text:
    No. 13,898
    Orleans
    ROSSVILLE COMMERCIAL ALCOHOL CORP. v. DENNIS SHEEN TRANSFER CO., INC., ET AL.
    (November 30, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Brian & Brian, of New Orleans, attorneys for plaintiff, appellant.
    Milner & Porteous and F. Carter Johnson, Jr., of New Orleans, attorneys for defendants, appellees.
   JANVIER, J.

Plaintiff, an alcohol manufacturing company, appeals from a judgment dismissing, on exception of no cause of action, its suit to recover from defendant, a trucking and draying corporation, and from defendant’s insurers, payment for the damage caused when an overhead pipe line of plaintiff was struck by a large iron boiler, which was being transported on a truck of defendant drayage corporation. The original petition alleges that the pipe line in question had been erected some seventeen years prior to the accident; that it extended from plaintiff’s manufacturing establishment across a public highway at an elevation of twelve and one-half feet above the roadway; that a large sign was placed nearby to warn persons using the highway to be on the lookout for the pipe line; that the boiler, which was being transported on the said truck, extended some thirteen or fourteen feet into the air, and that the proximate cause of the damage to the said pipe line was the carelessness of the driver of the said truck in not noticing either the said pipe line itself or the warning sign referred to.

In the petition, however, is found no allegation to the effect that, at the time of the erection of the pipe line, permission had been secured from the “proper authority,” as required by Revised Statutes, sec. 916, nor does there appear an averment to the effect that a permit has since been obtained from the board of state engineers, as is required by the terms of Act No. 185 of 1928. The pertinent portion of the act of 1928 reads as follows:

“Whoever shall make, on the bank of any river or navigable stream of this State, any work tending to alter the course of the water or increase its rapidity, or make its navigation more difficult; or who shall make on the river bank, or on any highway or bridge, or in other place of public use, without the permission of the Board of State Engineers, any work tending to hinder and embarrass such public use, shall, upon conviction, be compelled to pay the sum of one hundred dollars for each offense; and the court shall further order the nuisance to be removed at the expense of the party convicted.”

Except for two changes, that act is identical with the earlier law, Revised Statutes, sec. 916. These two changes are as follows:

In the earlier law it is required that permission be obtained before the erection of any work which tends to hinder or embarrass the public use of the road, whereas, in the act of 1928 the word “and” is used instead of the word “or” between the word “hinder” and the word “embarrass.” The other change is -that, in the earlier enactment, the permission was required to be obtained from “the proper authority,” whereas, in the later act, it is required that the permission be obtained from the “Board of State Engineers.”

Defendants contend -that it is apparent from the petition itself that the said structure is, to some extent, a hindrance and an embarrassment to the public in the free use of the highway; that the petition fails to disclose that the necessary permission for the construction and maintenance of the line has ever been obtained, and defendants also maintain that the erection and continued existence of the said pipe line is violative of Act No. 240 of 1914, which amends section 3379 of the Revised Statutes so as to read as follows:

“Be it enacted by the General Assembly of the State of Louisiana, that Section 3379 of the Revised Statutes of the State of Louisiana be amended and re-enacted to read as follows:-—
“Article 3379:- — If any person shall erect or cause to be erected any bars across any public roads, or lay any timber thereon or obstruct in any manner the free passage thereof he shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine of not more than One Hundred ($100.00) Dollars, or imprisonment not more than ninety days, or both in the discretion of the court, and he shall further forfeit and pay the sum of Fifty Dollars to be recovered by any person suing for the same and to the use and benefit of the person so suing.”

It is argued that thus the petition itself discloses a violation by petitioner of tho state statutes, which violation, it is alleged, constitutes negligence per se, and prevents recovery, regardless of the fault of the driver of the truck; in other words, that the petition shows contributory negligence, i. e., the violation of the statutes, and that -this contributory negligence bars recovery.

The drayage company’s insurer, also made defendant, excepts on the additional ground that no right of action exists in plaintiff to maintain a direct action against it, the insurer. Plaintiff counters with the charge that, not only do the laws of this state create a right of action directly against the insurer, but that, after the accident, the representatives of the insurer agreed to accept liability for the damage, and instructed plaintiff to have the repair work done and to send the bills therefor to the insurer.

We shall first consider and discuss the question of whether or not the petition alleges facts sufficient to warrant the holding that the failure to obtain the permit referred to bars recovery in any event, and whether or not Act No. 240 of 1914 makes such a pipe line unlawful, regardless of whether or not a permit was secured.

We believe it unnecessary to determine whether, in enacting the statute of 1928, the legislators intended to require that owners of already existing structures should obtain permits for the continued maintenance and use thereof, and we do not deem it necessary to settle the question of whether or not the existence of the structure for seventeen years raises a presumption that permission for its erection and for its continued existence had previously been obtained, because we have reached the conclusion that, even if either, or both, of the said statutes were violated in that no permit was obtained either from the “proper authority,” as required by the first act, when the structure was erected, or from the board of state engineers, as required by the second statute, that failure had no causal connection with the accident' — was not the proximate cause thereof — and therefore would not deprive plaintiff of its right to recover, if that right is otherwise shown to exist.

It is not every wrongful act of a plaintiff which constitutes such contributory negligence as will bar recovery. Only those acts without the occurrence of which the accident would not have taken place are, in the eyes of the law, to be taken into consideration. It may be true that it is negligence per se to violate a law, but, unless the violation results proximately in causing damage, no liability results merely because of the violation.

“* * * The modern rule is that, while the violation of a statute is negligence, yet to entitle the plaintiff seeking to recover damages for an injury sustained, he must show a causal connection between the injury received and the disregard of the statutory prohibition or mandate — that the injury was the proximate result.” Ruling Case Law, vol. 22, sec. 91, p. 206, verbo Proximate Cause.

To operate an automobile without a driver’s license is wrongful, and, technically, is negligence per se, but, if the evidence shows that the automobile was properly operated, liability does not result solely because of the technical violation. In many municipalities it is prohibited by ordinance for trains to block street crossings for more than a prescribed time, but, if train operatives violate such an ordinance and block a crossing longer than is permitted, an automobile driver who runs into the train will, nevertheless, be liable for the resulting damage.

In Michel Bros., Inc., v. Chas. Mallynn, 3 La. App. 69, it was held that there was no causal connection between the wrongful act of another driver in running into a parked car and the fact that the parked car had stopped on the wrong side of the road in violation of law. See, also, Roby v. Peter Graham, Inc., 3 La. App. 521.

In Bellocq v. De Soto Hotel Company, No. 8567 Orleans Appeal, unreported [see Louisiana and Southern Digest], we find a case in which a mechanic working on an automobile in a city street was struck by a window screen which fell from one of the windows of the De Soto Hotel. A city ordinance prohibited making repairs to automobiles in city streets. The court held that there was no causal connection between the violation of the ordinance and the ultimate damage. To the same effect see Central Glass Company v. Heiderich, 6 Orleans Appeal 336; Stout v. Lewis, 11 La. App. 503, 123 So. 346.

It cannot reasonably be argued that the ‘‘proper authority,” whether it was the police jury or the board of engineers, would not have given the permit, had it been requested, because the continued existence of the structure for seventeen years, without protest and without other accident, is conclusive proof of the fact that the elevation was sufficiently great to meet all reasonable requirements. Thus the real fault lay, not in building and maintaining the structure, but solely in failing to secure a permit. There could have been no causal connection between the failure to obtain a permit, which, manifestly, would have been granted, if requested, and such an accident as is here described. The statutes in question, with the exception of the act of 1914, are not absolutely prohibitive, but are, rather, permissive. In other words, they do not provide that under no circumstances shall such a structure be erected, but merely that a permit therefor must be first obtained.

Nor do we feel that by the act of 1914 it was intended to absolutely prohibit such structures, if built sufficiently high above roadways as to permit all reasonably to be expected vehicles to pass, because, if its purpose was to prohibit all such1 structures, regardless of height, and regardless of whether permission of the proper authority had been obtained, then it is plainly irreconcilable with Revised Statutes, sec. 916, and with Act No. 185 of 1928, both of which permit such structures, provided a permit be obtained.

That mere failure to secure permission before undertaking to build structures prohibited except after obtaining a permit does not render the liability of the owner of the structure absolute is shown by a reading of the decision in Seibert v. Mc-Manus & Long, 104 La. 404, 29 So. 108. There a city ordinance prohibited the building of fires except in furnaces constructed in accordance with plans authorized by the city council. A furnace was constructed without the submission of the plans thereof to the council. A fire occurred, and it was sought to hold the owner liable because he had failed to obtain the required permission before erecting the furnace. The court held that it was not shown that there was causal connection between the failure to obtain the permit and the fire.

We experience no difficulty in reconciling with the views we have expressed the case of Anger et al. v. Al. G. Barnes Amusement Co., 183 Wis. 272, 197 N. W. 707, 708, on which counsel for exceptors place much reliance. There a large clock was erected on a sidewalk in Oshkosh, Wis. The dial “projected about one foot into the space above the street,” and the pillar supporting the dial was only about six to eight feet high. The clock was struck and damaged by a wagon loaded with lumber, and the owners of the clock sought to recover the amount of the loss sustained. The court, in discussing the point now under consideration, said:

“There is a plain, causal connection between the position in which the dial of the clock was maintained over the public highway and the injury resulting to it by reason of defendant’s use of the highway. * * *”

But we believe that there can be no doubt that, regardless of ordinance, it is negligence to maintain an obstruction only six or eight feet above a street, particularly when the obstruction is so erected that the fact that it extends into the space over the street may not be readily noticeable. Many vehicles are six to eight feet high. Pew are as high as twelve and one-half feet. We can readily conceive that a permit to erect an obstruction only six or eight feet high above a city street would have been refused, but we find it difficult to believe that any objection would have been found to the placing of one twelve and one-half feet over a country road. The clock, only six or eight feet above the street, was an obstruction which was dangerous per se, regardless of whether a permit for its erection had been obtained, whereas the obstruction with which we are now concerned was not malum in se, but merely unlawful because not affirmatively permitted. The petition, then, does not on its face show such contributory negligence as would bar recovery, and therefore a cause of action is stated against the drayage company.

In the original petition, the right to maintain the suit directly against the insurance company, which, it was asserted, had issued a liability policy to the dray-age company, was alleged to result from the operation of Act No. 55 of 1930, which statute is an amendment of Act No. 253 of 1918. The act of 1930, inter alia, provides that:

“* * * That, after the passage of this act, it shall be illegal for any company to issue any policy against liability unless it contains a provision to the effect that the insolvency or bankruptcy of the assured shall not release the company from the payment of damages for injury sustained or loss, occasioned during the life of the policy, and any judgment which may be rendered against the assured, for which the insurer is liable, which shall have become executory, shall be deemed prima facie evidence of the insolvency of the assured, and an action may thereafter be maintained within the terms and limits, of the policy by the injured person or his or her heirs against the insurer company. Provided further that the injured person of his or her heirs, at their option, shall have a right of direct action against the insurer company within the terms, and limits of the policy, in the parish where the accident or injury occurred, or in the parish where the assured has his domicile, and said action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido. :J: * *>>

In the supplemental petition, the further allegation is made that, after the accident, the representatives, of the insurance company admitted liability on behalf of their company and authorized the making of the repairs, and it is now argued that the suit against the insurance company may be maintained both because of the statute giving the direct right of action and because of the agreement referred to as having been made by the representatives of •the insurance company. The insurance company denies, that the right to a direct action exists, and argues:

(1) That the statute of 1930 is unconstitutional, in that it violates section 16 of article 3 of the Louisiana Constitution of 1921, which reads as follows:

“Every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object.”

(2) That the act of 1930 can have no retroactive effect, and that, since there is no allegation to show that the policy was issued after the promulgation of the act, it follows that the petition fails to show that the act is to be taken into consideration, and that, if the act be not applicable, there is no right to a direct action.

(3) That, if the act be given retroactive effect and be interpreted as writing into all policies in force at the time of its promulgation the provisions permitting a direct action, then the act is violative of article 1, sec. 10, of the Federal Constitution, in that it impairs the obligation of the contract made by the insurance company.

(4) As to the allegations of the second petition to the effect that the representatives of the insurance company admitted liability and authorized the making of the repairs, counsel for the insurance company contend that such admission and authorization cannot be proven because they woúld constitute verbal promises to pay the debts of another (to-wit, the drayage company), oral evidence of such promise being inadmissible under Civil Code, article 2278, reading as follows:

“Parol Evidence Shall Not Be Received: * * *
“3. To prove any promise to pay the debt of a third person. * * *”

(5) That the second'statute is unconstitutional, in that the special purpose — to give direct action even if there is no insolvency — is not germane to the purpose of the original act (Act No. 253 of 1918).

Of course, if the statute is constitutional, and if it is applicable to the facts alleged, then the debt which the representatives. of the insurance company are alleged to have agreed to pay was its own debt, and proof of its. promise to pay its own debt may be made by parol. Let us, then, first determine whether the view of counsel that the act is unconstitutional may be accepted by us.

We will consider the various contentions listed above in irregular order, first devoting ourselves to those numbered (2) and (3), because we feel that these should be considered together.

Not all retroactive statutes are unconstitutional. There is no inhibition against the enactment of a law which applies retrospectively, or to which retrospective effect may be given, provided only that, in giving to such law retrospective effect, the obligation of a contract be not thereby impaired, or vested rights be not thereby interfered with. In a syllabus written by the court in Fontenot v. Young, 128 La. 20, 54 So. 408, 409, the Supreme Court of Louisiana said:

“Retroactive laws may be passed, so long as they do not impair the obligations of contracts or devest vested rights; and, where such a law is passed by competent authority, and the intention that it shall operate retroactively is clearly expressed, it becomes the duty of the courts to construe and apply it according to such intention.”

Matters affecting merely the remedy or the method of procedure have many times been the subject of retrospective legislation, and, with great unanimity, the courts have held that such legislation is not violative of the article of the Federal Constitution which we are now considering, and that such legislation does not impair the obligation of contracts. Monteleone v. Seaboard F. & M. Ins. Co., 7 Orleans App. 247, affirmed on writ of certiorari granted by the Supreme Court, 126 La. 807, 52 So. 1032; Sturges v. Crowninshield, 4 Wheat. 200, 4 L. Ed. 529; Fithian v. Centanni, 159 La. 831, 106 So. 321. Likewise is it found that:

“The rule that the terms of a statute or constitution are not to he interpreted as having a retrospective or retroactive operation, unless, the language used plainly conveys that intention and is susceptible of no other interpretation, finds no application to remedial statutes or to the remedial provisions of organic laws. Remedial laws are an exception to the general rule, and may have retroactive or retrospective force.” Cassard v. Tracy (Cassard v. Zacharie), 52 La. Ann. 835, 855, 27 So. 368, 377, 49 L. R. A. 272.

Here we feel that no substantial right of the insurer would be interfered with by giving to the act of 1930 retrospective effect to such extent as to hold that, into all policies in force at the time of its enactment, there was by the said statute written the terms thereof.

By the earlier act of 1918, in case of insolvency of the insured, the injured party was given the right to a direct action against the insurer, so that already, by the 1918 act, the insured was deprived of the right to shield itself behind an insolvent principal. As the situation stood at the time of the adoption of the act of 1930, an insurer had no technical defense left, and its obligation was contingent upon one thing only, the liability of the principal. It is. and was of no substantial importance to an insurer that a suit must first be brought against its principal. It has and had no vested interest in the right to be sued only by its principal. Its obligation to pay in the event of damage caused by its principal cannot be said to be impaired by the fact that payment may be demanded directly by the injured party, instead of indirectly through the insured. We feel that to give retrospective effect to the statute of 1930 would not have the effect of impairing the obligation of the insurance agreement, and we .therefore hold that it is immaterial that in the petitions it is not made to appear that the policy in question was issued after the enactment of the statute of 1930. Whether written before or after that statute was passed, it is. affected by it.

Our conviction in this regard is strengthened by a reading of the decision rendered in Monteleone v. Seaboard F. & M. Ins. Co., supra, in which case it was sought to make applicable to insurance policies already in existence the provisions of Act No. 168 of 1908. Under that statute, inter alia, it was. required that insurance companies should settle losses within sixty days from receipt of proofs of loss, and it was further provided that:

“* * * Should the company fail to pay, within said time the amount due the insured under the policy after demand made therefor, such company shall be liable to pay the holder or holders of such policy in addition to the amount of the loss, 12 per cent damages on the total amount of the loss as may be determined by a court of competent jurisdiction together with all reasonable attorney’s fees for the prosecution and collection of such' loss. * * *” Section 3.

It was contended that that provision of the statute could not apply to policies already in existence, as to permit such application would impair the obligation of the existing contract, but the court said:

“The right of the Legislature to enact statutes of this character may not be disputed; if they are remedial and effect the enforcement only and not the substance of the contract, they constitute a valid exercise of legislative authority and are a declaration of the public policy of the State.”

After reviewing the matter on writ of certiorari, the Supreme Court said (126 La. 814, 52 So. 1032, 1035):

“Defendant urges that the provisions of Act No. 168 apply only to policies of insurance which issued subsequently to the going into effect of the act; that is, to policies which issued after July, 1908.
“We see no good reason for .this contention. Insurance companies which had issued policies prior to July and the holders of such policies were notified by that act as to what would be required from that date forward in respect to the policies in which they were respectively interested.”

That reasoning is applicable here. By the act of 1930 insurance companies and holders of policies were notified that thereafter injured persons might bring direct actions against the insurers of the parties alleged to be responsible. No substantive or vested rights were thereby taken from the insurers. Their liability remained contingent and dependent upon some proof of fault as was required before the passage of the act.

Nor can exceptor derive comfort from the objections, which we will also discuss together, numbered (1) and (5) to the effect that the statute violates the Constitution of Louisiana, in that it has more than one object, and in that its object is not expressed in the title, and in that the amending act of 1928 is not germane to the original act of 1918.

We feel that the purpose of both statutes was to guarantee to an injured party his right to recover from the insurer of a person liable to him. There was only one object in both statutes. This object is clearly expressed in both statutes, and in the latter the title is amended and reenacted.

' “This court has * * * held that the title of an act which states the object to be to amend and re-enact a section of the Revised Statutes, only the number of which is given, expresses, its object within constitutional requirements” — citing numerous authorities. State v. Land, 131 La. 611, 613, 59 So. 1007, 1008.

“We have ourselves recently held, in the case of Allopathic State Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809, that it is a sufficient compliance with the constitutional requirement of the title, if the title indicates the general purposes of the law, without specifying in detail each particular provision of the law.” Compagnie Francaise, etc., v. Board of Health, 51 La. Ann. 657, 25 So. 591, 596, 56 L. R. A. 795, 72 Am. St. Rep. 458.

But exceptors say that the subject-matter of the second statute is not germane to that contained in the first, and therefore it was improper to attempt to amend by legislation on an unrelated subject.

We feel that the subject-matter of the two acts is sufficiently related to permit amendment of one by the other. .Both, as we have said, have for their object the protection of the right of an injured party to recover from the insurer of the party at fault.

Objection 4, to the effect that the alleged promise to pay was not in writing, and that, therefore, no oral evidence thereof may be introduced, is without force, in 'view of the fact that we have held the act of 1930 to be entirely constitutional and applicable, for, by that statute, the debt which originally may have been the debt of a third party has been made the debt of the insurer, and oral proof of promises to pay may be availed of.

For these reasons, it is ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, that the exceptions be, and they hereby are, overruled, and that the matter be remanded to the district court for further proceedings according to law and not inconsistent with the views herein expressed.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,788
    Orleans
    COLLINS PIANO CO., INC., v. ZIEGELER
    (December 14, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Sanders, Baldwin, Viosca & Haspel and L. A. Molony, of New Orleans, attorneys for plaintiff, appellee.
    Theodore Cotonio, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit on a written contract dated March 3, 1929, to recover a balance of $193.10 said to be due on the purchase price of a Victor combination radio and victrola, which plaintiff alleges was sold and delivered to the defendant for the sum of $347.50.

The suit was filed on December 23, 1930, and, on January 7, 1931, defendant, on motion, secured an order from the judge requiring the plaintiff to furnish a $25 cost bond.

On January 9, 1931, defendant filed an answer admitting that he signed the contract, but averring that he signed it through error, because the instrument was not what the plaintiff represented it to be, and further defended on the ground that the machine was defective, because it was incapable of producing sufficient sound volume and did not give the tone quality as represented.

When the case was called for trial on the merits on February 18, 1931, defendant objected to the case being tried on the ground that the plaintiff had failed to comply with the order of .the court to furnish a cost bond.

Counsel for plaintiff urged that the case be tried, first, because the order directed plaintiff to furnish the bond within five days after the plaintiff was notified thereof and that it had never received any such notification, and, second, on the ground that issue was joined on the merits by the defendant filing his answer, in which he did not reserve his rights and, hence, waived them.

The court overruled the defendant’s objection, heard the case on the merits and rendered judgment for the plaintiff as prayed for, but ordered plaintiff to furnish a cost bond the following day, in obedience to which order the plaintiff properly filed the bond. The defendant has appealed.

Counsel for defendant first contends that, having duly filed a motion for the cost bond, which the court ordered plaintiff to file, and as ¡plaintiff failed to file the bond and defendant timely objected to the court hearing the case on its merits, no legal proceeding could be conducted Until the plaintiff complied with the order to furnish the cost bond under the provisions of section 4 of Act No. 136 of 1880. The pertinent portion of that section of the act reads:

“* * * That the defendant in any cause or proceeding shall have the right to require the plaintiff or party prosecuting the same to give bond or other security, in such amount as may be fixed by the court, to secure the repayment of final termination of the cause of all costs expended by the defendant therein. That the order requiring such bond or security for costs shall issue ex parte on the application of the party, without costs, and no further proceeding shall be had in such cause until such bond or security has been furnished.”

Now the order of the court directing the defendant to furnish bond reads as follows:

“On motion of defendant, F. J. Ziegeler, Theodore Cotonio of counsel.
“It is ordered by the court that plaintiff do furnish bond or other security for costs in the sum of $25.00 within five days from the notification hereof and in default of plaintiff’s so doing that this suit stand dismissed.”

The record conclusively shows that plaintiff was never notified of this order, or served with a copy of it, and first learned of it on the day of trial.

While the language of section 4 of the act does not specifically provide that notice of the order requiring the furnishing of a cost bond, or that a copy thereof, shall be served upon the plaintiff, nevertheless, such a notice or service of a copy of the order is impliedly contemplated. The court, under the last-quoted- sentence of the section has the right to fix the delay within which the bond or security shall be furnished, and certainly, since it is an ex parte order, it would be most unreasonable and arbitrary to say that the legislature did not intend that the plaintiff should have some notice of the existence of such an order, particularly since the judge has discretion in fixing the time within which the bond or security is to be furnished. In the case of Glain v. Sparandeo, 119 La. 339, 343, 44 So. 120, 121, the Supreme Court said:

“Section 4 of Act No. 136, p. 190, of 1880, entitling defendant to require ‘bond or other security’ for costs, is not confined in its application to one bond to be given at the inception of the litigation, but may be invoked, from time to time, as occasion may require. In the instant case, however, the second order upon the subject was not served on plaintiff, or at his domicile, but on his attorney; and, in the absence of proof of the authority of the attorney in the premises, and in view of the fact that the second bond was furnished before the day fixed for the hearing of the rule to dismiss, we are of opinion that the rule was ¡properly discharged.”

It is to be noted that the Supreme Court, in using the language “In the instant case, however, the second order upon the subject was not served on plaintiff, or at his domicile, but on his attorney,” clearly indicates that that court considered that service of the order or notice thereof was necessary before the plaintiff’s rights could be affected.

We conclude that, since the order specifically provided that the plaintiff should have five days from notification within which to furnish the bond, and, as the language of section 4 of the act of 1880 impliedly requires notification of the order, or service of a copy thereof on the plaintiff, that the first contention of the plaintiff is without merit.

Counsel for defendant strenuously insists that we should remand the case because he objected to the court trying the case on the merits until the bond was furnished. Prom the record it appears that the defendant went to court prepared to try the case on its merits. It was only when the case was called for trial that his attorney learned that the cost bond had not been filed. Counsel for defendant does not contend that his client’s rights were in any way prejudiced by the court ordering the case to be tried. He does not point out any disadvantage his client suffered as a result of taking the case up at that time. It is not shown that if we were to remand the case that additional' evidence would be produced by the defendant throwing additional light upon the matter in controversy. In view of these circumstances we have decided to decline the request to remand the case.

Passing to the merits of the case, it appears that the instrument was purchased on March 3, 1929, and payments were made regularly until September 13, 1929. The defendant has retained possession of the instrument and continues to use it. Defendant and his witnesses, admit that they do not know anything about the radio, and his only complaint is that there was a humming noise. There is not any lay or expert testimony showing that there was any defect in the instrument or that the humming was caused by any defect in the machine either at the time it was sold or subsequently. The case was feebly contested in this court on the merits and, as only an issue of fact is involved, we believe that the record amply justifies the finding of the trial court.

Por the reasons assigned the judgment is affirmed.


text:
    No. 13,768
    Orleans
    CHAMBERS v. VEGA
    (November 30, 1931. Opinion and Decree.)
    (December 14, 1931. Rehearing Refused.)

      I. W. Rosenthal and Thomas J. Dobbins, of New Orleans, attorneys for plaintiff, appellant.
    R. A. Tichenor, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

The plaintiff sues defendant on a written contract for rental of a service automobile battery. He alleges that the agreement was entered into on July 18, 1928, for a rental of 25 cents per day, until the battery was returned, and claims the sum of $172 for use of the battery for 688 days. He also reserves the right to sue for additional rent accruing subsequent to the filing of this suit and for reasonable attorney’s fees.

Defendant filed practically a general denial, denying any recollection of having signed the contract and averring that he had recommended a Mr. Werner to the plaintiff as a customer and that the battery had been installed on Mr. Werner’s car, and, therefore, defendant was not liable, as he was merely acting as the agent for Werner, of which fact plaintiff was apprised; and, in the alternative, pleaded that he, defendant, should not be held for rent in excess of the value of the battery, which he appraised at the sum of $10.

There was judgment in favor of plaintiff for the sum of $35, the court allowing $15 for rental covering a period of 60 days and $20 as the value of the unreturned battery.

Plaintiff has appealed and contends that he is entitled to a judgment as prayed for in the petition. Defendant has answeréd the appeal asking that the judgment be amended by disallowing the sum of $20 for the battery.

The record shows that the defendant was formerly in the battery business and that A. A. Werner, a former customer, came to defendant for the purpose of renting an automobile service battery. Defendant and Mr. Werner drove the Werner car to the. plaintiff’s place of business and a service battery was installed in the automobile, the defendant signing an agreement containing .the following stipulation:

“RENTAL AGREEMENT
“July 18, 1928.
“The battery rented is the property of the above service station for the use of which I agree to pay 25 cents a day from date until its return to the said service station and to return same on demand.
“If I should fail to do so the said service station is authorized to take possession of the said battery without notice and I agree to, pay all costs incurred for attorney’s fees, waiving all claims for damages against the said service station.
“(Signed) A. Vega.”

It appears that it was the custom of plaintiff to send monthly bills for rent due on service batteries, and one month after the battery was rented the defendant admits receiving a statement of the amount of rent due. He then telephoned the plaintiff and informed him that Mr. Werner was the one who really rented the battery and not himself, and that plaintiff could obtain payment from Mr. Werner. Plaintiff attempted to reach Mr. Werner unsuccessfully at first and then wrote him a letter demanding payment for the rent due, but Werner failed to comply with the request. After repeated unsuccessful attempts during the following month to collect the rent, the plaintiff and his employee, Mr. Wilson, testified that demand was made for the return of the battery on both defendant and Werner, but that they never complied therewith. Neither Werner nor the defendant ever paid the rental charges, or returned the battery.

It is clear that the contract sued uipon is a lease of a thing. See R. C. C., articles 2669, 2670, 2674, 2676, 2678.

Under the plain provisions of the contract it was the defendant’s duty to pay a rental charge of 25 cents per day for the battery from the date of the contract until its return to the plaintiff, or until the plaintiff demanded its return. Upon the failure of defendant to comply with this request, or demand, the plaintiff was authorized to take possession of the battery. This demand for the return and possession of the battery was made by the plaintiff and his employee, Wilson, about 60 days after the contract was entered into. Therefore, the plaintiff is entitled to the rental charge up to that time, because the demand for the return of the leased thing under the express provisions of the contract of hire or lease terminated the lease. Rev. Civ. Code, art. 2727. Consequently, plaintiff could not charge any further rental, since he elected to terminate the lease in accordance with its provisions.

Now, upon the termination of the lease it was the duty and obligation of the lessee, defendant, to return the battery, and, upon his failure to dq so, he was obligated to pay damages or the value of the battery. Rev. Civ. Code, articles 2720, 2669, 2670, 1926, 1930.

While it is true that the plaintiff did not sue for damages, or for the value of the battery, nevertheless the defendant introduced evidence both by his own witnesses and by cross-examination of the plaintiff that the battery was worth between $18 and $25 at the time it was rented. Therefore the pleadings were enlarged so as to give the plaintiff the right to recover this item, particularly since the plaintiff ¡prays for all equitable and general relief. Abadie v. Gluck’s Restaurant Corp., 168 La. 242, 247, 121 So. 757; Kinder v. Scharff et al., 125 La. 594, 51 So. 654; Legier v. Braughn, 123 La. 463, 466, 49 So. 22.

But, assuming that the lease was not terminated by the demand of the plaintiff for the return of the battery, the record shows, as was also found by our learned brother below, that the battery was lost. Plaintiff testified that the battery was never returned; defendant testified that Werner had possession of it at all times; and Werner testified that some one came to his residence and got the battery, but he was unable to say that it was the plaintiff’s employee who did so. Article 2728 of the Revised Civil Code reads:

“Termination of Lease — 2. By Loss of Thing. It is also dissolved by the loss of the thing leased.”

Therefore, as the battery was lost about sixty days after the contract was entered into, and plaintiff knew this, the lease was terminated by that fact, and the plaintiff was entitled to recover damages or the value of the thing leased, but not any additional rent thereafter. The trial court allowed $15 for the rental and $20 for the value of the ' battery, or a total of $35, which we believe fair and reasonable under the circumstances. But the trial judge failed to grant plaintiff’s prayer for reservation of his right to sue for attorney’s fees.

For the reasons assigned, the judgment appealed from is amended by reserving plaintiff’s right to sue for a reasonable attorney’s fee, and, as thus amended, the judgment is affirmed.


author: WESTERFIELD, J.

text:
    No. 13,797
    Orleans
    CARNELIOUS v. LOUISIANA INDUSTRIAL LIFE INS. CO.
    (December 14, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Normann, McMahon & Breckwoldt, of New Orleans, attorneys for plaintiff, appellee.
    Puneky & Barrios and James J. Landry, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit on an industrial life and accident insurance policy. The plaintiff, Hesikiah Carnelious, a longshoreman, suffered an accidental injury to his right leg on Februry 2, 1930. His leg was amputated on June 1, 1930. The amputation of the leg is alleged to have totally disabled plaintiff, and it is claimed that he is entitled to twenty times the amount of the weekly premium of $.25, or $5 a week, for 100 weeks; that, at the time of the filing of the suit, 35 weeks were due, totaling $175, upon which a credit of $105 was acknowledged, leaving a balance of $70, for which amount judgment is asked, plus $5 a week from September 30, 1930, the date of the filing of the suit, until the rendition of judgment, together with reservation of his right to sue for additional weekly benefits, as the same may become due. As originally filed, a penalty of double the amount due, plus attorney’s fees, was prayed for, because of the delayed payment, under the policy, in accordance with Act No. 310 of 1910.

There was judgment below in plaintiff’s favor, as prayed for, with the exception of the penalties. From this, judgment defendant has appealed. No modification of the judgment with reference to penalties is asked for by plaintiff’s counsel, for the reason that, since the institution of the suit, plaintiff has died, and it is admitted that his succession representative is not entitled to claim the penalties.

Defendant admits the issuance of the policy, the injury, and amputation of plaintiff’s leg, but denies that he was permanently and totally disabled within the meaning of the policy. It avers that plaintiff was paid more than he was entitled to at the time this suit was brought.

Plaintiff relies upon the following provisions of the policy:

“If through accident the insured sustains an injury which directly and independently of all other causes, results in entire and continuous disablement of the insured within sixty days from the date of such accident and which shall wholly and permar nently disable the insured from performing any and every kind of duty pertaining to his trade or occupation, then and in that event the Company will, in lieu of all other benefits, pay to the insured for a period not exceeding one hundred weeks a weekly indemnity equalling twenty times the amount of the premium payable hereunder totalling the amount stated in the schedule below.”

The position of plaintiff with regard to the totality of the disability is that his occupation, that of longshoreman, was such as to preclude his further pursuit of it with only one leg; that a longshoreman needs two legs in order to carry on. Sizemore v. Kirkland Timber Co., 15 La. App. 229, 131 So. 501, 502; Jennings v. Brotherhood Accident Co., 44 Colo. 68, 96 P. 982, 18 L. R. A. (N. S.) 109, 130 Am. St. Rep. 109; Taylor v. Southern States Life Ins. Co., 106 S. C. 356, 91 S. E. 326, L. R. A. 1917C, 910. In the latter case it was held that “total disability,” as used in accident policies, means “generally such disability as prevents the insured from following his usual vocation in which he was engaged when he was injured.” We conclude on this point that a longshoreman who loses one leg is totally disabled within the meaning of the policy.

But defendant says that plaintiff cannot claim under the quoted paragraph, because he has not alleged, nor proved, that the loss of the leg on June 1st was due to the accident which he suffered on February 2d, and that certainly the disability was not “immediate or continuous after the injury” and not the direct cause “independent of all other causes” of his disablement. He contends that, if anything is due plaintiff, it is due him under another clause of the policy, where ten times the amount of the premium, or $2.50 a week in this case, would be due, which clause reads as follows :

“Should such accident result in the loss of one hand above the wrist or of one foot above the ankle, then and in that event the company will consider such loss as constituting partial disability in the sense. of this clause and will pay to the insured, in lieu of all other benefits under this policy, for a period not exceeding one hundred (100) weeks, a weekly indemnity equaling ten (10) times the amount.of the premium payable hereunder totaling the amount stated in the schedule below.”

Defendant voluntarily paid plaintiff the sum of $105, the amount which would be due plaintiff at $5 a week for the 21 weeks, which had elapsed during the period in which these premiums were paid, and thus it appears that the defendant itself at one time believed plaintiff entitled to the benefits of the provision relied on. However that may be, we will first discuss the total disability clause from the standpoint of whether plaintiff’s injury was the direct and independent cause of his disability. We have already held that he was totally disabled.

Plaintiff was discharged from the Charity Hospital in the city of New Orleans on February 11, 1930, having been admitted to that institution on February 3, 1930, the day after his accident, and re-admitted on the 24th of April, 1930. His leg was removed on June 1, 1930. The argument is that, whatever was the matter with him when he entered the hospital, he was cured on February 11, 1930, and that his re-entry and the subsequent removal of his leg was due to another and a different cause, syphilis being the suspected agency; that in any event his accident was not the sole cause, as required by the policy. This defense was not raised in the answer, and it is objected that it is a special defense and should be specially pleaded. It seems to us that, since plaintiff bases his suit upon a contract of insurance, it is necessary for him to show that it comes within some provision of the policy entitling him to recover. The X-ray diagnosis of plaintiff’s leg showed a comminuted fracture of the tibia, near the junction of the upper and middle thirds, also a fracture of the neck of the fibula. Plaintiff was discharged from the hospital on February 11, 1930. The reports of the hospital indicate that on February 18th, a week after his discharge, the cast was removed from his leg; that on March 31, 1930, he reported to the hospital and was instructed to return in two weeks; that he was there again on April 7th and on April 9th, and on this latter date he complained of pain at the site of the fracture. On April 17th, the cast on his leg was stripped to permit of its being dressed. He also reported at the hospital on April 16th, 21st, and 25th to have his wound dressed. On April 25th a skin infection is noted in the record. The cause of the operation, which was performed on June 1st, is stated to be the result of a “comminuted fracture of the right tibia and fibula with extensive skin infection of the leg.” The plaintiff was under the care of the hospital as late as August 8, 1930. It therefore appears to us that plaintiff’s injury was continuous. During one of his visits to the hospital he was subjected to a Wasserman test, and it was reported as “strongly positive,” which we understand to be accepted by the medical profession as evidence of the presence of syphilitic infection. Nothing more than the bare statement of the result of the Wasserman test appears in the record, and there is therefore nothing to indicate the extent, if any, to which this infliction contributed to the necessity for amputation. But the argument is made that, if it had anything whatever to do with the situation, no recovery can be had because the accident must be the sole and independent cause of the disability. Our understanding of the meaning of this clause, as interpreted by the courts, generally, is that it suffices if the cause of injury or death be the efficient or predominant cause. The phrase “resulting directly, independently and exclusively in death,” refers to the efficient, or, as some courts speak of it, the predominant cause of death at the time it occurs. Illinois Commercial Men’s Ass’n v. Parks (C. C. A.) 179 F. 794.

The total loss of sight consequent upon injury to an eye, caused by running into an obstacle in the nighttime, constitutes a loss within the policy, even though a prior diseased condition of the eye is set up in defense. Travelers’ Ins. Co. v. McInerney (Ky.) 119 S. W. 171.

In the case of Fetter v. Fid. & Cas. Co., 174 Mo. 256, 73 S. W. 592, 595, 61 L. R. A. 459, 97 Am. St. Rep. 560, the injury complained of was a rupture of the right kidney, the lower part of which was found to be cancerous. In disposing of the, contention. of the defendant that the rupture was not the sole cause of the death of the insured, the court said:

“The contention of the defendant is that the accident would not have resulted in the rupture if the cancer had not been there. * * *
“On this, testimony the defendant says that the death was not the result of the accident ‘independent of all other causes.’
“If we should give to those qualifying words of the policy the meaning that is now claimed by defendant they were intended to have, there would he scarcely any limit to their nullifying influence.
“If, therefore, there could be discovered in a man’s body, after his death, any condition, though unsuspected, that, under scientific tests, would render him more amenable to accidents, or less capable of resisting their influence, the policy would not cover the case.”

In Driskell v. U. S. Health & Accident Ins. Co., 117 Mo. App. 362, 93 S. W. 880, 882, the court said:

“We think the only reasonable interpretation to be placed upon this clause is to say that the injury must stand out as the predominant factor in the production of the result, and not that it must have beep so virulent in character as necessarily and inevitably to have produced that result, regardless of all other conditions and circumstances.
“* * * If, under the peculiar * * * condition of health of an individual upon whom it is inflicted, such injury appears as. the active, efficient cause that sets in motion agencies that result in death, without the intervention of any other independent force, then it should be regarded as the sole and proximate cause of death.
“The fact that the physical infirmity of the victim may be a necessary condition to the result does not deprive the injury of its distinction as the sole producing cause.
“In such case, disease and low vitality do not rise to the dignity of concurring causes, but, in having deprived nature of her normal power of resistance to attack, appear rather as the passive allies of the agencies set in motion by the injury.”

In Fid. & Cas. Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 997, 44 L. R. A. (N. S.) 493, it was held:

“If the injury, by aggravating the disease, accelerated the death of the assured, then it resulted ‘directly, independently and exclusively of all other causes.’
“In other words, if death would not have occurred when it did but for the injury resulting from the accident, it was the direct, independent, and exclusive cause of death at that time, even though the death was hastened by the diseased condition.”

In Freeman v. Mercantile Mutual Accident Ass’n, 156 Mass. 351, 30 N. E. 1013, 1014, 17 L. R. A. 753, it was held:

“The law will not go further back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause of causes beyond seeking the efficient, predominant cause, which, following it no further than those consequences that might have been anticipated as not unlikely to result from it, has. produced the effect.”

The case of Frerichs v. London & Lancashire Indemnity Co. of America, 169 La. 182, 124 So. 821, we consider not in point for the reason that in that case it appears that the predominant cause was not the traumatic injury but the arteriosclerosis. In the case of Kirkwood v. London & Lancashire Ind. Co. of America, 14 La. App. 438, 131 So. 703, the cause of death was an aneurism of the thoracic aorta, which may or may not have been aggravated by the fall. In this case also the efficient predominant cause of death was the disease and not the traumatic injury.

Our conclusion is that plaintiff is entitled to total disability under the clause of the policy relied on, and consequently, for the reasons assigned, the judgment appealed from is affirmed.


author: McGREGOR, J.

text:
    No. 4044
    Second Circuit
    DOUSAY v. HILLYER-EDWARDS-FULLER, INC.
    (December 9, 1931. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   McGREGOR, J.

On or about January 22, 1929, James R. Dousay, the plaintiff, was injured while in the employ of the defendant, Hillyer-Edwards-Fuller, Inc., at Glenmora, in Rapides parish. Plaintiff was engaged with his co-laborer in sawing down trees and converting them into logs for sawmill purposes. While he was thus engaged on the day named, suddenly a large heavy limb from the tree they were sawing broke and fell a distance of over fifty feet, and, as it was falling, struck the plaintiff on his body about the neck, right shoulder, and back, and knocked him to the ground. For a moment or longer he was. unconscious. As soon as possible, the employees of the defendant conveyed the plaintiff to the office of Dr. Archie Taylor, the defendant’s physician in Glenmora. Dr. Taylor made as careful an examination as he could at the time. His diagnosis was that there was a fracture of the right scapula or shoulder blade. For immediate relief, the right arm and shoulder were demobilized by binding securely, and the plaintiff was taken to his home. For several months he remained under the treatment of Dr. Taylor, but was never cured.

In October, 1929, the plaintiff was sent to Alexandria and was examined by Dr. R. O. Simmons and his associates. Being unable to determine the nature or extent of his injuries, these physicians placed him in the Baptist Hospital for several days for observation. An X-ray picture was made of his right arm and shoulder, and the only thing that this picture revealed to these doctors was an exostosis or bony growth on the lower end of the upper third of the right humerus, that portion of the arm that extends from the shoulder to the elbow. This exostosis was removed by a surgical operation, and in the course of time plaintiff was sent home, where -these doctors, thought he would soon recover.

On May 7, 1930, the plaintiff returned to the office of Dr. Simmons and his associates in Alexandria, still complaining that he could not use the right arm at all. These physicians, testified at the trial that at that time they were unable to find anything wrong with him. During all this time and up to August 9, 1930, the defendant paid compensation to the plaintiff at the rate of $15.60 per week. On August 9, 1930, defendant ceased paying this compensation on the theory that the plaintiff had completely recovered from whatever injuries he may have received. As a consequence of the defendant’s failure and refusal to pay any further, the plaintiff filed •this suit on August 21, 1930.

In his. petition, the plaintiff alleges that when the limb struck him, as above related, it fractured or broke the upper bone of his arm, and fractured, bruised, and seriously and permanently injured and impaired the nerves, bones, ligaments, and muscles in his neck, spine, right shoulder, right arm, hand, and other parts of his body, and that the vertebras in and about his neck and shoulders were fractured or dislocated. He alleges further: That as the result of these injuries he cannot raise his right arm to a level or use it in any way; that there is a lack of sensation in his said arm and shoulder; that the grip in his right hand is. greatly impaired; that the said arm and shoulder are of no service to him; and that he has constant pains in and about the place where the said limb struck him in the back.

The defense, as set out in the answer and as developed in the testimony, is that the plaintiff’s injuries, were never serious and of the nature contended for by him; that, whatever those injuries were, he had fully recovered on August 9, 1930; and -that he was a well man on December 15, 1930, the day of the trial, suffering no disability on account of the accident which caused his injuries.

On the trial of the case, plaintiff produced a number of witnesses who testified as to the accident and the injuries received.

(1) Dr. S. C. Barrow, and eminent radiologist of Shreveport, testified that on August 29, 1930, at the request of Dr. O. C. Rigby of Shreveport, he made an X-ray examination of the cervical spine or neck and right shoulder of the plaintiff. He stated that this examination revealed an old fracture of the middle border of the fourth cervical vertebra, with superficial injuries to its anterior lower border. Upon questioning, he stated definitely and positively that the fracture was complete, running downward from within outward, slightly oblique.

(2) Dr. C. H. Potts, a surgeon of Shreveport, testified that he examined the plaintiff on November 7, 1930, and found that he had a complete lack of the use of his right arm and shoulder, and a stiffness of the neck muscles extending down over his shoulder. In the course of his testimony, he said:

“A. Well, in the use of his arms I found that he cannot bring his right hand up to his nipple line in this motion, nor can he abduct away from his side his right arm and hand more than ten degrees. He has tenderness and pain along the cervical vertebrse, especially the third and fourth and fifth, and anesthesia of his lower hand, especially on the right side, the ulna portion on his right side from the elbow down to the finger where sticking and punching him had no appreciable effect on the right hand side, or the inner side of the thumb finger at all. He had no feeling and practically no sensation to heat and cold and sticking him and the use of his hand was practically negligible. He didn’t seem that he could co-ordinate his muscles to grasp with his hand. I asked him to pick up a weight from the floor with his hand and watched him do it and he couldn’t pick it up with his right hand. He shifted it into his hand with his left hand and then brought it up, skidding it up as you would skid up dirt with a shovel.”

In explaining the cause of the lack of sensation in parts of the right hand and arm, and also the complete lack of use and •control of the right arm, Dr. Potts stated that this was due to an injury to the brachial plexus, which is the group of nerves that controls the movements of, and sensation in, -the arm. In explaining just what the brachial plexus is, and how he thought plaintiff’s condition in his hand, arm, shoulder, and neck was caused by the injury to the cervical vertebrae, Dr. Potts says:

“A. The brachial plexus is the nerves that gives him power or locomotion of that arm inside and they come off of the spinal column just below the site of the injury. The site of the injury shows there was a fracture at the fourth cervical vertebra, and the brachial plexus or large nerves which come off of the cervical spine go underneath the arm and supply the upper arm and lower arm and hand are the nerves from that plexus which come off of the fifth, sixth, seventh, and eighth cervical vertebrae. The fracture occurred at the fourth, which explains his inability to rotate his shoulder and substantially all of the muscles across his scapula, so the fracture and laceration of the areas adjoining the fourth cervical vertebra and the cervical nerves come out at that area, and the cervical nerves supply that portion of his back in and around his shoulder.”

In his testimony, the doctor stated that he had made a very thorough examination of the plaintiff, and had used all known devices to discover the condition of his nerves which were affected by the injuries, and that in every case he found positive evidence to substantiate the claims of the plaintiff as to his inability to use his right hand, arm, and shoulder, and as to other conditions in his neck.

(3) Dr. O. C. Rigby, of Shreveport, also testified for the plaintiff, and corroborated Dr. Potts in every respect. In the course of his testimony, he said:

“A. I examined him in my office with Dr. Hargrove on August 20th, 1930. I recently saw him in Dr. Potts’ office, I don’t remember the date, but sometime not many days ago.
“Q. That is when Dr. Potts examined him?
“A. Yes, sir, when Dr. Potts examined him. On August 20th, I examined Mr. Dousay and I found the following: The back of his neck on the right side was tense, complained of pain in the shoulder, and on moving the shoulder it aggravated his pain. "We tried the usual tests like Dr. Potts described, sticking him and pricking him with a pin and using hot and cold. We had him blindfolded — Dr. Hargrove blindfolded him and we pricked him and tested out the nerves as best we could in .that way, and we came to the conclusion from our examination that the cervical plexus and brachial plexus were injured. And we suspected a fracture of the cervical vertebra and referred him to Dr. Barrow for his examination, but I hadn’t been able to see the plate until here this afternoon. I learned from Dr. Barrow however that there was a fracture of the fourth cervical vertebra. The sensation as described by Dr. Potts was just about the same as I would describe it.
“Q. You heard Dr. Potts’ testimony?
“A. Yes, I heard his testimony, in that there was lack of pain or sensation to heat or cold, mostly on the outer border of the arm. His ability to use- his arm was lacking and we tried to test out his grip and things like that, but with no success. About all that a man can say about it is that in these injuries where you have injury to the vertebrae you usually have stiffness of the area adjacent to it, and I think these injuries play a part in keeping him from moving it, and he has. that kind of disability. Dr. Adair had a fractured vertebra and the location of it would not permit him to move his vertebras at all in the region of the back, and as all of us know, he would have to turn all the way around to talk to you if you called his name. Most all back injuries are like that, especially in the cervical vertebrae, and places like that which cause them to have to turn their bodies around to look, because if he turned that disabled member around it wouldn’t be very healthful for it.”

Dr. Rigby stated further that he and Doctors Potts and Hargrove had examined the plaintiff before the X-ray picture was. made by Dr. Barrow, and that they had found that the brachial plexus, as well as the cervical plexus, were both injured to such an extent that there must have been a fracture of some of the cervical vertebrae. It was after this diagnosis that the X-ray examination was made by Dr. Barrow. When this X-ray examination was made, it confirmed their beliefs and diagnosis. It was subsequent to this first examination and diagnosis that Doctors Potts and Rigby made their test of the plaintiff’s arm and hand and discovered the lack of sensation and control, as testified by them.

(4) Dr. J. A. Packer of Alexandria examined the plaintiff, and his testimony corroborates that of the three physicians from Shreveport. This, examination was also made just prior to the trial of the case.

(5) The plaintiff, in testifying in his own behalf, stated: That the limb that fell struck him about his neck, shoulders, and arm; that he has been totally disabled ever since; that he has no use of his right arm and hand, back, or neck; that he can pick up nothing; cannot stoop over; that there is a soreness in the back of his neck all the time; that if he stirs or rides this soreness is worse; and that he has very little sensation left in his. right hand and arm.

(6) D. C. Goodman, a witness for the plaintiff, testified that he had always been a willing worker, but since the accident had been unable to do any work of any consequence.

(7) Henry Bass, a witness for the plaintiff, testified that he had always been a hard worker and worked all the time before he was hurt; but that he had never seen him trying to do anything since.

(8) John Hilton, plaintiff’s, co-worker, at the time of the accident, corroborated the plaintiff’s description of the accident, and testified further that he was a hard worker.

The defendant produced five witnesses at the trial, all of them eminent physicians of Alexandria and Glenmora. Their testimony is unanimous to the effect that the plaintiff was never injured to the extent that he claims, and that at the time of the trial he was fully recovered.

(1) Dr. Archie Taylor of Glenmora was the physician to whom the plaintiff was. carried immediately after the accident occurred. He testified that when the plaintiff was brought to him on January 22, 1929, he diagnosed the injury as a fractured right scapula or shoulder blade, and treated him accordingly. He was of the opinion that this diagnosis was right until an X-ray examination disclosed to him that there had been no fracture there. He does not believe that the X-ray picture made by Dr. Barrow discloses an old fracture. He states, however, that the plaintiff has always complained that he cannot use his right arm and hand and that, so far as he knows, he has never used or raised them since the accident. He admits further that the physical condition of the plaintiff’s two hands indicates that the right hand has been used less than the left.

(2) Dr. R. O. Simmons, a physician and surgeon of Alexandria, testified that the plaintiff was brought to him and his associates for examination in October, 1929. Upon examination, they found an exostosis on the right humerus and removed it, and, after a few days’ treatment, dismissed him and considered him cured. He testified that on the day of the trial he and Drs. Barber, Taylor, and Rand had examined the plaintiff and found the muscles of the right arm a little larger than those of the left, and that they found no atrophy. He stated that he had never examined his neck, but it was, his opinion that .there was no stiffness there. It is his belief that there has never been any fracture in any of the cervical vertebres, and that the X-ray picture made by Dr. Barrow does not reveal any. He states further that he never made any examination of the cervical vertebrae, for the reason that no complaint had been made by plaintiff that would indicate any disturbance there. It is very significant, however, that in the course of his testimony he stated:

“In going through the routine of his. examination, we had a picture made of his arm and shoulder where he was complaining, up to the vertebra, which showed slight radiations of the vertebrae, but not enough to tell of any damage there because of the fact he hadn’t complained of anything wrong there.” (Italics ours.)

(3) Dr. H. O. Barker, a radiologist of Alexandria, testified that he saw nothing in the X-ray picture of Dr. Barrow to indicate a fracture of any cervical ver.tebrse. It is his further testimony that the plaintiff’s trouble is due to arthritis, caused by infections of some kind that had no connection with the injuries received by the plaintiff.

(4) Dr. Paul K. Rand, a radiologist of Alexandria, testified that he and Dr. Barker had tested the nerves of the right hand, arm, and shoulder of the plaintiff in November, 1929, over a year before the trial, and found that his complaint was unfounded. He testified that he found no indication of an old fracture in any of the cervical vertebrae in the X-ray picture made by Dr. Barrow.

(5) Dr. Barker testified that in October, 1929, he assisted in the examination of plaintiff’s nerves, and found no trouble. He admits, however, that he has never seen the plaintiff raise his arm voluntarily.

The trial judge wrote an able and lengthy opinion, and found that the plaintiff had failed to prove his disability, and therefore rejected his demand, and judgment was rendered and signed accordingly. From that judgment, the plaintiff is prosecuting this appeal.

OPINION

This case involves only questions of fact. Plaintiff received his injuries on January 22, 1929, and from .that date until August 9, 1930, he was under medical treatment at the expense of the defendant, and every one must have considered that there was some merit at least in his contentions as to his disability, for he was paid compensation regularly up to .the time when he was dismissed by the physicians of the defendant; that is to say, August 9, 1930.

Aside from all medical testimony, the fact remains and it must be admitted that the plaintiff was seriously injured. Before the accident he was a hard, willing worker. Since the accident, and up to the trial, he had done no work, and was not able to do any. One of the easiest charges to make and the hardest to prove or disprove is that a man is pretending to suffer when he is not. In this case, the' plaintiff swears that he has not worked since the accident, for the reason that he has been unable to do so. He is corroborated in this to a large extent by the fact that he has not been shown by any one to have worked or to be able to work. The company’s physician kept him under treatment from January until October, without giving him any relief. This physician certainly, in the beginning, believed that .the plaintiff had been injured, and believed him when he said he could not use his arm after the injury. He knew that, being struck as he had been by this limb, he must have been severely injured. He therefore decided that the scapula or shoulder blade was broken. Subsequently an X-ray examination disclosed no fracture, but this same X-ray did disclose a very serious exostosis, on the right arm. This was removed, and the plaintiff was dismissed on the theory that this was his only injury. This opinion of the defendant’s physicians evidently was not justified, for the reason that on different occasions thereafter the plaintiff was compelled to report back to them for relief, and on these occasions he continued to complain of the same trouble.

It is to be noted that the defendant’s physicians in Alexandria, in having an X-ray examination made of .the plaintiff, X-rayed only those regions in which they understood the plaintiff was locating pain. It would seem that where a man had been struck with a limb, as this man had been, X-ray examinations should have been made of the entire region of the neck. A man cannot always locate the exact seat of pain, particularly when it is very general. This man’s arm, shoulder, and shoulder blade were X-rayed by the defendant’s physicians, but the neck was. not, for the only assigned reason that he had never complained of it, and had never located any pain there. In his testimony, Dr. R. O. Simmons stated .that:

“We had a picture made of his arm and shoulder where he was complaining up to the vertebra, which showed flight radiations of the vertebrae, but not enough to tell of anything there because of the fact he had not complained of anything wrong there.” (Italics ours.)

If an X-ray examination had been made of all the cervical vertebrae and not just up to them, it is more than likely that a condition would have been revealed that would have explained plaintiff’s trouble, for, when the picture was made just up to that point, a slight radiation was shown. It is to be regretted that these physicians did not follow up this indicated source of trouble by having an X-ray examination of the vertebrae themselves. It would seem to the ordinary laymen that, when a man complains as plaintiff was complaining, all regions where nerves affecting the hand and arm originate should have been examined most carefully. That appears to have been the theory of Dr. Rigby and Dr. Potts of Shreveport in having Dr. Barrow make an X-ray examination of the cervical vertebrae of the plaintiff. They discovered lack of sensation and control in certain portions of .the right hand and arm. They knew that the nerves involved in those regions originated around the fourth, fifth, and sixth cervical vertebrae. They therefore had an X-ray examination made of these. This picture revealed an old fracture of the fourth vertebra. These doctors concluded that, if this limb struck with such terrific force as to fracture this vertebra, the others were bound to have been injured to such an extent as to seriously impair all the nerves emanating therefrom, even though no visible trace may have been left on the bony structure of the vertebra. Their diagnosis was perfect, and Dr. Barrow’s X-ray examination confirmed it in every part.

It is true that two radiologists and other physicians, testifying for the defendant, disagree with Drs. Barrow, Rigby, and Potts, but when an eminent radiologist, such as Dr. Barrow is known to be, makes, an X-ray examination and declares that he finds certain conditions, we are bound to believe him, and, in making this statement, we cast no reflections on the equally eminent physicians and radiologists that disagree with him. The plaintiff’s witnesses all declare that they found certain conditions to exist. They are men that stand high in their profession, and we must believe them. The fact that others, equally as eminent in the same profession, do not see what the doctors testifying for the plaintiff say they saw is. not conclusive, and is not sufficient to disprove the plaintiff’s testimony. It is the difference between positive and negative testimony. One may swear positively that he saw a certain party at a given time and place, while a dozen other men with equal opportunity of observation may swear positively that they did not see him. The positive testimony of the one witness cannot be overcome by the negative testimony of the dozen. And, in addition to this fact, at some time or other in the course of their examination, all these physicians testifying for the defendant practically admit that at the time of the trial they felt that something was wrong with the plaintiff, even though the weight of their testimony is to the effect that the plaintiff is not disabled as he thinks or says he is.

We have the highest regard for all the eminent physicians who have testified in the case on both sides, and certainly the able opinion of the judge of the lower court is entitled to the greatest consideration. It is with regret that we ever disagree with our brethren of the lower court, but after reading all the testimony in this case and reviewing all the facts and circumstances, and after the most careful study and earnest consideration, we have reached the conclusion that the judgment appealed from is erroneous, and should be reversed.

In our opinion, the plaintiff, at the time of the trial, was totally disabled, and, as far as we can determine, this disability will be permanent. It is not a question of confining the injury to a hand or arm or other member. His injury is general, and disabled his entire body. If he should subsequently, recover, the law provides relief for the defendant. As to the compensation to be awarded, we find that the plaintiff was receiving on the average $24 per week. His compensation should be on that basis.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, annulled, reversed, and set aside, and it is further ordered that there be judgment herein in favor of the plaintiff, James R. Dousay, against the defendant, Hillyer-EdVards-Fuller, Incorporated, for the sum of $15.60 per week for a period of four hundred weeks beginning January 22, 1929, with five per cent interest on all past-due weekly payments from their respective maturities, subject to a credit for the amount paid up to and including August 9, 1930; the defendant to pay all the costs of both courts.


author: DREW, J.

text:
    No. 4129
    Second Circuit (Second Division)
    REMINGTON CASH REGISTER CO., INC., v. KERR
    (February 16, 1932. Opinion and Decree.)
    Albert E. Bryson, of Shreveport, attorney for plaintiff, appellant.
    Harry V. Booth, of Shreveport, attorney for defendant, appellee.
   DREW, J.

On September 1, 1929, plaintiff sold to defendant a cash register for the price of $165. At the time, $15 was paid, and the remainder was to be paid in installments, of $10 per month, for a period of fifteen months. Defendant did not pay several of the installments as they fell due, and the present suit was filed on the contract of sale under the clause which made all payments due upon failure to pay any one installment when it became due. Suit was filed on April 12, 1930, and answer was filed on April 18, 1930.

Defendant in answer set up that he was the owner and operator of a barber shop in the city of Shreveport, and employed a number of barbers, who worked for him on a commission basis. That, in order to properly record the business of each barber, it was necessary for a cash register or machine to be used which would record each sale and, in doing so, issue a ticket, which ticket would be identified with a number, as well as disclose the amount of the sale thereon. That he purchased the cash register from plaintiff only after the representative of plaintiff had assured him that it was particularly, adapted, constructed, and built for use in a barber shop, in that said machine would issue a ticket with a serial number and sufficient numbers of identification to represent the barbers employed by him, as well as showing the amount of the particular sale involved, and the totals of the day’s business. Defendant further alleged, in detail, that the said cash register failed in every one of the different instances, as above enumerated, which it had been represented to do, and was worthless to him. He alleged that he had made complaint, and that plaintiff had attempted to fix the machine, without results. Defendant further alleged that he had attempted to get plaintiff to take the cash register and return his contract, without avail. He prayed that plaintiff’s. demands be rejected and, in reconvention, for judgment for the initial payment of $15. The lower court rejected the demands of plaintiff and awarded judgment for defendant on the reconventional demand, as prayed for. Prom this judgment, plaintiff has appealed.

The principal motive for defendant in making the purchase of the cash register was that it should perform the services represented by plaintiff’s representative, that is, record each sale, issue a slip giving the number and price, and also show the totals for the day. The slip issued, by each barber would be kept by him and at the end of the day could be checked against the register by number, amount, and totals. Under articles 2520 and 2529 of the Revised Civil Code, if the cash register failed to perform the service required, it gave rise to a redhibition. Standard Motors Finance Co., Inc., v. Yellow Bayou Gin & Planting Co., 1 La. App. 424; Alex Oil Co. v. Kaplan & Son, 7 La. App. 485; Mansell Hunt Catty Co. v. Elmer Candy Co., 5 La. App. 436.

The evidence is convincing that the cash register utterly failed to do the things it was represented to do, and that it was worthless to defendant. It would issue slips without numbers, without price, sometimes blank, and sometimes not at all. It would cut the slips in half and would often jam. As an instrument to keep a record of the work of each barber, it was worthless. After defendant tried to use it and to have it fixed from time ¡to time for two or three months, he ceased trying to use it, and insisted that plaintiff take it back and return him his obligation. It is unnecessary to review in detail .the evidence of each witness. The lower court found the defense set up by defendant to be well founded, and we agree with the lower court.

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


text:
    No. 4098
    Second Circuit (Second Division)
    PORTER v. LAWRENCE
    (February 16, 1932. Opinion and Decree.)
    Lee & Williams, of Mansfield, attorneys for plaintiff, appellant.
    Craig, Bolin & Magee, of Mansfield, attorneys for defendant, appellee.
   DREW, J.

This is a suit on an open account for fertilizer and other items alleged by plaintiff to have been sold to defendant in 1929, aggregating $202.40, less an admitted credit of $69.51, leaving a balance of $132.89. Plaintiff contends, as is shown by the itemized account attached to the petition, that he sold and delivered to defendant on June 15, 1929, fertilizer to the amount of $135, and on the same date fertilizer amounting to $52.50, and on the same date $14.90 is charged for ginning and baling three bales of cotton; and, without giving a date, the account shows a credit of $59.61, leaving a balance of $132.89.

Defendant contends that he did not buy or receive from plaintiff on June 15, 1929, the items of fertilizer amounting to $135. That about the last of April or the first part of May, 1929, he purchased fertilizer from plaintiff amounting to $135, on which bill he was given a discount of $5, and that on May 31, 1929, he paid said bill of $130 by check, which cancelled check he offered in evidence. Defendant admitted the other item of $52.50 for fertilizer purchased by him on or about June 15, 1929, for one of his tenants, and also the charges for ginning and baling three bales of cot-' ton, in the amount of $14.90, in the fall of 1929, making a total amount due plaintiff of $67.40. Plaintiff admitted the credit of $69.51, therefore, defendant reconvened for the difference, $2.11.

It is clear from the testimony of plaintiff and the itemized account filed that he was not sure of his dates, and that the two bills of fertilizer charged to defendant Were not purchased or delivered on the same date. Defendant and his witnesses, several in number, testified that the fertilizer purchased in May was used on the 7th and 8th of June, and that after that time defendant used no more fertilizer on his place, with the exception of 500 pounds he secured from his tenant, which was left from the $52.50 bill of fertilizer purchased j on June 15th, and that it was used in fertilizing some beans; and that there was no occasion for defendant to purchase the $135 bill of fertilizer on June 15th, as is claimed by plaintiff.

It appears that both plaintiff and defendant are reliable citizens and had been good friends prior to this suit, their business dealings with one another were as friends and were conducted in a very loose manner. When plaintiff first spoke to defendant about the fertilizer account, he did not believe that defendant had paid anything for fertilizer bought during the year 1929, and would not be convinced until he was confronted with the cancelled check for $130, which showed on its face that it had been given for fertilizer. It is clear that plaintiff or defendant is mistaken and it appears to be an honest mistake, as neither accuses the other. of any intentional wrong. The loose manner of doing business between the two no doubt accounts for the mistake. It was incumbent upon plaintiff to prove that he sold the $135 bill of fertilizer to defendant on June 15, 1929, which is denied by defendant. This is the only question in the case.

The lower court found that plaintiff had failed to prove the correctness of the item referred to and we find no error in that part of the lower court’s judgment. The item charged as of June 15, 1929, is undoubtedly the item purchased in May, 1929, and paid for by check as of date May 31, 1929, as contended by defendant. It is admitted that the other items are paid for by the credit given to defendant by plaintiff. When this item is disallowed, there is a balance due defendant of $2.11, for which amount he has reconvened. Plaintiff appealed from the judgment of the lower court and defendant has answered the appeal- praying that the judgment be amended by allowing him judgment in reconvention against plaintiff in that sum. The amendment as prayed for should be allowed.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by awarding judgment to defendant on his reeonventional demand and against plaintiff in the sum of $2.11; and in all other respects that the judgment be affirmed; all costs to be paid by plaintiff.