling and unloading railroad cross-ties. Just prior to the time of the accident this is the kind of w'ork he was engaged in. He was a strong, healthy young man about 22 years of age. He loaded and unloaded the cross-ties alone and lifted them without assistance. Ever after the accident he had to have assistance in loading and unloading ties. He could not handle them as he had foi’merly done. Finally his condition became so serious he consulted Dr. J. N. Blume, a physician living at Arcadia. The doctor diagnosed his trouble as inguinal hernia, and advised an immediate operation. In accordance with this advice and accompanied by Dr. Blume, the plaintiff went to the Tri-State Sanitarium in Shreveport, and on March 3, 1930, was successfully operated on by Dr. J. C. Willis. Eleven days after the operation he returned to his home and on April 11th, this suit was filed.

In his petition plaintiff alleges that defendant’s partially loaded truck and trailer were parked in or near the center of the highway in the nighttime, without any light or other warning sign on any portion of the truck, trailer or poles, and that it was this negligence that was the proximate cause of the accident in which he received the injury. In his suit plaintiff claims the sum of $2,548, itemized as follows:

Amount paid Dr. J. N. Blume................$ 20
Amount paid Drs. Willis-Knighton Clinic for an operation________________________ 75
Amount paid Tri-State Sanitarium for services and room.................................. 58
Amount paid for expense in going to hospital for father and himself-------- 20
Amount paid for expenses of mother for 11 days while attending and nursing him at hospital........................ 25
For pain and suffering............................ 1000
For 4 months’ loss of time from work 200
For permanent injury to ability to do manual labor ___________________________________ 1000
For expenses repairing automobile— 150
Total .........................................................$2548

In his answer defendant denied that his employees were guilty of any negligence, and in the alternative pleaded contributory negligence on the ¡part of the plaintiff, and as a further defense denied that plaintiff’s physical injury was caused by the accident, but that he had been suffering with the same trouble for several years prior thereto.

Trial was had on January 19, 1931, and on March 27, 1931, there was judgment in favor of the defendant rejecting the demands of plaintiff. Prom that judgment the plaintiff has appealed.

OPINION

In considering and determining this case there are three questions that arise, viz.:

(1) Was the defendant, or his agents and employees, guilty of negligence?

(2) If so, was the plaintiff guilty of contributory negligence?

(3) Was the plaintiff’s hernia caused by the accident, and if not, was it so aggravated and accentuated by the accident as to make the defendant liable in case it should be held that defendant’s negligence was the proximate cause of the accident?

The Minden-Ringgold highway is a graveled state road about twenty-eight feet wide and runs north and south. Eight witnesses, including the plaintiff, testified that on the occasion of the collision involved in this case the defendant’s truck and trailer were parked practically in the center of this highway, about an hour after dark, with no lights of any kind anywhere about the truck, the trailer or the poles and that the poles extended over and beyond the rear end of the trailer some six to fifteen feet. There was no cab on the truck so that there was no vertical surface anywhere about it on which a headlight of an approaching automobile could shine and be reflected. It needs no discussion or argument to hold that those in charge of this truck and trailer were grossly negligent in placing such an obstruction in the middle of a public highway. As was said in the case of Futch v. Addison et al., 12 La. App. 535, 126 So. 590, 591:

“Leaving on the highway unguarded and without lights such a dangerous menace to everybody using the road after dark, was in violation of Act No. 296 of 1928, Section 39. It was also such an act of inexcusable negligence that defendant’s liability on account of having left it there is too plain for argument.”

The defendant’s employees, for whose negligence he is liable, were even more negligent than it would first appear. Not only were the truck and trailer parked in the center of the road, but when they were in the act of loading the poles, which were dragged to the side of the road for that purpose the road was completely blocked. On the west side were placed skid poles with one end on the truck or trailer and the other on the edge of the road. On the east side was the team of mules and the driver operating the cross-haul chain with which the loading was done. Two witnesses testified that they passed along there just before dark in their car and the team and chain had to be disconnected so that they could pass by. The only conclusion that can be reached is that the defendant is chargeable with the grossest negligence.

The next question to be determined is as to whether the plaintiff was guilty of negligence that resulted in or contributed to, the accident out of which his injury is alleged to have arisen. Some time after dark the plaintiff left his father’s home, driving his Ford automobile, intending to go to. a show in Ringgold, a few miles south. On his way he stopped by the home of a friend, Archie Jones, who was planning to go to the same show in his Ford automobile. Each of the young men got in his own car and started for Ringgold. Jones’ car had engine trouble and he was fearful that it might not make the trip, so it was agreed that he should drive ahead and that the plaintiff should trail him in order that he might assist him if his car should go dead. It is satisfactorily (proved by the evidence that the two young men were traveling at a rate of speed not to exceed twenty-five or thirty miles per hour, and that they maintained an average distance of forty or fifty yards apart. Both cars had headlights burning and were being driven with due caution. There was nothing about the truck and trailer parked in the middle of the highway with a few slend'er poles on them to attract the attention of the most careful driver at night. A headlight of an automobile would not disclose these poles. At best, they would likely appear and show up as lines or streaks on pavement, and on a gravel road they either would be invisible or would appear as ridges or grooves in the gravel until one should come very close to them. Archie Jones, who was ahead in his car, was within a few feet of them before he observed them. He suddenly realized that some obstruction was in the middle of the road. He must have been traveling well to the right of the road, for in the fraction of a second in which he had to act he undertook to pass to the right of the truck and poles instead of to the left as custom, and the law would dictate. By using his first and best judgment he turned to the right. In doing so he ran into the skid (poles and knocked them twenty-five or thirty feet, while his car, which he kept under control, ran off the sloping edge of the road and then came back upon the highway and stopped in front of the truck. In the meantime plaintiff, following close upon Jones’ car, discovered the poles on the truck just a few feet, twenty or thirty, ahead of him, too late to apply his brakes and come to a complete stop. Instead of turning to the right as Archie Jones had done, he .turned as quickly as possible and as far as safety would permit to the left in an effort to (pass the truck and its load. In this he was hot successful. The ends of the poles caught his car on the right side and completely demolished the body without injuring the chassis to any extent. He stayed in the car and brought it to a standstill by the time it reached a point about opposite the front of the truck. In the confusion he evidently was jarred and thrown about considerably in his car as he held on and to the seat and steering wheel. We find nothing whatever negligent in any of his acts. He was confronted with a sudden emergency and exercised the best judgment possible. He was traveling at a reasonable rate of speed, his headlights were in good condition and burning, he was keeping a safe distance behind Archie Jones, he discovered the poles on the truck as soon as could be expected and did all he could to save himself and to avert the accident.

Defendant, of course, invokes and relies upon the doctrine that it is the duty of the driver of an automobile at night to maintain a speed sufficiently slow and to have such control of his car that he can stop within the distance in which he can plainly see an obstruction or danger ahead. In the case of Jacobs v. Jacobs, 141 La. 272, 74 So. 992, 996, L. R. A. 1917F, 253, Chief Justice O’Niell held that this rule is subject to certain modifications, and said:

“It cannot apply to a case where an object or obstruction which the driver of an automobile has no reason to expect appears suddenly immediately in front of his automobile.”

In the present case plaintiff had no reason to expect an obstacle in the middle of the road unguarded, such as suddenly appeared immediately in front of him. Furthermore, these long slender poles, on account of their nature and general appearance, could not be easily discerned in the dark at night, nq more so than could a rope or wire suspended above the road.

In the case of Futch v. Addison, 12 La. App. 535, 126 So. 590, referred to above, the defendant left a truck and trailer loaded with logs parked on the public highway at night Without lights, and it was held that plaintiff was guilty of no negligence in running into it. In the case of Hanno v. Motor Freight Lines, 17 La. App. 62, 134 So. 317, 319, plaintiff was traveling east on the Baton Rouge-Hammond highway; there was another automobile approaching him from the opposite direction, whose driver failed to dim his lights; he pulled over to the right to give the oncoming car the proper amount of road for them to meet, and in doing so he ran into a parked truck of the defendant which had no signal or warning whatsoever of its presence on the road. The defendant was found negligent, and, in reaching its conclusion that the plaintiff was not negligent, the court said:

“Counsel for defendant relies principally on that rule which he takes from certain cases, a good many of them being from other states, to the .effect that it 'is the duty of the driver of an automobile at night to keep his car under suqh control so that, in case he meets another car and is blinded by its lights, he can bring his car to a complete stop within the distance on the road illuminated by his own lights. We find that to be a correct statement of what the rule is in the cases cited, but we are of the opinion that its application depends entirely on the facts and circumstances arising in each case. In the latest case referred to by counsel, Woodley & Collins v. Schusters’ Wholesale Produce Co., Inc., 170 La. 527, 128 So. 469, 470, the Supreme Court of this state holds that it is not an inflexible rule. We quote the following: ‘Whether it should be deemed negligence for the driver of an automobile to fail to slow down, in a case like this, depends so much upon the circumstances of the particular case that it is not easy nor safe to lay down a hard and fast rule on the subject.’ * * *
“We are of the opinion that a person who is blinded by the lights of a. car coming from an opposite direction is called on to exercise great caution and have his car under such control as to safely meet any ordinary emergency which may present itself on the road, because of the darkness, but we are not prepared to hold that he is expected to be able to stop his car, almost on the spur of the moment, when, as in this case, he finds himself confronted suddenly with a situation of extreme peril on the highway such as had been created by this defendant. The situation of emergency was not an ordinary one, as persons are not permitted to leave unguarded, and without lights, trucks or vehicles parked on the public highway after dark. There is another rule of law, equally as well reccognized as the one contended for by counsel for defendant in this case, to the effect that the driver of an automobile, confronted with imminent danger to his life or bodily harm, will not be held liable for the results of a collision, even though he did not exercise the best judgment, considering the situation in which he had been placed by the inexcusable negligence of the defendant. This last rule was applied in Stafford v. Nelson Bros., 15 La. App. 51, 130 So. 234, a case where the facts were very much similar to those presented here.
“Looking for what was the proximate cause of the accident, as we must in order to fix liability, we certainly believe that it was the absence of lights or of any warning whatever of the presence of this large truck at night on the public highway. The state statute, No. 296 of 1928, sec. 57, required that the one in charge of that truck display on it ‘one or more lamps projecting a white light visible under normal atmospheric conditions from a distance of 500 feet to the front,’ and also a red light ‘visible under like conditions from a distance of 500 feet to the rear.’ This is not a rigid regulation, and it is a very precautionary one. Had it been complied with in this case, there is little reason to believe that this accident would have occurred.”

So in the present case we hold that the proximate cause of the accident was the parking of the truck of the defendant in the nighttime in such a manner as to practically block the entire highway, and the absence of lights or any warning whatever on the truck. This action on the part of defendant’s employees was a positive menace to the safety of the public. It was not such an obstruction that plaintiff should be required to see it in time to avoid it so as to include him in the rule as it is usually expressed.

In holding the driver of an automobile responsible for not seeing a truck or other object with which he has a collision, the character, appearance and visibility of the object must always be taken into consideration. An automobile parked along the side of a highway presents such a surface for the reflection of light from the headlights of the automobile approaching that the driver is usually bound to see it at such a distance that he can stop his car before reaching it. But in the case of trucks and trailers with no area at all at the rear to reflect the light of the headlights when the truck is loaded with long slender poles or pipe, it is different. It cannot be expected that the driver of an automobile will see it in time to avoid a collision, and for that reason he will not be held negligent. This general principle is applied in the well considered case of Holloway v. Pure Oil Co., 17 La. App. 584, 135 So. 381.

The defendant relies on the case of Sexton v. Stiles, 15 La. App. 148, 130 So. 821, decided by this court. In that case it was found that the plaintiff was negligent in that he continued to drive his automobile after he was thoroughly incapacitated and in no condition to drive or see what he should see.

Plaintiff’s demand for damages may be divided into two parts, viz.: Property damage and personal injury. The defendant takes the position that, even though he may have been negligent and the plaintiff may have been guilty of no contributory negligence, still he is not liable for the personal injury claimed by the plaintiff for the reason that the trouble originated and existed long prior to the accident and Was, therefore, not caused by the accident. It is proved conclusively that for two months after the accident plaintiff suffered from an inguinal hernia .and he never received any relief from it until he underwent an operation in Shreveport. Dr. Blume, plaintiff’s family physician, testified that in his opinion plaintiff’s trouble was caused by the accident. He examined him, knew the history of the case, recommended the operation and was present at the TriState Sanitarium in Shreveport when it was performed by Dr. J. C. Willis. The plaintiff says he never suffered from hernia in any form before the accident. In this testimony he is corroborated by his father. A strong corroborative circumstance is that before the accident the plaintiff was a strong, healthy young man, able to do any kind of work. He loaded, handled and unloaded heavy cross-ties without assistance. After the accident he continued working, but could never do the work he formerly did. He needed help always in loading and unloading ties. The fact that he was well and could do the hardest manual labor before the accident and, dating from the accident, he could do no more heavy work but grew steadily worse for two months and then had to be operated on, negatives the idea that he may have had this trouble for several years before.

To offset plaintiff’s contention that his trouble started with the accident, defendant introduced some testimony. Will Reeves stated that seven or eight years before the accident when plaintiff was a young boy he ordered a truss for him. Plaintiff and his father both deny this and state that it was for another brother. W. F. Tipton, another witness, testified that some three years or more before the accident he went swimming with the plaintiff and remembered seeing he wore a truss when he was undressed. Both these instances happened too long ago for the memories of the 'witnesses to be accurate or reliable, especially since the plaintiff and his father both deny that he had this trouble before the accident.

Plaintiff is criticized for not producing Dr. Willis as a witness at the trial. We do not think this criticism is justified. Dr. Blume gave all the medical testimony that was necessary to connect the injury with the accident. It would have -been very expensive to bring Dr. Willis to the trial. If defendant knew, or had reason to believe, that this witness would give testimony against the plaintiff it was his duty to produce him. Of course, if he were the only physician that could testify in the case it would have been the duty of the plaintiff to produce his testimony, either in person or by commission. But this was not necessary. Dr. Blume was close by and his testimony was sufficient. We think that the proof is conclusive: (1) That defendant’s employees were guilty of gross and inexcusable negligence; (2) that plaintiff was free of negligence; (3) that plaintiff’s physical injury and property damage are the direct result of the negligence of defendant’s employees, and (4) that defendant is therefore liable.

QUANTUM OF DAMAGES

In his demand for damages for this accident the plaintiff has been very reasonable. It often happens in personal injury cases that the plaintiffs demand sums greatly in excess of the actual damages caused by the accident in the hope and expectation of securing a judgment for a smaller amount that will approximate the real damage. All the items claimed except those for pain and suffering and permanent disability were definitely proved, and from the evidence we think that these two items are satisfactorily established. Plaintiff’s condition was relieved by the operation, but he is nevertheless permanently impaired and will never be able to do the character of work that he used to do. His suffering was bound to have been severe and intense and continued for some months.

For the reasons assigned, the judgment appealed from is annulled, avoided and reversed, and it is now ordered, adjudged, and decreed that there be judgment herein in favor of the plaintiff, Ernest O. Holcomb, against the defendant, Tom Perry, for the sum of $2,548, with 5 per cent interest from April 18, 1931, with all costs of both courts.

DREW, J., concurs.


source: Caselaw Access Project

author: McGREGOR, J.

license: Public Domain

text:
    No. 4103
    Second Circuit
    HUDNELL v. THAMES
    (February 16, 1932. Opinion and Decree.)
    Joel L. Fletcher, of Colfax, attorney for plaintiff, appellant.
    John A. Williams and James H. Williams, of Colfax, attorneys for defendant, appellee.
   McGREGOR, J.

In this case the plaintiff alleges that defendant is indebted unto him in the sum of $2,075, and he prays for judgment against him in the same amount. It is evident that this court has no jurisdiction over the controversy ratione materiae. It is therefore ordered that the case be transferred to the Supreme Court under provisions of Act No. 19 of 1912', within thirty days from the date on which the record in the case is returned to the clerk of the Eighth Judicial District Court, Grant parish.


author: STEPHENS, J.

text:
    No. 4136
    Second Circuit (Second Division)
    A. A. RAPHIEL CO. v. HOLLINGSWORTH
    (February 16, 1932. Opinion and Decree.)
    W. Peyton Cunningham, of Natchitoches, attorney for plaintiff, appellant.
    Henry W. Bethard, Jr., of Coushatta, attorney for defendant, appellee.
   STEPHENS, J.

The plaintiff brought suit to recover .the sum of $529.85, the alleged balance due him by defendant resulting from a series of transactions in connection with the purchase of cotton “on call.”

The defendant answered denying the indebtedness. He averred that he tendered the plaintiff his note for $500 in full settlement of all of the transactions relating to the cotton in question, and that plaintiff accepted the note as tendered; and that the note has been paid, and the obligation thereby discharged.

A trial resulted in the rejection of plaintiff’s demands, and the plaintiff appealed.

The record on appeal was lodged in this court on May 30, 1931, and the case was set for trial for January 13, 1932. On January 12, 1932, the attorney for the defendant, appellee, appeared by motion to dismiss the appeal on the ground that the note of evidence taken on the trial of the cause is not contained in the transcript.

The following day, which was the day fixed for hearing, the plaintiff appeared through counsel, and, with the note of evidence attached thereto, filed a motion to remand the cause to the trial court for the purpose of completing the transcript by including therein the note of evidence; and in the alternative prayed therein that the note of evidence be ordered filed by the clerk of this court, and that the same be considered as part of the transcript. The plaintiff, appellant, alleged that he was without fault in the premises.

During the hearing of the motion, the counsel for the plaintiff, appellant admitted that the reason the note of evidence was not contained in the transcript was because i.t had not been paid for, and therefore had not been filed with the clerk by the court reporter. The counsel stated in his motion that he had paid certain costs and was under the impression that the cost of the note of evidence was included therein, and did not discover this error until two days before the case was fixed for trial in this court.

The fault is clearly that of plaintiff, appellant. The clerk of the trial court violated no duty in failing to pay for the note of evidence, and was without authority to do so if he felt so inclined. He could not include it in the transcript, as it had not been filed in his office.

Under the circumstances herein existing, we know of no precedent for granting the relief sought by the appellant. On the other hand, the authorities are numerous that the situation justifies the dismissal of the appeal.

It was held in the case of Jean Torres v. Felix Falgoust, 35 La. Ann. 818:

‘‘A motion for a certiorari to perfect the transcript, made after a motion to dismiss has been filed, and on the day of trial, cannot be granted where the transcript is defective by the fault of the mover.”

This early ruling of the Supreme Court, which is so clearly applicable to the facts here, has been consistently adhered to in innumerable later decisions.

Appeals are favored, and we are reluctant to deny the appellant relief; but it can readily be seen that if we establish a precedent, which litigants might rely upon, to the effect that there is no necessity for paying for the note of evidence and filing it with the clerk of the trial cour.t until the case is called for hearing on appeal, such precedent would invite and lead to endless confusion, delay, and injustice.

For the reasons assigned, the motion to remand is overruled, and the motion to dismiss the appeal is sustained.


author: DREW, J.

text:
    No. 4157
    Second Circuit
    YELVERTON v. LOUISIANA CENT. LBR. CO. ET AL.
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    Cas Moss, of Winnfield, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendants, appellees.
   DREW, J.

Plaintiff sued under the Workmen’s Compensation Act of Louisiana (Act No. 20 of 1914, as amended), alleging that Luther Johnson was employed by the Louisiana Central Lumber Company to manufacture and deliver cross-ties to its tram railroad, and that, while he was working for the said Johnson on August 15, 1930, hauling ties, a cross-tie fell from the wagon, the end of the tie striking his foot, crushing and fracturing the bones, and tearing the ligaments to such an extent as to render the foot permanently disabled, and .that he has lost the use of the foot. He prays for compensation at the rate of 65 per cent of his weekly wage for a period of four hundred weeks.

Defendant admitted that Johnson was engaged as an independent contractor with defendant in manufacturing and delivering cross-ties to its. railroad on August 15, 1930, and that plaintiff was employed by Johnson; that, while engaged in the regular scope of his employment, a cross-tie fell on plaintiff’s foot, causing certain minor injuries and contusions which disabled plaintiff from performing his usual work for a few weeks. The wages claimed by plaintiff are admitted, and defendant alleged that it had paid plaintiff compensation for a period of fifteen and one-sixth weeks, and furnished proper medical attention; that it ceased to pay plaintiff compensation on December 1, 1930, at which time he had fully recovered.

The lower court rejected plaintiff’s demands as of non-suit, and he prosecutes this appeal. Defendant has, answered the appeal, praying that the demands of plaintiff be rejected.

Counsel for plaintiff has abandoned his claim for four hundred weeks’ compensation in this court, and correctly states that, if plaintiff is entitled to compensation, it is for the total loss of the foot, and could not exceed 65 per cent of his weekly wage, for a period of not more than one hundred twenty-five weeks.

A cross-tie fell on plaintiff’s foot, injuring it to some extent. He remained in his home for one day, and, according to his testimony, he used crutches for about one month and ten days.. He visited a doctor on the third day after the accident, and continued to visit him weekly thereafter until he was discharged, about December 1, 1930 — three and one-half months after ■the accident. Plaintiff’s foot was swollen for five or six weeks after the accident, when all the swelling left the foot. A month and a half after the accident he went squirrel hunting with some friends and remained in the woods for six or seven hours. Although plaintiff was limping at the time, he did not complain to his companions of his foot hurting him. In the latter part of October or first of November, plaintiff stated to Dr. Mecom that his foot was well, and that he was ready to go back to work. Dr. Mecom testified that at the time plaintiff was walking in a regular manner. About November 1st plaintiff applied to his, former boss for his job, and was informed that his, services were not needed, due to a cutting down of the crew. He also applied to two others for a job, but was not successful in securing one. Afterwards plaintiff went back to Dr. Mecom, complaining of his foot, and Dr. Mecom ordered him paid compensation until about December 1, 1930, when he ordered the compensation to cease, and pronounced plaintiff well. This suit followed.

Plaintiff offered a number of relatives and friends, as witnesses, all of whom testified that prior to the accident plaintiff walked without a limp and as any other ordinary man would, but that since the accident he had constantly limped and walked on the side of his foot. Mr. Holly, an uncle of plaintiff, testified that in the month of November, December, or January following the accident, he sawed wood with plaintiff for two days, and that plaintiff had to quit work on account of his foot.

Mr. Warwick testified that he worked with plaintiff, carrying cross-ties ,to be cut into wood, and that plaintiff was bothered with his foot. He does not fix the time.

Dr. Mecom, who had charge of plaintiff for the defendant company, contends that plaintiff is a malingerer. If this is true, the lay testimony offered by plaintiff is of little more value than his own testimony, as it is all based upon the assertions of plaintiff and his actions in limping, caused from walking on the side of his foot. If he is. a malingerer, it would be very easy for him to fool his friends who occasionally saw him, as well as his more intimate relations and acquaintances.

As to the real injury to plaintiff’s foot, it is necessary for us to look to the testimony of the physicians who testified in the case. Dr. Mosely examined plaintiff the day before the trial and made an X-ray of the foot. He testified that the X-ray showed the head of the fifth bone of the foot to be rarified and a little nick off the end of the fourth bone of the foot; a little inflammation of the joint between the fourth and fifth toes, and that he has traumatic arthritis of ¿he toes, caused by blood, nerve, or foot sprain. He further testified that the accident could have caused injury to the ligaments and tendons of the foot, but there was no way to tell, and he does not know whether the injury is permanent or not.

All of the doctors testified .that plaintiff is suffering in both feet with what is known as “flat feet.” Dr. Green made an examination of plaintiff’s foot in December, 1930. He did not make an X-ray of it. He testified that from looking at the foot he could not tell there was anything wrong, except that plaintiff had flat feet. However, he concluded that he had traumatic arthritis in the foot and toes.

Defendant offered four doctors, and Dr. Meeom, who examined plaintiff shortly after the accident and every week thereafter until he was discharged. When Dr. Meeom first examined him, he found some contusion of the instep of the foot, with swelling; and that the swelling disappeared in a few weeks. He testified that the X-rays, including one made by Dr. Mosely, disclosed no fractures, and no abnormality. When plaintiff was discharged, he was walking on the bottom of his foot. He saw him walk about town and as he came to his office. He said the arch was not broken down, and that the ligaments could not be injured without injuring the bones of the foot; and that there was no tenderness, of plaintiff’s foot, and arthritis would necessarily cause tenderness.

Dr. Rand saw plaintiff and examined him on October 28, 1930, and also a few days before .the trial. His physical findings were negative. He testified that the line on the X-ray picture called a fracture by Dr. Mosely is not a fracture, but the anterior end of the cuboid bone, and that the same line is shown in the picture of the other foot; that a torn ligament would not cause the kind of pain plaintiff claims to have, and the X-ray made by Dr. Mosely does not show arthritis or any disability of the foot. Dr. Rand thought on October 28, 1930, when he examined plaintiff, that he would be well in two months, although he then thought there was a small fracture, which he decided on further examination was not there. He found nothing a few days before the trial to prevent the full use of the foot, and does not think plaintiff has been walking on the side of his. foot for the reason .that the skin does not show any reaction or callous formation, which would necessarily be if he had walked on the side of his foot from the date of injury to the day of trial.

Dr. Masterson examined plaintiff and made an X-ray of his foot on October 10, 1930. He found no fracture, and found that plaintiff had the normal use of his foot at that time. He tested him by makIng him walk on it, and observed him walking on the bottom of his foot.

Dr. Hines, testified there was no fracture, and he thought the foot was only-bruised, and considered plaintiff entirely recovered when discharged by Dr. Mecom. He saw the X-ray made by Dr. Masterson, and fully corroborates his findings.

The preponderance of testimony of the doctors is with the defendant, and it is very clear from the testimony of the four doctors who testified for defendant that they think plaintiff a malingerer. To entirely reject his demands would be to so hold; however, the courts are slow to declare one a malingerer, unless it is clearly and conclusively shown, for the reason that a gross injustice might be done to an innocent party. To hold one a malingerer is to hold him to be a perjurer for gain. The district judge undoubtedly took this into consideration in rejecting plaintiff’s demands as of non-suit.

The rule of the courts in this state is one of liberality in compensation cases, and, where it is reasonable to believe that evidence might be adduced to prove an injury that was not proved on the trial below, and especially where there is such a wide difference of opinion as to the showing of an X-ray picture, as in this case, we believe it not inconsistent with the rule of liberality adopted by the courts to non-suit the case and not to reject the demands in toto.

We see no error in the judgment of the lower court, and it is therefore affirmed, with all costs.


text:
    No. 4159
    Second Circuit
    MICHIELS v. OSER
    (February 16, 1932. Opinion and Decree.)

      Argued before DREW, MeGREGOR and CULPEPPER, JJ.
    K. Hundley, of Alexandria, attorney for plaintiff, appellee.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellant.
   DREW, J.

This is an action in damages brought hy Lawrence Michiels. against Prank Oser for the sum of $150.60, claimed on account of an automobile collision which occurred on November 21, 1930, at about 8 o’clock in the morning, at the intersection 'of Bolton avenue with Jackson street in the city of Alexandria, La.

The undisputed facts show that plaintiff was driving towards the river on Jackson street, and defendant was driving out Jackson street, when they both reached Bolton avenue. It was the purpose of plaintiff .to proceed across Bolton avenue and continue up Jackson street to the town, and it was the purpose of defendant to turn from Jackson street in Bolton avenue for the purpose of going towards Lee street and to his work. As. .the defendant made a left turn into Bolton avenue from Jackson street, his car collided with plaintiff’s car at a point in Bolton avenue, the exact location of which is disputed. Both cars were damaged as the result of the collision, and plaintiff is claiming the amount above stated. Defendant, in reconvention, is claiming the sum of $65 damages which he suffered as the result of said collision. Judgment was rendered by the trial court in favor of plaintiff in the amount sued for, and from this judgment defendant prosecutes this appeal.

Plaintiff produced two witnesses who were in a position to testify to the facts surrounding the collision — the plaintiff himself, and Thomas Wells, who was on Bolton avenue a short distance from the accident. Defendant produced three witnesses, consisting of himself and his two children, a girl fifteen years of age and a boy twelve years of age. Plaintiff and his witness Wells testified that when he was attempting to cross Bolton avenue and had passed the center of the intersection, defendant made a short left-hand turn, cutting the corner and running into the left side of plaintiff’s car, striking the car about midways and forcing plaintiff’s car into the curb, causing the damages he claims to have suffered.

According to the testimony of defendant and his witnesses, upon reaching the intersection, he stopped his car until the traffic light showed green, then proceeded to about the center of the intersection when he attempted to make a left turn, at which time plaintiff’s car suddenly appeared and undertook to cut around the front of defendant’s car, and the collision occurred. Plaintiff testified that he saw defendant’s car some distance before it reached the intersection. Defendant testified that he did not see the plaintiff’s car until .the very time of the accident; that it appeared to him as though “it just jumped up out of the ground.’’

The most favorable view from the defendant’s standpoint that could be taken from the evidence in the case is that plaintiff and defendant were proceeding in opposite directions on Jackson street, and that they arrived at the intersection of Jackson and Bolton avenue at the same time. That plaintiff proceeded to cross the intersection, continuing his straight course, and that defendant, on reaching the center of the intersection, attempted to make a left turn, heading out Bolton avenue, and on making the turn ran into the left side of plaintiff’s car at a point near the center of the intersection. Defendánt does not contend that he gave any signal indicating a left turn or a change of his course and swears that he did not see the oncoming car of plaintiff. Under this view of the facts in the case, which is very liberal to defendant under the evidence, he is guilty of gross negligence and is liable to plaintiff for the damage caused him.

Section VI of the ordinance governing traffic regulations in the city of Alexandria reads, as follows:

“Drivers of vehicles, before stopping, turning, slowing down or changing the course, shall ascertain that such movement can be made in safety, and shall make known their intention by signaling by hand.”

Plaintiff had the right to expect defendant to observe this traffic regulation, in which he signally failed, in that he did not keep a proper lookout in order to ascertain if his. change of course could be made in safety, and he did not signal by hand his intention to make a left-hand tui’n. If defendant had been keeping a proper lookout he should have seen plaintiff approaching from the opposite direction, and that which he should have seen he is supposed to have seen. On seeing plaintiff attempt to cross the intersection, he therefore knew or should have known that he (defendant) could not make a left-hand turn without a collision. That is. an evident fact, due to the collision having occurred. If defendant had kept a proper lookout, he would have kept to the right of the center of the intersection in making the left-hand turn and, if he had done so, the accident would not have occurred, as the witness Wells said if defendant had gone six feet farther before turning to the left, he would have missed plaintiff’s car.

When two vehicles going in opposite directions. enter an intersection at the same time, the one intending to change its course by a left turn should let the approaching vehicle, which intends to continue its straight course, pass, before attempting a left turn and failure to do so is gross negligence.

The testimony does not justify us in holding that either car was speeding and defendant has failed to prove any negligence on the part of plaintiff, while the testimony conclusively shows the following acts of negligence on the part of defendant:

1. In not allowing plaintiff’s car to pass on before attempting a left turn into Bolton avenue;

2. In not keeping the proper lookout;

3. In not signaling his intention to change his. course; and

4. In not keeping to the right of the center of the intersection in making the left turn.

The above acts of negligence on the part of defendant were the sole, proximate cause of the accident. The lower court found for plaintiff in the amount sued for, and rejected defendant’s reconventional demand. We think the amount sued for by plaintiff is shown to be the correct amount necessary to repair his car and put it in the same condition it was before the accident, which is the amount he is entitled to recover.

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


author: CULPEPPER, J.

text:
    No. 4199
    Second Circuit (Second Division)
    DUKE v. FORD, BACON & DAVIS, INC.
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    Argued before DREW, TALIAFERRO and CULPEPPER, JJ.
    Harry V. Booth, of Shrevep.ort, attorney for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson and Edward S. Klein, of Shreveport, attorneys for defendant, appellee.
   CULPEPPER, J.

Plaintiff brought this suit under Act No. 150 of 1920, to recover the sum of $10.50 for the half of the day of March 25 and the whole of March 26, 1931, which he alleges he actually worked as an employee of defendant, at $7 per day. Plaintiff also sues for the additional sum of $7 per day for each day after March 26, 1931, until defendant shall pay or tenders payment of “the full amount due your petitioner on the date of such payment or tender.” This additional sum sued for is claimed as penalties under the act referred to, upon the alleged ground that plaintiff was employed by defendant as “cat driver” or driver of a caterpillar tractor, at a wage of $7 per day, beginning the afternoon of March 25th and working that afternoon, the next day, and on the morning of the 27th he was discharged. He alleges he made demand on his employer immediately after being discharged, for “all moneys due him,” but was refused, and that he made the same demand at defendant’s office, and was refused, and again on March 30th and on April 1st, and was refused; and that he appeared at defendant’s office on April 2d and again made demand and was on that occasion tendered the sum of $4.25 in full payment, which he refused. Plaintiff states in his testimony that he refused to accept the amount offered him for the reason that the amount was not correct, as he was entitled to one and a half day’s work at $7 per day.

Defendant, in answer, denied plaintiff was employed at $7 per. day, but averred the wage was to be 25 cents an hour, which, at ten hours a day, would amount to only $2.50.

Upon the trial of the case the lower court found the wages to be at $2.50 per day, as claimed by defendant, and accordingly gave judgment for $4.25 to cover for the one day and a half. The court also gave judgment for the additional sum of $2.25 per day, as penalties, for (quoting) “a period of six days, namely, from March 27th to March 31st, 1931, inclusive.”

Defendant appealed both devolutively and suspensively, and plaintiff appealed devolutively, from the judgment.

Defendant attacked the constitutionality of the act in the lower court, which was overruled by the court, and same has been made before this court.

While the testimony is conflicting upon the disputed question of the character of the employment and rate of wages, the judge of the lower court, who saw and heard the witnesses testify, came to the conclusion that defendant’s contention in that respect was correct. We are inclined to think the judge’s' findings correct. At any rate, we cannot say hef was in error. Plaintiff and one other witness testified that the wages agreed upon between plaintiff and Mr. Bibbs, superintendent who employed him, was $7 a day and the work to be done was driving a caterpillar tractor. Mr. Bibbs and one other witness, R. E. Thorpe, testified that plaintiff was not employed as a caterpillar tractor driver, which. carried a wage of $7 a day, but was employed as a common laborer to assist the crew of hands then engaged in unloading some tractors, wagons, and other equipment for use in some construction work which defendant company was getting ready to perform in that vicinity. In view of the fact that Bibbs was at the time engaged in unloading the equipment from the railroad cars in which they were shipped to this point, and it was not his intention to begin using the tractors for several days, and the further fact that Bibbs already had a man, Mr. Pippin, to drive the tractors out of the cars in the work of unloading, and did not need another driver at the time, as well as other circumstances testified to, we think render it more probable that Bibbs did not employ plaintiff at the time as a tractor driver. Plaintiff did not engage in driving a tractor, but engaged in helping to unload the various equipment and devoted his time to that work as long as he did work. The rate of pay for that class of work was 25 cents an hour, and at ten hours to .the day made the daily wage $2.50.

According to plaintiff’s own allegation, and his testimony, when he demanded payment for his time he made the demand for pay at the rate of $7 a day, when the fact was, as found by the court, that he was not entitled to but $2.50 per day. This being true, defendant was within its rights in refusing to pay the amount demanded. Since the statute must be construed strictly, in cases where the employee demands pay at a higher wage than is due him under the contract of employment, the case, we think, is not one coming within its provisions. The fact that defendant finally offered, after repeated similar demands, to pay plaintiff the actual and correct amount due and plaintiff refused to accept same, still would not subject defendant, under the circumstances, to the payment of the penalties during the time from the first demand to the time of the tender. The fact that plaintiff refused the tender shows that there was a dispute between the parties as to the correct amount due. Certainly no penalties would attach after the tender, when there was a dispute between the parties as to the amount of wages due, and in which defendant was found to be correct upon the trial of that issue. Whitehead v. E. J. Deas Co., 9 La. App. 47, 118 So. 856; Neeley v. Magnolia Gas Co., 15 La. App. 224, 131 So. 589.

Since our conclusion is that the case is not one coming under the statute, it is unnecessary that we pass upon the constitutionality of the statute.

Defendant reconvened for judgment against plaintiff for $150 as alleged damages to one of its tractors which it is claimed was caused by the negligence of plaintiff. The court apparently rejected the demand, and we think correctly so, as the testimony is wholly insufficient to warrant any recovery.

In view of the reasons above expressed, the judgment appealed from is affirmed as to the sum of $4.25 allowed to cover for the one and a half days worked, and as to the remaining sums awarded to cover penalties, same is reversed; defendant to pay costs of the lower court, and plaintiff the costs of appeal.


author: TALIAFERRO, J.

text:
    No. 4205
    Second Circuit (Second Division)
    HILL v. MERIDIAN FERTILIZER FACTORY
    (February 16, 1932. Opinion and Decree.)
    G. Randall Whitmeyer, Barksdale, Bullock, Warren, Clark & Van Hook, Irion & Switzer and Thomas M. Comegys, Jr., of Shreveport, attorneys for plaintiff, appellee.

      Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff was injured, while in defendant’s employ, by a cake of hardened commercial fertilizer sliding down the side of a large pile thereof, striking his right leg violently above the ankle, and causing a complete fracture of the internal malleolus. The blow knocked plaintiff down and unconscious for a short time. He was immediately carried to a physician, who had an X-ray made of the wound, reduced the fracture, put on a splint, and provided him with crutches. This doctor continued to treat the wound and, after two months, discharged the patient. Union of the bones was .then complete, but there was not complete ossification. Plaintiff was advised to make use of the injured limb as a means of hastening ossification. No further trouble from the fracture was experienced, and when the case was tried it was pronounced in satisfactory condition.

Plaintiff brings this suit to recover compensation for said injury and alleged results thereof. The gravamen of his action is expressed in paragraph IV of the petition, which we quote, viz.:

“IV. That as a result of said accident and injuries, petitioner has suffered a severe and permanent shock to his nervous system; that he is afflicted with violent trembling and becomes highly excited on slight provocation; that he suffers constant nervous twitching and trembling of the muscles in all parts, of his body; that he is afflicted with sleeplessness and is unable to get proper rest, due to his nervous condition; that he has virtually no control over his muscles, nerves, or limbs, all a direct result of said accident.”

He further alleges that said fracture has not properly healed; that his leg continues to pain him severely, and he fears and believes that same will never heal; that he has been rendered permanently and totally unable to do any work of a reasonable character.

Defendant admits, employment and wages of plaintiff as alleged by him, but denies all other allegations of the petition, except as to its corporate capacity.

There was judgment for plaintiff for $9.75 per week, during disability, not exceeding 400 weeks, less a credit of $370.50 (38 weeks’ compensation paid). Defendant has appealed.

Plaintiff suffers from a disease commonly called shaking palsy (Parkinsonism), which affects his head. His contention is that this affliction is an effect following and caused by the blow that fractured his leg, while defendant insists that he was so affected before the injury and the condition has not been aggravated thereby.

The following quotation from the lower court’s reasons for judgment correctly states the law applicable to the contentions of the parties, viz.:

“Plaintiff is either suffering from a functional disease brought about by trauma, or he is suffering from a true shaking palsy, which is an organic disease and has no connection with the trauma which he received, or he is suffering from true shaking palsy, an organic disease, aggravated by the trauma which he received. If he is suffering from functional shaking palsy, brought about by the trauma, he is entitled to recover. If he is suffering from a true shaking palsy, aggravated by the trauma which he received, he is entitled to recover. If he is suffering from .true shaking palsy which he had prior to the accident, and which has not been aggravated in anyway by the trauma, he is not entitled to recover.”

The evidence establishes beyond any question that before being injured plaintiff was a healthy, stout man, and a good worker. It also establishes that this condition has changed, and he is not now able to do manual labor of a reasonable character.

A large number of the witnesses, including many sworn for defendant, testified that he was not the strong, healthy man he used to be, and looked different to what he formerly did.

At the time of injury he was performing the heavy work of shoveling commercial fertilizer into a ear and shoving the heavily loaded cart to an elevator. Prior to this service with defendant he worked on the highways of Caddo parish and farmed.

Some fifteen lay witnesses, who were acquainted with plaintiff, testified ' on trial of the case specifically with regard to tremor of his. head prior to time of his injury. There is wide variance between some of them.

Five white men, including a former foreman of defendant, two storekeepers, a mail carrier, and one farmer, and three colored men, all well acquainted with plaintiff, testified that they never noticed anything wrong with him and never observed any shaking of his head. A road construction foreman of Caddo parish, under whom plaintiff worked in 1922, remembered that at that time plaintiff’s head was given to shaking. Seven colored witnesses testified that prior to his injury plaintiff’s head would shake. Some of these say it shook “a little,” while others say you had to notice closely to observe it. Two other colored witnesses, co-laborers, with plaintiff when the accident happened at defendant’s plant, testified that plaintiff’s head would shake as much before as after the injury. One of defendant’s foremen testified that plaintiff looks better now than he did prior to the accident, but he never noticed that plaintiff’s head had tremors. Mr. Thayer, defendant’s superintendent, testified that before the -accident plaintiff was nervous, shaky, and weak, and was given only light work, and concludes by saying he was in better condition physically at date of trial than before he was injured. It is well to remark here that, as to the latter statement, this witness is contradicted by over a dozen witnesses, including several of defendant’s.

Plaintiff’s testimony supports the allegations of his petition as to the effect the injury from the falling cake of fertilizer had upon his body in general. He states that he cannot walk far without becoming tired; that walking causes him pains, that run up his right leg and side; that he has not perfect control over the movements of his right leg, arm, and side; that these parts of his body “shakes a whole lot,” and “as time goes on it gets badder and badder’”; that he cannot sleep on the right side on account of its nervous tendencies; that his appetite is not good and he is weak physically; that the nervous condition with which he is affected manifested itself after the injury.

Several physicians testified in the case, on each side, including nerve specialists. We will give a resume of some of their evidence as far as we deem needful for the purpose of throwing light on the issue of whether or not plaintiff’s condition is traceable to the injury causing the fracture of his leg.

The lower court, before trial, appointed Dr. D. L. Kerlin to make an examination of plaintiff and report his findings. He did so. This report reads as follows:

“I do not find any evidence of organic disease of his nervous system. He presents certain objective nervous symptoms, viz.: course tremor of muscles of entire right side of body and head, and some muscular weakness of right side. In my opinion these symptoms are purely hysterical in character, and are causéd by a desire for compensation.”

Dr. Kerlin did not testify as a witness in the case. The report is ex parte.

Dr. A. A. Herold, a nerve specialist of many years’ experience, made two examinations of plaintiff; the first in December, 1930, and the second five weeks later. He found muscular weakness and tremor, on right side of body, right leg, and arm, which the patient seemed unable to control. These were the only objective symptoms noticeable.

He found more or less general physical weakness in plaintiff. Dr. Herold diagnosed plaintiff’s trouble as traumatic hysteria, resembling Parkinsonism. He had doubt as to whether the disease was traumatic neurosis, hysteria brought on by trauma, or the true condition known as Parkinsonism, which is organic in nature, following the disease known as encephalitis (sleeping sickness). He doubted it being Parkinsonism, as plaintiff had no history of having had encephalitis. His opinion was that the trouble was functional, not organic, as only the nerves were involved, not the nerve centers. That the condition was involuntary with plaintiff, and while it may be produced by either physical or psychic trauma, he thought, in this case, it was caused by the former, in view of the patient’s low mentality; that the injury received by plaintiff when his leg was fractured was sufficient to bring about the condition he found him in, and worry and nervous strain would affect it •too; accelerate bringing it on in addition to the original physical shock; that traumatic hysteria did not mean imagination, but meant that the nervous system has had a jar sufficient to impair the function of the nerve trunk. He did not think there was good nutrition of all parts of plaintiff’s body. He said no one could tell if plaintiff’s ailment will improve, or whether it will last him through life. His condition had not improved any from the first time Dr. Herold examined him to the time of trial. He was certain plaintiff is not a malingerer. It is unusual for one of his mentality to be one.

The foregoing is the substance of Dr. Herold’s testimony as. a witness in behalf of plaintiff. He was also called to the stand as a witness for defendant. In order to have the full benefit of his evidence on •the pivotal issue involved, we quote salient parts of it:

“Q. And suppose that a person has a little tremor that is hardly perceptible and meets with an accident, such as you know that this plaintiff met with, is it your opinion that that trauma might aggravate the tremor as it existed?
“A. Yes, sir.
‘‘Q. Well, let us suppose that tremor exists in a person, very slight, so slight that it is hardly noticeable with ordinary observation, and then that person meets with an accident such as the plaintiff in this case met with; that nervous symptoms immediately develop noticeable to anybody and everybody, particularly practitioners of medicine, would you say that the trauma has had the effect of aggravating the tremor or the condition, whatever it was, that existed prior to the accident?
“A. Yes,- sir.
“Q. It makes no difference Whether it precipitates, in the first instance, a tremor or aggravates one that previously existed, the effect is about the same, if it has a very aggravative effect?
“A. Yes, a shock, as I said yesterday, will very frequently bring on tremor if one pre-exists. Of course it would be more liable for it to be exaggerated after-wards because of the fact that is the weak point of the system.
“Q. The trauma, in other words, would be more likely to have the effect of aggravating the condition that existed than creating a condition that did not exist to start with? That is true, isn’t it?
“A. Yes.
“Q. Would the assumption that the plaintiff in this case had a very slight tremor, such as I have described .to you, militate against your diagnosis that he is now suffering from traumatic neurosis, with the case presented to you as it has been?
“A. He could have a combination of the two conditions. He could have chronic encephalitis and with tremor interposed upon top of it. * * *
“Q. That condition, if it existed, could be very much aggravated and usually would be aggravated by trauma such as this plaintiff received?
“A. What I mean, the symptoms of it. This tremor could be aggravated by injury.
“Q. Yes, and the other disease could coexist along with the encephalitis?
“A. Yes.
“Q. You have no reason at this time, with the case before you as it is, to change your diagnosis that he has traumatic neurosis, have you, Doctor?
“A. Well as I said yesterday my diagnosis was based upon the physical findings and history. We have to go by both, we cannot go entirely and simply by examination. We have to depend to a large extent upon the history in making a diagnosis and it all depends in my mind as to which is the correct history. There seems. to be some divergence of opinion here. I • mean by that some have said that he had this tremor, as I understand, before; some have said that he did not have it. If he had the tremor before, the probability is that he has encephalitis.
“Q. At the present time?
“A. At the present time. He could have both conditions, as I say.
“Q. If we assume, for the sake of argument, the history as being correct, that he had slight tremor before ‘the accident, would you say that his present condition is traumatic neurosis as well as encephalitis?
“A. Yes, sir.”

The impression we get from Dr. Herold’s testimony, as a whole, is that, if plaintiff did not have tremor prior to his injury, then his present condition is attributable to the effects of the injury; and if he did have slight tremor before he was injured, then most probably the condition has been aggravated as an effect of the injury. The fact that plaintiff’s, condition since the injury has become pronounced, so much so that it is easily observed by those he contacts with, supports the opinion expressed by Dr. Herold.

The testimony of Dr. Roy C. Young was taken under commission. He is, also a nerve specialist. Hé made physical examination of plaintiff in December, 1930, and expressed the opinion that plaintiff is suffering from an early stage of true shaking palsy, an organic disease. He does not think it was caused or brought about by the accident to plaintiff. He did not testify as to whether' or not the trauma exaggerated the condition he found in plaintiff.

It is made certain by the evidence that it is possible that functional shaking palsy could be originated by a fall and injury such as plaintiff experienced; and it is equally certain that, if he was affected by slight tremor of the head prior to the accident, such condition could have been aggravated by .the fall and injury. In either case, as well said by the lower court, plaintiff is entitled to recover. It is equally certain that, whatever plaintiff’s condition was when injured, it is much worse now, so aggravated that he cannot do manual labor to any great extent. It is also fairly well established that, if plaintiff was affected by slight tremor prior to the accident, such condition was not nearly so noticeable then as now.

In the course of his. reasons for judgment, the lower court said:

“In our view of the case, it makes no difference whether the plaintiff was suffering. with a true shaking palsy prior to the accident or not, although we are inclined to the view that he did have this in an incipient stage at that time.
“The report of Dr. Kerlin is directly contradicted by the testimony of Dr. Her-old, who was a witness for both the plaintiff and the defendant, and by the testimony of Dr. Young, a witness, for defendant.
“Under the report of Dr.. Kerlin,. we think that plaintiff would be entitled to recover, under the authorities in this state. Under the testimony of Dr. Young, if the trauma had no aggravating effect on the plaintiff (a matter on which Dr. Young does not testify) he would not be entitled to recover. Under the testimony of Dr. Herold, given both as a witness for plaintiff and as a witness for defendant, we think the plaintiff is entitled to recover. The testimony of Dr. Herold given as a witness for plaintiff was based on the assumption that plaintiff did not have a true organic shaking palsy prior to the accident; and that on that assumption, he was now suffering from a functional shaking palsy, which is a true disease brought about by the shock from the trauma. On this theory, plaintiff would undoubtedly be entitled to recover. Under our view of the testimony given by Dr. Herold on cross-examination, and when placed upon the witness stand by the defendant, he testified that, even if the plaintiff was suffering from a true organic shaking palsy prior to the accident, in his opinion, the accident undoubtedly aggravated this prior condition. * * *
“While Dr. Herold does not say that the shock from trauma would necessarily aggravate a previous condition of an organic disease, if the conclusion is reached that such condition is. much worse after the accident and nothing tangible is presented as a cause for same except the trauma, then one must conclude that the trauma was the cause. And such a condition is much more likely to follow in a highly neurotic type, and Dr. Slicer, a witness for the defendant, testified that this plaintiff was of that type.”

We adopt these reasons as containing correct deductions from the evidence and conclusions of law appropriate to same.

It has been held by many decisions of our courts that, if an inactive or latent disease is aggravated or accelerated by trauma, which causes it to flare up and become active, producing disability, the employee is entitled to the benefits of the Workmen’s. Compensation Law, the same as he would be if the primary injury alone had caused the disability.

“To recover compensation, employee’s continued disability need not have directly resulted from injury; disability because of condition arising from injury or contributed to thereby being sufficient.” Anderson v. La. Oil Ref. Corp., 16 La. App. 294, 134 So. 343; Blackman v. Hope Engineering & Supply Co., 11 La. App. 92, 120 So. 682; Arender v. Grant Timber & Mfg. Co., 9 La. App. 132, 119 So. 498.

We are of the opinion that the judgment appealed from is correct, and we hereby affirm it.


text:
    No. 4209
    Second Circuit
    FAIRFAX v. INTERNATIONAL ORDER OF TWELVE, KNIGHTS AND DAUGHTERS OF TABOR, JURISDICTION OF LOUISIANA
    (February 16, 1932. Opinion and Decree.)
    Isaac Wahlder, of Alexandria, attorney for plaintiff, appellee.
    Herndon & Herndon and Charles M. Roberson, of Shreveport, attorneys for defendant, appellant.
   McGREGOR, J.

Anna Ford, later Anna Collier, carried an insurance policy or certificate in the defendant organization for the sum of $375. Her mother, the plaintiff herein, was named as the beneficiary. The insured died on May 24, 1929, and demand was made upon the defendant for the payment of the amount provided for under the contract of insurance. This demand was refused upon the alleged ground that the local ’ lodge had been suspended and for the further alleged reason that at the time of her death the insured was in arrears with her dues or “unfinancial,” as the members of the lodge call it. This suit is the result of the refusal of the defendant to pay. In the lower court judgment was rendered in favor of the plaintiff for the full amount of the policy and the defendant has appealed.

The only question to be determined is as to whether the insured was in good standing at the time of her death. It is contended by the defendant that the local lodge in which the insured held her membership was suspended several months before her death and had not been reinstated at that time and that as a legal consequence she was necessarily suspended personally and her policy or certificate of insurance null and void. An attempt was made to prove that the lodge had been legally suspended on August 20, 1928, and that due notice had been given to the lodge by letter. Tbe receipt of this letter, as well as any knowledge of its contents, was denied by all the officers of the lodge. But whether this notice was received by the proper officers of the lodge or not, it is not pretended that there was any attempt made to notify the individual members of the alleged suspension. In the case of Emanuel v. Central Grand Independent Order, etc., 16 La. App. 186, 133 So. 506, 508, this court held that an alleged suspension of a local lodge “could not have the effect of suspending the individual members to the extent of voiding their policies and denying the beneficiary the right to collect on them in case members who had paid all dues to the local lodge died while the lodge was under suspension.” It is not, therefore, necessary for us to decide whether the lodge was technically suspended at the time of the death of the insured. Whether it was suspended or not, the insured was not notified of the fact and furthermore it continued to meet and function as usual. So the only fact that must be determined is as to whether the insured was in arrears with her dues on May 24, 1929.

The defendant tried to show that the insured had paid no dues since February, 1928. To substantiate this contention a letter purporting to be addressed to the high priestess of the local lodge was introduced. This letter was dated December 28, 1928, and listed the insured as being delinquent since February, 1928. The high priestess denies ever receiving the letter. All the officers of the lodge testify that the insured had been regular in attendance and that her dues were paid promptly. Her passbook was introduced in evidence and its genuineness was vouched for by officers of the lodge. This book shows all dues paid for the months of May, 1928, to April, 1929, inclusive. All these dues may not have been received by' the defendant but they were paid to the local officers and it is firmly established according to all jurisprudence that these local officers are the agents of the defendant.

This narrows the case to the question of the dues for the month of May, 1929, in which month the insured died. Under the printed constitution and by-laws of the defendant grand lodge the dues of members were payable on or before the twelfth of each month, with the provision that the failure to pay by the twelfth shall deprive the beneficiary of the proceeds of the policy in case of the death of the insured. But it was proved on the trial of the case that it was the recognized custom of the lodge to accept dues from its members at its regular meetings which were held on the second and fourth Tuesdays of each month. At the first meeting payment of dues was always called for, but special announcement was made by the presiding officer that they would be accepted at the next meeting, or fourth Tuesday. The insured died on May 24, 1929, and the fourth Tuesday of May was the 28th. According to the long-established custom of the lodge, she died four days prior to the date on which she had a right to pay her dues without being suspended. There are numerous authorities to the effect that in the absence of notice of an intention to .enforce strict compliance with the requirement to pay dues on or before a set date, organizations such as the defendant are estopped by their former course of dealing in cases where it has been the uniform custom to accetpt the dues at a later date. This must be true, for this course of dealing with its members lulls them into a sense of security and causes them to believe, and to act accordingly, that the strict rules in regard to the time of payment of dues will not be enforced. Under this view of the matter the conclusion is irresistible that the insured in this case had a legal right to believe that she had until May 28, 1929, in which to pay her dues for the month of May, and her beneficiary cannot be deprived of the proceeds of her insurance because of her reliance upon this belief.

The judgment of the lower court is correct and it is therefore affirmed with all costs.


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    No. 4210
    Second Circuit
    PAUL v. BRADY
    (February 16, 1932. Opinion and Decree.)
    Polk & Robinson, of Alexandria, attorneys for plaintiff, appellant.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellee.
   DREW, J.

This suit arises out of an automobile accident which happened about six miles south of Alexandria on the Jefferson highway about 5:30 o’clock in the afternoon of September 13, 1930. Plaintiff alleged that he proceeded south on said highway until he arrived at the “Tom Wells Place,” where he intended making a visit. That it was necessary for him to leave the right side of the road and entirely cross the road in order to enter the Tom Wells place, which was situated on his left of the road. That upon reaching a point directly opposite the place where it was necessary for him to cross the road, he stopped his car, held out his hand, and carefully observed if anyone was coming from the rear or the front. That about the time he stopped a large sedan passed, going south, and a truck to his rear stopped. He then put his car in low gear and turned to his left across the road, and had nearly completed the crossing, when he was run into by defendant’s car. That his car was totally demolished, and that its value was $175, for which he sued. The acts of negligence he charges to defendant are as follows:

1. That defendant was driving at an excessive, careless and reckless rate of speed;

2. That he was driving out of the regular lane of traffic, with the right wheel of his car off the pavement and well onto the dirt shoulder of the road;

3. That he gave no signal or sound of approach;

4. That he was not keeping a proper lookout.

Defendant denied the acts of negligence charged to him and alleged that plaintiff deliberately cut in front of him when he was within twenty to twenty-five feet of him and too late for defendant to prevent the collision; and that the act of negligence by plaintiff was the proximate and sole cause of the collision. In the alternative he pleaded that the contributory negligence of plaintiff, as above alleged, was sufficient to bar his recovery. In reconvention, he reiterates defendant’s acts of negligence and ¡prays for the sum of $1,384.50 damages to himself and his car.

The lower court rejected both the demands of plaintiff and of defendant in re-convention. Prom that judgment, plaintiff appealed and defendant answered the appeal praying that he have judgment on his reconventional demand.

The preponderance of evidence, we think, discloses the following facts:

Plaintiff and his wife, in a model “T” Pord, were driving south on Jefferson highway, and upon arriving at the Tom Wells place, about six miles south of Alexandria and at a point directly opposite a cattle gap which was used as an entrance to the Tom Wells place, plaintiff stopped his car on the right-hand side of the road and held out his hand. At about that time a large sedan passed, going south, and at the same time there was a truck about 100 yards behind plaintiff, coming in the same direction. Plaintiff and his wife, realizing that they had to cross to the left of the road in order to enter the Tom Wells place, were making sure the oncoming truck was not going to try and pass them. Immediately after plaintiff stopped his car and the large sedan had passed, the truck stopped and plaintiff turned across the road to enter the Tom Wells place. When he had nearly completed the crossing— that is, his front wheels were off the pavement and the back wheels of the car were about two feet from being off, defendant’s car, going north, ran into plaintiff’s car, knocked or pushed it about forty feet, completely demolishing it.

In making the crossing, the speed of plaintiff’s car was from five to ten miles per hour and the width of the road was not in excess of twlenty feet. To the north of this place, there is a curve in the road and to the south, the road is practically straight for 300 yards. Plaintiff’s wife, who was on the right side and the one next to the oncoming car, did not see defendant’s car until almost the moment of the collision, due to the fact that she was looking behind, or to the north, and only turned around at the moment of the accident. Plaintiff did not see defendant’s car until it was within a few yards of him. According to his testimony, he did not see defendant’s car until his, plaintiff’s car’s, front wheels were off the pavement, and that he would have had to travel only about five feet to have been in the clear. It is true that he testified that at the time defendant’s car was sixty yards away and that his (plaintiff’s car’s) right wheels had just left the pavement. The fact is that defendant’s car left the pavement about twenty to twenty-five feet before striking plaintiff’s car, which, corroborates plaintiff’s testimony as_ to where he was when he first saw defendant’s car in every way except the distance he places defendant’s car, which is an impossible story and due, no doubt, to the excitement plaintiff was under at the time and which may have caused him to misjudge the distance. It is easy to see that plaintiff did misjudge the distance if We take the remainder of his testimony, that is, that the right wheel of defendant’s car had just left the pavement and that he (plaintiff) had only five feet more to travel to be in the clear. The minimum speed fixed for plaintiff’s car was five miles per hour and, if defendant made sixty yards before plaintiff could make five feet, it would be necessary for defendant to have been traveling more than thirty times as fast as plaintiff was traveling, which would be more than 150 miles per hour— an impossible feat for a Nash sedan, such as defendant’s car was. However, if defendant was traveling thirty-five miles per hour, which we find to be a fact from the evidence, he would have had to travel seven times as fast as plaintiff, which would have placed him at the time first seen by plaintiff, at a distance of thirty-five feet from him. If plaintiff was traveling seven miles per hour, which is a fair average of the testimony as to his speed, then defendant would have been within twenty-five feet of him when first discovered by plaintiff. Placing the speed of plaintiff’s car at seven miles per hour and defendant’s speed at thirty-five miles per hour, which we find approximately correct, and figuring the distance traveled by plaintiff from the time he began his turn across the road, we find that at that time defendant was thirty or thirty-five yards away. There was a stretch of straight road, with nothing to obstruct the view of either plaintiff or defendant for a distance of 300 yards. Plaintiff should have seen the oncoming car of defendant and not attempted to make the turn until it had passed.

On the other hand, we find that defendant did not see plaintiff’s car until about the same time that plaintiff saw his car, as he testified that he saw plaintiff had turned in front of him when he was within twenty or twenty-five feet and too late to prevent the accident. That immediately on seeing plaintiff had turned, defendant pulled to the right and off the pavement, intending to take the ditch, when he discovered the cattle gap and attempted to pull back onto the pavement. That he did not have time to put on his brakes and, in fact, did not have time to do anything. Defendant’s wife, who was on the front seat with him, said she only had time to exclaim, “Oh, my God!” and plaintiff’s wife, on the front seat with him, only had time to say, “Oh, God!”

It is plain from our finding of facts that neither the plaintiff nor the defendant were keeping a proper lookout and both were guilty of negligence in that respect; and that the negligence of both was continuous up to the very moment of the accident. If either of them had been keeping a proper lookout, the accident could have been avoided. Plaintiff would not have attempted to cross the road if he had seen defendant’s car, which he could have seen and should have seen. If defendant had been keeping the proper lookout, he would have seen the plaintiff when he started to make the túrn, and at the rate of speed he was traveling, could have stopped his car. The negligence of plaintiff is a bar to his recovery and the negligence of defendant is likewise a bar to his recovery. The district judge sq held, and we fully agree with his decision. It is therefore affirmed, cost of appeal to be paid by appellant.

CULPEPPER, X, recused.


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    No. 4196
    Second Circuit
    CUNNINGHAM ET AL. v. JORDAN DRILLING CO., INC.
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    Shotwell & Brown, of Monroe, attorneys for plaintiffs, appellees.
    Stubbs & Thompson, of Monroe, attorneys for defendant, appellant.
   STEPHENS, J.

The plaintiff, for the benefit of herself as the alleged surviving widow of John' Y. Cunningham, and her three children, one the issue of a former marriage and two the issue of her alleged marriage to Cunningham, brings this suit to recover of the defendant compensation for the death of her husband, who, at the time of his death, was an employee of defendant company, performing services for it in the course of his employment, and earning a weekly wage of $35.

The defendant, in its answer, admitted the death of its employee John Y. Cunningham; that he was performing services for it in the course of his employment at the time he met with the accident resulting in his death; that he was earning the weekly wage alleged; but denied liability for compensation on the ground that Lula Mae Cunningham and John Y. Cunningham were never married; and that therefore she has no right or cause of action against defendant for compensation for herself and/or for the benefit of her children.

The trial of the case resulted in a judgment in favor of plaintiff in the sum of $6,000, payable at the rate of $20 per week for a period of 300 weeks.

The defendant prosecutes this appeal.

The record discloses that the plaintiff was first married to Sam Bryant Watson on July 14, 1924. That marriage was dissolved by a decree of court on January 11, 1926. On February 8, 1926, the plaintiff married C. J. Cantrell in Union county, Arkansas, with whom she lived until some time in June, 1926, at which time she left C. J. Cantrell in El Dorado, Arkansas, and went to West Monroe, Louisiana. She lived in a rooming house there until the latter part of August, 1926. John Y. Cunningham, whom the plaintiff had known in El Dorado, lived at the same rooming house in West Monroe, Louisiana, until about the middle of August, 1926, at ■which time he went to Beaumont, Texas, where he had secured employment. After remaining in Beaumont a week or ten days he requested the plaintiff by letter to join him there and marry him. This the plaintiff testified she did.

She testified on direct examination that John Y. Cunningham met her at the train and took her to the place where he was living; that there he exhibited a piece of paper which he claimed was a marriage certificate, and that in the presence of several witnesses a wedding ceremony was performed and that she and John Y. Cunningham were pronounced man and wife.

On cross-examination she stated that she arrived in Beaumont on the bus instead of the train; that Mr. Cunningham had the minister there and the license in his ¡pocket, and that they were married in the daytime within an hour or two after she arrived. She further testified that she was introduced to the minister by Mr. Cunningham, but did not remember his name, nor to what church he belonged; that she was a Baptist and Mr. Cunningham a Methodist; that there were five or six witnesses to the marriage ceremony, two of which were women; that she did not remember the names of any of them; that on that occasion she did not sign a document, nor does she recall a document having been signed by the minister and the .witnesses; and that she and Mr. Cunningham lived one or two days at the place where the wedding occurred, but that she did not remember the street number of the house.

It will be noted that in the testimony of the plaintiff with reference to the marriage, there is not a single fact disclosed which might be negatived except the existence of the license. The hour of the day and the day of the month are not fixed; the place where the marriage occurred is not determined; neither the name of the celebrant nor his religious faith could be recalled, and the name of no person present was remembered except John Y. Cunningham, and he is dead.

It was admitted that a search had been made of the marriage records in the county in which Beaumont, Texas, is located, and the surrounding counties, and that no record of the issuance of a license or of the marriage qf the plaintiff to J. Y. Cunningham could be found.

After leaving Beaumont the plaintiff and J. Y. Cunningham lived together openly as man and wife, according to her testimony, in Alexandria, Louisiana, New Orleans, Louisiana, Pleasant Hill, Louisiana, Tullos, Louisiana, El Dorado, Arkansas, and Monroe, Louisiana. For more than half of the four years that elapsed between the alleged marriage and the death of J. Y. Cunningham they lived together in the last-named place. They held themselves out to the public as man and wife and the two children which were born to them were held out to the community as their own, and recognized as such.

The legal ¡presumption arising from their conduct in this respect is that they were married and their children legitimate, but that presumption is by no means conclusive. It may be rebutted. If a man and a woman lived together publicly and openly for many years as man and wife in one community, reared and educated their children, held themselves out to the world as lawfully married and their children their legal offspring, and the community consistently accepted them as lawfully married and their children legitimate, a strong presumption arises that a marriage between them actually occurred, and the presumption thus created is difficult to destroy with rebutting evidence.

But, if a man and a woman, as in this case, lived together openly and publicly as man and wife for not more than four years and two months, and for not more than two years and six months in the community, and sufficient time did not elapse in which to rear and educate their children, even though they held themselves out to the world- as lawfully married and their children their lawful offspring, the presumption thereby created that they were in fact married is weak and will yield readily to rebutting evidence.

The testimony of the plaintiff relating to her alleged marriage merely serves to strongly suggest that it did not in fact take place. It is almost inconceivable that after the lapse of less than five years she could remember no fact or circumstance in connection with so important an event in her life that could be corroborated if the celebration did in fact take place. No written evidence of her marriage or that a license had been procured for that purpose could be produced. This latter circumstance should be considered, particularly in view of the improbability of Mr. Cunningham having secured a license to marry at any distant point from Beaumont, Texas, where the marriage is alleged to have been celebrated.

It was stated by the Supreme Court in the case of Oliphant v. Louisiana Long Leaf Lumber Company, 163 La. 606, 112 So. 500, 502:

“Of course, the fact that one seeking to establish a marriage does not produce written evidence showing its celebration is a circumstance to be considered in connection with other circumstances in the case in deciding whether or not the marriage was in fact celebrated.”

At the time of the alleged marriage in question, the plaintiff had not been divorced from C. J. Cantrell, and she was admittedly aware that a legal marriage with J. Y. Cunningham could not be consummated. She assumes the position that she was in good faith in marrying J. Y. Cunningham because she believed (with no justification for the belief) that C. J. Cantrell had secured a divorce from her.

When these considerations are weighed in connection with the fact that she admitted to the mother and sister of J. Y. Cunningham that she did not marry him, and assigned a good reason for not having done so, the presumption of marriage— never very strong — was completely destroyed.

The admission referred to was made about three weeks prior to the trial of the case in the lower court. The following is quoted from Miss Lillie Cunningham’s testimony:

“A. I asked her the direct question, was she married to my brother, and she said ‘No.’ I asked her this question ‘Why?’ She said T never got a divorce from my second husband, Cantrell.’ ”

On cross-examination, Miss Lillie Cunningham was asked the question whether she had any reason to question her brother’s alleged marriage, to which question she replied:

“I never knew there was a question except what Mr. Cantrell told me.”

Mrs. J. C. Cunningham, mother of J. Y. Cunningham, corroborated the testimony of her daughter, Lillie Cunningham.

As the plaintiff was not in fact married to J. Y. Cunningham, she was neither his legal or putative wife, and recovery in this suit should be denied.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment rejecting plaintiff’s demands.