author: WEBB, J.

text:
    No. 2990
    Second Circuit
    ANDERS v. LEE-ROGERS CHEVROLET CO., INC.
    (Dec. 21, 1927. Opinion and Decree.)
    (Feb. 3, 1928. Rehearing Refused.)

      (Syllabus 6y the Editor)

    1. Louisiana Digest — Evidence—Par. 215.
    A sales slip not signed by the parties is subject to explanation by parol and is not an act of the parties within the meaning of Article 2276 of the Civil Code, against or beyond which parol evidence shall not be admitted.
    2. Louisiana Digest — Evidence—Par. 351.
    Where evidence of witnesses is conflicting, yet all the admitted and proven circumstances support the contention of plaintiff, it must be held that plaintiff’s contention is proven.
    3. Louisiana Digest — Damages—Par. 89.
    Where demand is for possession of automobile and not conversion, damages will not be allowed for mental pain, suffering or loss of use of car, unless proven.
    4. Louisiana Digest — Attorneys—Par. 59, • 70.
    Attorney’s fees for prosecuting suit are not generally allowed but, where allowed, must be proven before allowed.
    • Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. J. T. Shell, Judge.

      Action, by' E. E. Anders against Lee-Rogers Chevrolet Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    W. P. Pipes, Monroe, attorney for plaintiff, appellee.
    • Stubbs & Thompson, attorneys for defendants, appellants.
   WEBB, J.

The plaintiff, E. E. Anders, brought this action against defendant, Lee-Rogers Chevrolet Company, Inc., to recover possession of a Chevrolet automobile and for damages alleged to have been sustained by reason of the illegal retention of possession hy defendant.

He alleges, in substance, that he purchased the automobile from defendant at the price of eight hundred and four dollars and in payment that he delivered to defendant a Dodge automobile at the agreed value of three hundred dollars, and for the balance of the price or five hundred four dollars he gave a note secured hy chattel mortgage on the automobile; that the automobile had been delivered to him but that he had returned it for adjustments to be made and defendant had retained possession and refused to’ return the automobile to plaintiff, and that plaintiff had been damaged in the sum of one thousand and seventy dollars for which he prayed for judgment as well as the possession of the automobile.

In answer defendant denied that it had sold the automobile to plaintiff but alleged that it had entered into an executory contract of sale with plaintiff for the price as alleged by him, of which amount plaintiff was to pay three hundred dollars in cash and give a note for the balance secured by mortgage on the automobile and' that plaintiff, had represented that he owned a Dodge automobile which he could sell to one Elias James at the price of three hundred dollars in payment of which James would deliver a Ford automobile at the agreed value of fifty dollars and pay seventy dollars in cash and give his notes for the balance of one hundred and eighty dollars secured by mortgage on the Dodge automobile and that defendant had agreed with plaintiff to accept the Ford automobile to be delivered by James at the value of fifty dollars and the notes of James for one hundred and eighty dollars and that the cash payment of sev-. enty dollars was delivered to defendant and the whole credited on the price of the Chevrolet automobile.

Defendant admitted that plaintiff had executed a note for five hundred and four dollars as alleged by plaintiff, and that James had delivered the Ford automobile and given notes for one hundred and eighty dollars but had not made the payment of seventy dollars in cash, and plaintiff had not paid nor offered to pay samej and that all bf the transactions were merely preliminary to the sale of the Chevrolet automobile and that the agreement of sale was made under and. subject to the conditions of the payment by plaintiff of three hundred dollars in cash on or before the delivery of the automobile.

On trial plaintiff offered in evidence a notarial act purporting to show a sale of and chattel mortgage on the Chevrolet automobile. It appears that the purchaser was to pay, as a part of the purchase price, three hundred dollars in cash on or before the delivery of the automobile, and plaintiff also offered in evidence a sales slip or statement purporting to show the transaction as to the sale of the automobile, on which there is a credit as follows: “Allowance Dodge Sedan 300.00”, and plaintiff testified that he had delivered the Dodge car to defendant, and the Chevrolet car had been delivered to him.

The plaintiff offered and was permitted, over and subject to plaintiff’s objection, to introduce parol evidence in support of its defense, tending to show that the Dodge automobile had not been accepted by it in ¡payment of the three hundred dollars stipulated to be paid on or before the delivery of the Chevrolet car and in accord with its defense.

Judgment was rendered in favor of the plaintiff decreeing him to be the owner of the Chevrolet automobile and ordering the defendant to deliver same to him, and awarding plaintiff damages in the sum of one hundred and fifty dollars, from which defendant appealed, and plaintiff has answered the appeal praying that the amount of damages be increased to the amount originally claimed and the judgment otherwise affirmed.

We are not informed as to whether or not the court in reaching its conclusion considered the parol evidence which was admitted subject to plaintiff’s objections, we presume, however, that it was, as we think it was admissible.

The notarial act purporting to evidence the sale of the Chevrolet car, is conceded to provide for the payment of three hundred dollars of the ¡purchase price in cash on or before the delivery of the automobile, and it is conceded that plaintiff did not have the right to the delivery of the car until such payment was made; the act does not, however, show the payment of the three hundred dollars, and the sales slip or statement showing an allowance of three hundred dollars for the Dodge car as a credit on the price of the Chevrolet automobile, was offered to show the payment.

The sales slip, considered from any point of view, was extrinsic to the notarial act, and if it could be considered as a receipt, it was subject to explanation by parol evidence (Jones, Evidence, Vol. 3, No. 491) and as it was not signed by the parties, we do not think it could be considered as evidencing an agreement of the parties as to the Dodge automobile, and the rule that parol evidence shall not be admitted against or beyond what is contained in instruments evidencing the agreement of the parties (C. C. 2276) is not applicable to mere memoranda of an agreement which may have been made by one of the ¡parties, and we think the transaction as to the Dodge automobile rested wholly in parol, and that the testimony offered by the defendant to show the transaction and its relation to the sale of the Chevrolet automobile was admissible.

The question of fact, that is, whether or not the defendant agreed to accept the Dodge automobile at an agreed price of three hundred dollars, is not one which is intricate or involved, and the testimony offered by the plaintiff as to such agreement was in effect that defendant did, while the testimony of defendant was to the contrary.

The evidence shows that the transaction as to the Dodge automobile was handled by a sales agent of defendant, and it is shown that James agreed to purchase the Dodge automobile at the price of three hundred dollars, of which seventy dollars should be paid in cash and the balance to be represented by a Ford automobile to be delivered at the value of fifty dollars, and notes of James for one hundred and eighty dollars, and that the sales agent delivered the Dodge automobile to James, who in turn delivered the Ford automobile to defendant and gave to defendant notes for one hundred and eighty dollars secured by mortgage on the Dodge automobile, but that James did not make the cash payment of seventy dollars.

The sales agent states that he was acting for the plaintiff in the transaction with James (which is denied by plaintiff)', however, the evidence shows that James was dissatisfied with the Dodge automobile and returned it to the sales agent at defendant’s place of business, and that the sale of the Dodge automobile was “called off” by the sales agent (without consultation with Anders whom he claimed to represent) and that defendant through its sales agent then sold James a Chevrolet automobile, and. the agreed price of the Ford automobile (which had been received in the transaction with relation to the Dodge car) was switched and allowed as a credit to James on th,e price of the Chevrolet car, and that defendant then attempted to return to the plaintiff the Dodge automobile, who refused to accept it.

While as stated the testimony of the witnesses as to the transaction- relative to the Dodge car is conflicting, yet all of the admitted and proven circumstances support the contention of the plaintiff, and we are of the opinion the court correctly held plaintiff to be the owner of the Chevrolet car, and ordered it delivered to the plaintiff.

The damages claimed by plaintiff were itemized as one thousand dollars for mental pain, worry and anxiety of plaintiff caused by defendant illegally converting plaintiff’s property; ten dollars per day for being deprived of the use of the automobile, and fifty dollars alleged to have been paid by him for attorney’s fees in bringing the suit.

The main demand was for the possession of the automobile, and not for conversion, and while damages for mental pain, suffering and anxiety may be allowed in some cases, evidence must be introduced from which it could be said that mental pain, etc.', for which damages is claimed may be distinguished from such pain suffered as an incident to the necessity of invoking the law to protect one’s legal rights and to enable the court to fix the amount of the damages, and as there was not any evidence offered to support such claim, the court cannot allow damages for such claims.

The claim for the loss of the use of the car, as to the amount is also one which would have to be supported by evidence, and the only evidence which was offered tending to support such claim was that the plaintiff was an officer of the city of West Monroe and needed an automobile in the performance of his duties and had rented an automobile on several occasions, but he did not state what rental he had paid, and conceding without deciding that damages could be awarded on the claim, the evidence does not furnish any basis for the award.

While damages for attorney’s fees for prosecuting a suit are not generally allowed (Day vs. N. O. P. R. R. Co., 35 La. Ann. 698; Eatman vs. N. O. P. R. R. Co., 35 La. Ann. 1018; Ross vs. Goldman, 36 La. Ann. 133; Fox vs. Jones, 39 Ann. 931, 3 Souths 95), but conceding that the plaintiff could recover for attorney’s fees for prosecuting an action to recover his property, we think that in all cases where it is alleged that there was an agreement for the payment of attorney's fees or that an amount had been' paid as such, evidence should be offered to support the claim, and as there was not any evidence offered in support of the claim, it cannot be allowed.

The suit was not for damages for breach of a contract, under which nominal damages could be allowed without proof, and 1 we do not find any evidence which would authorize the award of any damages.

It is, therefore, ordered that the judgment appealed from be amended so as to reject plaintiff’s demand for damages, and as so amended the judgment be affirmed, plaintiff to .pay costs of the appeal.


source: Caselaw Access Project

license: Public Domain

text:
    No. 3029
    Second Circuit
    ALEX OIL CO., INC. v. KAPLAN & SON.
    (Dec. 21, 1927. Opinion and Decree.)
    (Feb. 3, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 222, 230.
    The seller who does not know of the redhibitory vices of the thing sold is, under Civil Code Article 2531, only bound to restore the price and to reimburse the expenses occasioned by the sale which does not include the cost of transportation.
    2. Louisiana Digest — Sales—Par. 215, 218, 222.
    Under Civil Code Article 2454, the seller can be held for damages only when knowing of the redhibitory vices of the thing sold, he omits to declare them but not when these vices are unknown to him.
    3. Louisiana Digest — Sales—Par. 214, 237.
    Sale of a second-hand boiler for use on an oil lease but unfit for that purpose, constitutes a redhibitory vice under Civil Code Article 2520, giving the buyer the right to rescind the sale and claim the return of the purchase price.
    4. Louisiana' Digest — Sales—Par. 216, 224.
    Where the buyer, having the right to rescind the sale under Civil Code Article 2520, consented to the seller’s offer to replace the defective boiler, buyer waived the right to demand the immediate return of the purchase price and rescind the sale, dependent upon the new agreement and character of boiler substituted.
    5. Louisiana Digest — :Sales—Par. 228.
    Where boiler which was delivered to buyer was unsatisfactory, and buyer thereafter allowed seller to deliver another o substitute boiler in its place, in view of Civil Code Article 2460, buyer did not have the right to arbitrarily refuse to accept the boiler when tendered but where boiler was clearly not of the type required, he was justified in refusing to accept it.
    6. Louisiana Digest — Sales—Par. 232.
    Where boiler delivered was unsatisfactory, seller cannot recover expense of examination of boiler made with consent of buyer.
    7. Louisiana Digest — Sales—Par. 241.
    Expenses of tender of boiler which was made by seller to the buyer but refused because not fit for the use which it was to be put, should be borne by "the seller.
    8. Louisiana Digest — Sales—Par. 241.
    The expense of transporting boiler from buyer’s lease back to the seller’s place of business, should be borne by the buyer where he sued to rescind the sale because he was bound to tender the boiler back to the seller.
    9. Louisiana Digest — Costs and Fees — Par. 10.
    Where demands of both parties show each to some extent liable, costs should be borne equally, one-half by each party.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. J. T. Shell, Judge.
    Action by Alex Oil Co., Inc., against M. Kaplan & Son.

      There was judgment for plaintiff and defendant appealed.
    Judgment amended.
    Theus, Grisham & Davis, Monroe, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein & Sholars, Monroe, attorneys for defendant, appellant.
    M. Kaplan & Son, defendant, a partnership with its place of business in Ouachita parish, sold and delivered at defendant’s place of business to plaintiff, Alex Oil Company, Inc., a second hand boiler at the price of six hundred and seventy-five dollars.
    The boiler was transported to an oil lease operated by plaintiff in LaSalle parish, where it was found that the boiler was in such condition that it could not be used, and defendant called on a boiler-maker to repair it, who, after some work, such as cutting out part of the barrel of the boiler for the purpose of patching it, and removing defective flues for the same purpose, concluded that the boiler was not worth repairing and so notified plaintiff, who took the matter up with defendant.
    After some negotiations, defendant sent a boiler-maker to plaintiff’s oil lease to examine the boiler, who reported that it could be repaired, of which plaintiff was informed, and defendant offered to stand for a portion of the cost of repair, but plaintiff would not accede and demanded the return of the purchase price, and further negotiations were had, defendant finally agreeing to replace the boiler with another boiler which it had at its place of business.
    Following, defendant had the replacement boiler tested, and the test being satisfactory, it had the boiler transported to plaintiff’s oil lease, and plaintiff refused to accept it, whereupon defendant had the boiler unloaded at a place near plaintiff's lease and took up the first boiler or the one found to be defective, and hauled it to defendant’s place of. business in Ouachita parish.
    The Alex Oil Company, Inc., brought this suit to recover the price of six hundred and seventy-five dollars and also the expense incurred by it in hauling the boiler from Ouachita parish to its oil lease, or sixty-five dollars, and also the amount which it paid the boiler-maker employed by it to repair the boiler, or twenty-two and 50/100 dollars, as well as the expense incurred by it for telephone charges in negotiations, alleged to have been fifteen dollars, and defendant, in answer to. the suit, while denying the right of plaintiff to recover and praying that plaintiff's demands be rejected, alleged that it had incurred expenses amounting to two hundred and twenty dollars, itemized as fifty dollars, consisting of an amount paid by defendant to the boiler-maker sent by it to the plaintiff’s oil lease to inspect the boiler, and expense of telephone charges paid in negotiations, and twenty dollars paid to have the replacement boiler tested, and one hundred and fifty dollars, cost of transporting the replacement boiler from Ouachita parish to plaintiff’s oil lease and of transporting the other boiler from the oil lease to defendant’s place of business in Ouachita parish, for which defendant prayed for judgment in reconvention.
    On trial, judgment was rendered in favor of plaintiff for seven hundred and two and 50/100 dollars, and in favor of defendant on the reconventional demand for two hundred and twenty dollars, from which judgment defendant appealed, and the plaintiff has answered the appeal, praying that the judgment be amended.
   WEBB, J.

OPINION.

While counsel appear to be of the opinion that the transaction of the parties with relation to the two boilers may be considered as distinct, yet from the statement above, which is supported by the pleadings and the evidence, we are of the opinion that while it is necessary to consider the rights of the parties with relation to their actions and agreements as to each of the boilers, yet as the evidence does not show that the parties in their agreement as to the replacement by defendant of another boiler instead of the boiler first delivered, adjusted the differences relative to the boiler first delivered, and the pleadings showing that they are in this action attempting to adjust differences growing out of the delivery of the first boiler, we think that the transactions between the parties should be considered as a whole.

The evidence shows that when plaintiff purchased thq first boiler, it was casually inspected by plaintiff but that defendant insisted upon a test of the boiler being made, and as the evidence shows that such test would have revealed the defects in the boiler which were subsequently found by the plaintiff, we are of the opinion that the plaintiff could charge itself only with the subsequent expense incurred by it with relation to such boiler, which would include charges for the transportation of the boiler, or the sum of sixty-five dollars, and the expenses for telephone charges (alleged to have been fifteen dollars) in negotiations having as their object the return of the price or any adjustments with relation thereto, as well as the expense of twenty-two and 50/100 dollars incurred by plaintiff in employing a boiler-maker or repairer to repair the same, unless it could be said that the mere fact of the defendant having sold a boiler which was in such bad condition that it could not be used for the purpose for which it was designed, without regard to whether it appears it knew of the vices or knowing of same failed to advise the purchaser of them, should on the rescission of the sale pay the expenses of transportation of the object sold as well as damages, in addition to the return of the purchase price.

The plaintiff does not cite any authority which announces such doctrine, and we do not find any; on the contrary, the law is that the seller who does not know of the vices of the thing sold, is only bound to restore the price and to reimburse the expenses occasioned by the sale (Article 2531 C. C.), which does not include the cost of transportation (Coulter vs. Cress-well, 7 La. Ann. 367) and can be held for damages only when knowing of the vices of the thing sold he omits to declare same (Article 2454, C. C.).

The evidence, however, establishes that the defects in the boiler were not apparent on a mere inspection of the boiler (as contended by the plaintiff) and as stated it further established that the failure of the parties to discover the vices by an inspection or test of the boiler, was due to the fact that plaintiff would not wait to have the boiler tested and we are, therefore, of the opinion that the plaintiff cannot recover for the cost of transporting the boiler, nor the expense of telephone charges incident to the negotiations after the boiler had been found defective, or the cost of the inspection which was made by the plaintiff, thus leaving, insofar as the plaintiff is concerned, only the claim for the return of the purchase price.

While the boiler which was sold was a second-hand boiler, yet we find that the evidence shows that it was, at the time of the sale, not fit to be used for the purpose for which it was designed, which, we think, constitutes a redhibitory vice, and that the plaintiff had the right to rescind the sale and claim the return of the price.

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” (C. C., 2520.)

Considering that the plaintiff had the right to rescind the sale and demand the return of the purchase price, yet in view of the fact that it consented to defendant’s offer to replace the defective boiler with another, it waived the right to demand the immediate return of the purchase price and .its,,, right to the return of the purchase price is, under the pleadings, and evidence, dependent upon the construction of the. agreement and the character of the boiler offered to be substituted.

The evidence established that the defendant agreed that the boiler would be satisfactory to plaintiff, and it shows that the boiler was in such condition as to be used for the purpose of generating steam, hut it was not of the type of the other boiler or such type as is used in oil field operations; and it is argued that from the agreement of the parties, as to the boiler being satisfactory, the plaintiff had the right to arbitrarily refuse to accept, and, further, that as it was not of the type used in the oil field operations, its refusal to accept was based upon sufficient grounds.

A boiler is not such an object as to which one would ordinarily be presumed to reserve the right' to reject it, or the right of view, without regard to whether it was suitable for the purpose for which it was to be used, and while it may be conceded that the sale of such an object could be made under ‘ such a condition (Article 2460, C. C.), the condition would have to be expressed, in unequivocal terms; and considering the transactions between the parties and their purposes as well as the object of the sale, we do not think the showing that the replacement boiler was to be satisfactory to the plaintiff would warrant the construction that plaintiff was authorized to arbitrarily refuse to accept the boiler when tendered.

However, ' as stated above, the replacement boiler was not of the type used in oil field operations, in which it is shown that the type of boiler used is constructed so as to be roughly and readily moved from place to place without "danger of breaking the steam dome from the boiler, and that a locomotive type of boiler is used, while the boiler offered by defendant was a marine type, which could not be so readily handled, without danger of breaking the steam dome from the barrel of the boiler, and we find that the plaintiff was justified in refusing to accept the boiler tendered, and that he is entitled to the return of the price of six hundred and seventy-five dollars originally paid defendant.

As stated, the reconventional demand was based upon three items of expense, alleged to have been incurred by defendant. The first related to an expense of twenty dollars for sending a boiler-maker to the oil lease to examine the boiler originally purchased, to ascertain whether it could be repaired and, if so, the cost of such repairs.

The evidence does not show that the plaintiff requested the defendant to make an examination of the boiler with a view of having it repaired or for any other purpose, and, as we have stated, the boiler, at the time of the sale, was in such condition as rendered it unfit for the purpose for which it was designed, and the plaintiff had the right to demand the rescission of the sale and the return of the purchase price, and defendant cannot recover for the expense of the examination of the boiler made with the consent of the plaintiff.

The second item was for fifty dollars for trips, telegrams and telephone conversations in regard to the boilers. While there is some evidence that defendant incurred some expenses for trips, etc., no certain sum is shown to have been incurred either for trips, telegrams or telephonic communications, nor was there any evidence tending to show what portion of the amount was incurred with reference to the original transaction or the replacement transaction, and we therefore find this item should not be allowed.

The third claim was for one hundred and fifty dollars, which the evidence shows was incurred in hauling the marine type boiler to the plaintiff’s lease, and in transferring the first boiler from the lease to defendant’s place of business.

The effort of the defendant to have plaintiff held to accept the marine type boiler has been refused for the reason-that plaintiff was not held bound to accept such a boiler, and we do not think there could be any reason to hold the plaintiff for the expenses of the tender.

The expense of transporting the first boiler from the lease to defendant’s place of business, we think should be borne by the plaintiff, for the reason had plaintiff sued to rescind the sale in the first instance he would have been bound to tender the boiler, and in view of the evidence showing that the defendant had offered to have it tested before it was delivered to plaintiff.

In view of the testimony offered bearing on the demands of both parties and each being to some extent liable, we think that the costs should be borne equally, one-half by each, rather than cast wholly upon the defendant (Hunter Canal Co. vs. Robertson’s Heirs, 113 La. 833, 37 South. 771.)

It is, therefore, ordered that the judgment appealed from be amended so as to reduce the amount allowed plaintiff to six hundred and seventy-five dollars, and the amount allowed defendant on the re-conventional demand to seventy-five dollars, and that all costs be divided equally between the parties.


text:
    No. 2986
    Second Circuit
    NORRIS v. LOUISIANA CENTRAL LUMBER CO.
    (Dec. 21, 1927. Opinion and Decree.)
    (Feb. 3, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 160 b, 160 j.
    Although the defendant, after having paid compensation under the Workmen’s Compensation Act No. 20 of 1914, is held to have admitted injured employee entitled to compensation, nevertheless, injured employee must prove continuation of disability, even though partial, beyond the period during which compensation was paid, there being no presumption of disability under the law.
    2. Louisiana Digest — Master and Servant —Par. 160 I.
    The finding of fact by the trial court that injured employee suffered disability after payments of compensation ceased, being, in view of testimony of physicians, clearly erroneous, is reversed.

      Arppeal from the Eighth Judicial District Court of Louisiana, Parish of Caldwell. Hon. F. E. Jones, Judge.
    Action by William D. Norris against Louisiana Central Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Huey P. Long; George T. McSween, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   WEBB, J.

In this action for compensation under Act No. 20 of 1914 as amended, the plaintiff, W. D. Norris, alleged that he had been in the employ of defendant Louisiana Central Lumber Company, a corporation operating a saw-mill, receiving a weekly wage of approximately thirty-one and 50/100 dollars, and that on or about the 28th day of .February, 1925 while cutting timber for the defendant he received a severe strain to his left abdominal wall, causing a rupture and hernia which permanently totally disabled him from doing any work of a reasonable character.

That prior to the accident plaintiff had sustained and was suffering from a hernia on his right side, and that the second hernia had totally disabled him.

And he further alleged that about two years prior to the accident he had received severe injuries to his right foot which had caused him some inconvenience in executing heavy tasks of labor, and that on the date of the accident causing the hernia, February 28th, 1925, his foot and ankle had been sprained and the injuries formerly sustained greatly aggravated.

That on or about the 30th day of April, 1925, he had been operated on for the hernia resulting from the accident on February 28th, 1925, but that the operation was not a success and that he still suffers from the hernia received on that date.

That the defendant had knowledge of the injury sustained by him and of the extent of same and paid him compensation up to November 1st, 1925, but had refused to pay him compensation since that date, and he prayed for judgment against defendant for compensation at the rate of twenty dollars per week for the period of his disability not to exceed four hundred weeks, the first payment to be due on March 7th, 1925, with legal interest on the payments from due date until paid, and he further prayed for judgment for two hundred and fifty dollars necessary medical expenses.

The defendant answered admitting that the plaintiff had been in its employ and that he claimed to have sustained a strain which caused a hernia on or about the latter part of February, 1925, but alleged that he had not complained of any other injury or aggravation of previous injuries and that it did not have any notice of other injuries.

That defendant had been operated upon for the hernia claimed to have resulted from an accident in February, 1925, and the operation was a, success and plaintiff was entirely cured, and defendant alleged that iplaintiff’s wages had been four dollars per day or twenty-four dollars per week and that he had been paid compensation up to November 1st, 1925, although plaintiff’s disability had ceased prior to that date.

On trial plaintiff supported his allegations by his testimony, but he was unable to fix -with any degree of certainty the amount of wages he had received, and in an indefinite manner he stated that his foot and ankle had been sprained some two years before the strain resulting in the hernia had been sustained and that at about the time the strain was received his ankle had been injured, although he states that at the time of the alleged injury to his ankle he did not notice it, and plaintiff attributed his disability to the hernia or pain which he claimed to suffer in the region of the operation and to the injury to his ankle and to his having gained in weight, his testimony being in part as follows:

"Q. What was your condition after you came out of the hospital?
“A. I came out very stout at that time; I wasn’t able to stay on my feet, and I came home and stayed off of my feet some time * * *
“Q. You say you are very stout, what do you mean?
“A. I am heavy on my feet; lots of flesh.
“Q. What has been your feeling — explain to the court your real condition today?
“A. Well, since the operation I have gained so much flesh, about fifty pounds I have gained, more or less, and there is a disagreeable feeling and a pain in this side, and I just want to sleep all the time. I have a kind of nauseated feeling, Judge, more than I have ever had it before.”

He admitted that all of the expenses of the operation for the hernia had been borne by the defendant, and did not claim that he had paid any medical or hospital fees, or that he desired to have further treatment.

The evidence offered on behalf of defendant tended to show that the plaintiff had not sustained a strain on February 28th, 1925, but that the hernia for 'which he had been operated upon in April, 1925, had developed about a year prior to that date, and that at the time of the operation plaintiff had not complained of sustaining any injury to his foot or ankle either before or at the time he claimed to have received a strain resulting in the hernia, and all of the physicians who testified, of whom there were three, two of whom had operated upon the plaintiff for the hernia in April and had examined him several times since and prior to November 1st, 1925, stated that the operation was successful in' that the wound had healed and that the walls of .the abdomen were stronger than before the hernia had occurred; their opinion being that the walls of the plaintiff’s abdomen were congenitally weak and the hernias which developed were in a, manner due to such condition but that the operation had cured the defect, and they could not find any indication of a condition which should cause the plaintiff to suffer any inconvenience or pain from the hernia or operation, and that they were of the opinion if plaintiff was unable to perform the work which he was doing at the time of the accident subsequent to the healing of the wound incident to the operation, it was due to the fact that he had not exercised his muscles and had become fat and his muscles flaccid.

The evidence offered by defendant also showed that plaintiff had not earned for the last three months while engaged in defendant’s employ weekly wages in excess of twenty-four dollars per week, and that he had received full compensation as for total disability to November 1st, 1925, and that the wound from the operation had healed- at least two months prior to that date.

The trial was had on December 15th, 1926, and the court held that the plaintiff had recovered from any disability resulting from the accident prior to that date, but in view of the fact that plaintiff had been paid full compensation as for total disability up to November 1st, 1925, he could not have fully recovered on the latter date, or was unable to perform reasonable manual labor at that date due to the fact that his muscles were soft, plaintiff not having worked from the time he was operated upon to that date, and estimating that plaintiff’s muscles would be sufficiently developed or strengthened by exertion, in twenty2two weeks, and that he could earn during such time two dollars a day, he was entitled to receive compensation for partial disability for a period of twenty-two weeks at the rate of seven and 80/100 dollars iper week from November 1st, 1925, and rendered judgment accordingly.

While defendant, having paid compensation, is held to have admitted that the plaintiff was entitled to compensation under the statute (Johnson vs. Vernon Parish Lumber Co., 151 La. .63, 92 South. 219) in default of proof to the contrary, we do not think the payment of compensation as for total disability could be held to show that disability, even partial, continued beyond the period during which compensation was paid, but that the question is dependent upon proof of the continuation of disability as the result of the accident for which compensation was paid.

While the evidence shows that one of plaintiff’s ankles was somewhat enlarged, yet his testimony as to the cause of such enlargement and its connection with his asserted disability is so vague and considering the fact that he did not complain of any such injury to the defendant, and that the evidence shows that subsequent to the time he states the injury to his ankle or resprain occurred, he worked for more than a week at his occupation of sawing and felling timber, earning more than he had earned in the same time during the preceding three months, we do not think the payment of compensation should be held to have been an admission that the plaintiff was entitled to compensation for such asserted injury or that the enlargement of plaintiff’s ankle is proven to have been caused by an injury sustained in the course of his employment or should be considered in determining whether or not the disability resulting from the hernia or operation continued after the date the defendant ceased to pay compensation.

The only evidence which indicates that the hernia or operation after the wound had healed continued to cause any disability, was the plaintiff’s statement that he experienced continuous pain in the region of the wound which was more severe when he coughed or jumped, but the physicians who were called as witnesses state that the wound from the operation had entirely healed and that the walls of the abdomen were stronger than before the operation and that they did not and could not find any symptom or cause for the pain of which the plaintiff complained.

The trial court did not accept the plaintiff’s statement, and considering the vagueness and contradictions in plaintiff’s testimony, with the testimony of the physicians, although their testimony might be in some respects negative (see King vs. Rapides Packing Co., 5 La. App. 824; Reynolds vs. Hotel Youree Co., 6 La. App. 790), we are of the opinion that the court did not err in refusing to accept plaintiff’s statement and in finding he did not suffer with any disability at the date of the trial as the result of the hernia or operation.

However, the statement of the plaintiff related not only to the time of the trial but also to the period after November 1st, 1925, and although compensation was paid until November 1st, 1925, we do not, as previously stated, think that such fact created a presumption that the plaintiff was disabled after that date nor that it could be said to corroborate plaintiff’s evidence that he suffered from the operation after that date.

While it may be true that plaintiff was, on November 1st, 1925, unable to do the laborious work which he had done before the development of the hernia, however, the wound from the operation is shown to have completely healed about June 1st, 1925, and the walls of plaintiff’s abdomen after that date to have been stronger than before the hernia developed, and his disability, if any, must have been due to the fact that his muscles were flaccid, which we do not think can be properly classed as a disability, or, if it could, the wound having healed in June, compensation was paid for a sufficient length of time for plaintiff to have developed or strengthened his muscles.

The judgment appealed from is therefore avoided, and reversed, and it is now ordered that plaintiff’s demands be rejected at his cost.


text:
    No. 3006
    Second Circuit
    STEARNS v. LOVE DRILLING COMPANY, INC.
    (Dec. 21, 1927. Opinion and Decree.)
    (Feb. 3, 1928. Rehearing Refused.)
    1. Louisiana Digest — Master and Servant Par. 154, 156; Admiralty — Par. 1, 2.
    The state courts of Louisiana have no jurisdiction rationae materiae of Workmen’s Compensation cases originating by an accident to an employee on a barge on a navigable body of water.
    2. Louisiana Digest — Master and Servant —Par. 154, 156; Admiralty — Par. 1, 2.
    The United. States courts and Maritime Law have exclusive jurisdiction over all Workmen’s Compensation cases originating by injury to an employee on a barge on a navigable body of water.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by Lucinda Stearns against Love Drilling Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Matthew C. Redmond, of Monroe, attorney for plaintiff, appellant.
    Theus, Grisham & ' Davis, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

In this action the plaintiff, Lucinda Stearns, seeks to recover compensation under the State Employers’ Liability statute (Act No. 20 of 1914) for the death of her son.

She alleged that her son, while employed by defendant, which was operating a line of barges on the Ouachita' river, was knocked from one of the barges by being struck with material which was being loaded thereon, and drowned; and defendant filed a plea to the jurisdiction of the court ratione materiae, which was sustained, and (plaintiff appeals.

The Ouachita river is admittedly a navigable stream, and under the plaintiff’s allegations the barges were operated in maritime service, and the employment of defendant was subject to the admiralty jurisdiction; (Volume 1, Corpus Juris, 1263, 1264, 1275; Meyer vs. Hankins Brothers, 5 La. App. 190); and the State Employers’ Liability statute is not applicable where an accident occurs to such an employee while engaged in maritime service (Knickerbocker Ice Co. vs. Stewart, 253 U. S. 149; 64 L. Ed. 834; Jones vs. Crescent City Ice Co., 162 La. 151, 110 South. 182. See notes, A. L. R. vol. 11, page 1155; vol. 31, page 518).

The action being instituted under the state statute, we think that the plea to the jurisdiction ratione materiae was properly sustained, and the judgment is affirmed.


text:
    No. 3162
    Second Circuit
    HIGGINS v. THE MOST WORSHIPFUL ST. JOHN’S GRAND LODGE, A. F. & A. M., ET AL. MAUD BIRDLONG, Intervenor.
    (Dec. 21, 1927. Opinion and Decree.)
    (Feb. 3, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 237, 588, 589.
    An intervenor must appeal from a judgment rejecting her demands, otherwise, the Court of Appeal will not consider her demands.
    2. Louisiana Digest — Appeal—Par. 237, 589.
    Where the defendant merely occupied the position of stake holder and the intervenor against whom judgment was rendered in the trial court, did not appeal, the appeal by defendant will be dismissed.
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of East Carroll. Hon. F. X. Ransdell, Judge.
    Action by Mathilda Higgins against The Most Worshipful St. John’s Grand Lodge, A. F. & A. M., et al., Maud Birdlong, Intervenor.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    A. J. Wyly, of Lake Providence, attorney for plaintiff, appellee.
    Charles M. Roberson, of Shreveport, Robert P. Kennedy, of Lake - Providence, attorneys for defendants, appellants.
   WEBB, J.

This is an action by the wife of John Higgins, who claims that she was the beneficiary under a policy issued by defendant on the life of Higgins.

Maud Birdlong was named as the beneficiary under the policy when it was written, but the plaintiff alleges that the insured had changed the beneficiary before his death and instituted her as the beneficiary.

The defendant denied that the insured had legally changed the beneficiary, but admitted its liability under the policy to either the plaintiff or Maud Birdlong, and Maud Birdlong intervened in the suit, joining the defendant in resisting plaintiff’s demands, and asserting that she was the beneficiary under the policy, and prayed for appropriate relief.

On trial, judgment was rendered in favor of the plaintiff against the defendant, and the defendant alone appealed.

The intervenor having failed, to appeal from the judgment, cannot be relieved from the judgment rejecting her demands on appeal.

“A party intervening in a suit and joining the defendant in resisting the plaintiff’s demands, must for himself appeal from a judgment a,gainst the defendant and intervenor; otherwise he cannot obtain relief therefrom; an appeal by the defendant will not suffice.”

Hardie vs. Colvin, 43 La. Ann. 85, 95 So. 745.

The defendant occupied merely the position of a stakeholder, and the intervenor having failed to appeal, we are of the opinion the defendant was without interest to appeal and that the appeal should be dismissed, and it is so ordered.


text:
    No. 3092
    Second Circuit
    HAIR v. MORGAN’S LOUISIANA & TEXAS RAILROAD & STEAMSHIP COMPANY
    (Feb. 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625, 626.
    Where only issues of fact involving the credibility of witnesses are presented, if the judgment is not clearly erroneous, it will be affirmed.
    Appealed from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. L. P. Gremillion, Judge.
    Action by V. H. Hair against Morgan’s Louisiana & Texas Railroad & Steamship Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    L. L. Bordelon; Porterie & Bordelon, Marksville, attorneys for plaintiff, appellant.
    White, Holloman & White, Alexandria, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, V. H. Hair, was a passenger on a train operated by defendant, Morgan’s Louisiana & Texas Railroad & Steamship Company, from Alexandria to Eola, and he claims that after the train had stopped at Eola and as he was in the course of going down the steps of the coach to leave the train, there was a sudden movement of the train or coach, causing him to lose his grasp of the iron railing to which he was holding as he proceeded down the steps, fracturing his finger and spraining his wrist and causing him to lose his balance and to fall from the steps, resulting in dislocating his hip, from which other complications had set up, resulting in permanent inpairment, disabling him from effectively following his profession of veterinary surgeon, and in this action he seeks to recover damages.

The defendant admitted that plaintiff was a passenger, and otherwise denied his allegations, and alleged certain facts tending to refute the claim of plaintiff as to the alleged fault of defendant, and on trial judgment was rendered rejecting plaintiff’s demand, from which he appeals.

The testimony of the witnesses called by the respective parties who claimed to have observed the situation, as the plaintiff descended the steps, is directly conflicting, the witnesses for plaintiff testifying that after the train had stopped there was a sudden movement of the train, causing plaintiff to fall from the steps, and that it was necessary to assist him to get up, and that the brakeman and two of plaintiff’s witnesses assisted him to his automobile, while the witnesses for defendant testified that there was not any movement of the train at such time, and that plaintiff did not fall from the steps, and that he walked from the train without any assistance, complaining that he had hurt his finger, which is accounted for by the testimony of the conductor, who stated that plaintiff, in passing from the coach to the vestibule, had stumbled.

There were four witnesses for plaintiff, including himself, his brother-in-law, and two young men, one of whom appears to have been associated with plaintiff in a business as well as a social way, and the other was a stranger, who informed plaintiff of his presence at the station some time after the alleged accident, while there were nine witnesses for the defendant, including the train crew, consisting of the conductor, brakeman, porter, engineer and fireman, and the station agent, section foreman and his son, and a passenger on the train.

The. trial court, as appears from the opinion, was familiar with the scene of the accident, and his knowledge of the situation enabled him to analyze, and compare the testimony' of the witnesses called by the parties with relation to the positions from which they claimed to have observed the situation as plaintiff descended the steps, and noting the discrepancies in the testimony of plaintiff’s witnesses as' to facts established by the preponderance . of the evidence, he held that plaintiff had failed to prove his case.

• The case presents only issues of fact, involving the .credibility of the witnesses, and from our review of the record we do not find there is manifest error.

“Where an issue of fact hinges on the credit to be attached to the testimony of witnesses, the findings of the judge be'low will not be disturbed unless clearly wrong on the face of the evidence.” Schwartzenberg vs. Schwartzenberg, 138 La. 292, 70 South. 230.

The judgment appealed from is therefore affirmed.


text:
    No. 3177
    Second Circuit
    JARRELL v. CUMBERLAND TELEPHONE & TELEGRAPH COMPANY
    (Feb. 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 159.
    Injured employee, suing for compensation under the Employer’s Liability Act No. 20 of 1914, as amended, is entitled to compensation not to exceed three hundred weeks for partial disability, where the evidence shows that his injuries were to his- back, wrist and feet, the heel bones' of which were fractured, his back and feet causing him pain, making it necessary for him to rest at intervals while working.
    2. Louisiana Digest — Master and Servant —Par. 159, 159 a, 160- j.
    Where injured employee, suing for compensation under the Employer’s Liability Act No. 20 of 1914, has not shown what he is able to earn since the accident but does show the injuries to his back and feet of such a ■ nature as to reduce . his efficiency about one-half, judgment will be given as for partial disability on a basis of one-half his fqrmer earning capacity.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Grant. Hon. Leven L. Hooe,- Judge.
    Action by Robert Jarrell against Cumberland Telephone & Telegraph Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    George T. McSween, Shreveport, attorney for .plaintiff, appellant.
    Overton & Hunter; H. W. Hill, Alexandria, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, Robert Jarrell, a young man, twenty-three years of age, employed by defendant, Cumberlind Telephone & Telegraph Company, was injured on July 27th, 1925, in an accident arising in the course and out of his employment, and he instituted this suit on January 18th, 1926, to recover compensation under the Employers’ Liability Statute, alleging that he had been permanently totally disabled to do work qf any reasonable character, and on trial of the cause on April 26th, 1926, judgment was rendered rejecting plaintiff’s demands, from which he appeals.

The plaintiff, while engaged in clearing a right of way, fell from a tree, a distance of about thirty-five feet, and sustained injuries to his back, wrist and feet, the heel bones of which were fractured, and on trial plaintiff supported his demands by his own testimony, to the effect that his back and feet caused him pain to such an extent that he was unable to do work of any reasonable character, and his testimony was supported by that of two physicians, who were called by him, who stated that, from their examination, they found plaintiff’s feet in such condition he would suffer with pain while standing or walking, and expressed an opinion that the condition was permanent and that plaintiff was disabled to do work of any reasonable character.

The defendant admitted that the injury had occurred as alleged by plaintiff, alleged that it had paid plaintiff during the period of his disability immediately follow ing the accident two hundred seventy seven and 81/100 dollars, and denied that he was disabled to any extent at the time of the trial, and evidence was offered showing the payments as alleged and that plaintiff had re-engaged in defendant’s em ployment on October 17th, 1926, where he had remained until January 2nd, 1926, in which employment he had driven a truck for about three weeks and then had dug post holes and done other work requiring him to stand and walk, which latter work was of a similar nature to that which he had performed prior to the accident, and for which he had been paid a slight increase of wages over that paid him prior to the accident.

It was also shown that during the period from October 17th, 1925, to January 2nd, 1926, plaintiff had, after the day’s work, with his fellow employees, walked or stood on the streets of the town where they were working and played several games of pool.

The evidence of the physician, however, who treated plaintiff, and ordered him to return to work, shows that he did not regard plaintiff as having completely recovered at that time, and the testimony of the witnesses who were called by defendant to show that plaintiff had worked, establishes that he complained of his feet paining him, and that he would rest at intervals, and we do not think the evidence as to plaintiff’s employment during the period from October 17th, 1925, to January 2nd, 1926, establishes more than that plaintiff was able to do some work by resting at intervals which required him to stand or walk on his feet.

The defendant’s evidence as to the condition of plaintiff at the time of the trial, was the testimony of the physicians who had treated him after the accident, and while it appears that the physician was of the opinion that plaintiff was not incapacitated from doing work of any reasonable character, yet we do not gather from his testimony that he. was of the opinion that plaintiff had fully recovered from his injuries at the date of the trial, as to which his testimony reads in part as follows:

“Q. Doctor, will you examine the plaintiff’s feet?
“A. (After examining plaintiff’s feet.) For the injuries he has had he has had wonderful results.
“Q. Is it your opinion that his condition will improve?
“A. Fracture of the foot will improve until it is one and one-half years old.
“Q. Is it your opinion that this man is able to do work of a reasonable character ‡
“A. Yes, sir; except when the weight would go on the ball of the foot, maybe, or climbing, he couldn’t stand that, but he should be able to walk around, get around pretty good.”

Plaintiff contends that the preponderance of the evidence shows that the injury was serious, and totally disabling him, and that the disability had continued for a considerable period, and that he was totally disabled at the time, of the trial, and should recover judgment for permanent total disability, citing Price vs. Gilliland Oil Co., 3 La. App. 175; however, while we find that plaintiff, had not entirely recovered from the injuries on the date of the trial, we do not find that he was totally disabled to do work of any reasonable character at that date, or even after October 12th, 1925.

The reason which plaintiff gives for his inability to work, is that his feet are in such condition that he cannot stand or walk without pain. The evidence, however, shows that he performed work for more than two months which required him to stand and walk, and that during that time, after the day’s work, he had engaged in amusements which required him to Stand and walk, and we do not think the pain which he may have suffered could have been very severe, and as the evidence does not show that the fracture had been improperly aligned and was not healing, we are of the opinion that plaintiff at most was only partially disabled at the time of the trial.

The record does not contain any evidence on which the earning capacity of plaintiff can be determined, unless reference be had to the amount received by him from October 17th, 1925, to January 2nd, 1926, which we do not think can be accepted as more than indicative of his ability to earn something, .and it may be said the cause should be remanded for further evidence as to the extent of plaintiff’s disability.

However, a new trial will necessarily involve delay and considerable expense, and subject to the rights of the parties to ask for the cause to be remanded for a new trial, we feel that it is safe to say that plaintiff’s disability does not exceed one-half, and his wages at the time of the accident being shown to have been twenty-six and 80-100 dollars, we shall fix the amount of weekly compensation at sixty-five per cent, of thirteen and 40/100 dollars, or eight and 70/100 dollars.

The evidence, however, shows that plaintiff had been paid full compensation from the date of the accident to October 17th, 1925, and from that time to January 2nd, 1926, he was given employment by the defendant, for which he was paid as much as he had earned prior to the accident, and we think that the period from the date of the accident, August 3rd, 1925, to January 2nd, 1926, or twenty-four weeks, should be deducted from the total period'.

It is, therefore, ordered that the judgment appealed from be avoided and reversed, and that plaintiff, Robert Jarrell, have and recover judgment against the defendant, Cumberland Telephone & Telegraph Company in the sum of eight and 70/100 dollars per week during the period of his disability, not to exceed two hundred and seventy-six weeks, the first payment beginning on January 2nd, 1926, and all payments to bear legal interest from maturity, and all cost of suit.


author: ODOM, J.

text:
    No. 3077
    Second Circuit
    LEWIS v. GULF REFINING CO. OF LA.
    (Feb. 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles — Par. 4 a, 4 b.
    One who intends to make a left turn on a city street which is used by many vehicles, must first ascertain whether he can do so safely before attempting to turn. His failure to do so shows gross negligence.
    2. Louisiana Digest — Automobiles — Par. 4 b, 4 d.
    The failure of the driver of an automobile to comply with a city ordinance requiring him to first ascertain whether he can make the turn in safety and making it necessary for him to signal by hand before making it, is clearly guilty of gross negligence if he fails to observe the ordinance.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by W. Richmond Lewis (Herschel McGinty, substituted) against Gulf Refining Company of Louisiana.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    K. Hundley, Alexandria, attorney for plaintiff, appellee.
    White, Holloman & White, Alexandria, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit to recover $110.50 damages to his automobile resulting from a collision between it and a truck belonging to the defendant company.

There was judgment for plaintiff for the amount claimed and defendant appealed.

The collision took place on Lee street in Alexandria at the ¡point where Schnack street comes into Lee street over on the left hand side.

The testimony shows that Henry Ryder was driving the defendant’s truck down Lee street on the right hand side and that when he reached the point where Schnack street comes in to Lee street he made a left turn across Lee to go into Schnack to deliver some oil to a groceryman; and that when the truck had reached a point near the left hand side of Lee street, plaintiff’s car ran into the truck on the left hand side while trying to pass it, causing damage to plaintiff’s car in the sum of $110.50.

The testimony further shows that plaintiff’s car was being operated by a young man named Julius Clay and that he, with five others in the car, were on their way down Lee street to the Bolton High School building. They caught up with the truck about half a, block from where Schnack enters Lee street and followed it, on the same side of the street, until they reached Schnack when the driver attempted to pass the truck on the left.

The driver-of the car and the two passengers on the front seat with him say that when they were about twenty-five feet from the truck the driver sounded his horn and sounded it again when the car was along by the side of the truck but that the driver of the truck, without any warning or sign indicating that he intended to turn, suddenly turned the truck to the left across the street in front of the car, when it was too late to avoid the collision.

Mr. Ryder, the driver of the truck, says he did not hear the horn, and says, further, that before turning he extended his left hand, indicating his intention to turn.

Mr. Hussey, who was riding in the truck with Ryder, says he did not hear the horn, but was paying no particular attention.

Those in plaintiff’s car, that is, the driver and the other two on the seat with him, say Ryder did not extend his hand and that he gave no warning of his intention to turn.

' Mr. Hussey says he did not see Ryder extend his hand, but says he may have done so; he was paying no attention.

A man named Chicóla was standing over on the left side of the street and saw the collision but did not see the movements of either the car or the truck previous to the moment of the collision.

Plaintiff contends that defendant’s driver was grossly negligent in the operation of the truck in that he made a sudden turn to the left across the street without giving any sign or warning of his intention to turn.

Defendant contends that the driver of (plaintiff’s car was negligent in that he attempted to pass the truck without sign or warning.

Three of plaintiff’s witnesses say positively that the truck driver gave no sign before turning to the left and say further that the driver of the car, before attempting to pass, sounded his horn twice, once when twenty-five feet behind and once when up at the side of the truck, each of which signals should have been heard by the driver of the truck; so that according to the preponderance of the evidence, the truck driver gave no sign before turning and was, therefore, guilty of the grossest kind of negligence; and, furthermore, according to a preponderance of the evidence, the driver of the car took the usual and necessary precautions of sounding his horn before attempting to pass the truck.

We cannot, therefore, say that the driver of plaintiff’s car was guilty of any negligence at all. However, if it be conceded that- he was ’ guilty of some contributory negligence, the fact remains that the driver of the truck was guilty of the grossest kind of negligence, which was the main contributing cause of the collision.

He made a sudden turn to the left across one of the main streets of the city of Alexandria, where drivers of motor vehicles must always anticipate the presence of other vehicles which may desire to ipass from the rear;

Under all the rules and practices, aside from any statutory regulations, the driver of a motor vehicle on a much travelled street, as this was, who desires to make a left turn across the street, must be particularly careful and on the alert for cars meeting or overtaking his, and must not make such turn until he is sure the way is open.

It is a particularly dangerous and hazardous move to make, and he must use the greatest precaution.

Under the city ordinance regulating vehicular traffic on the streets of. Alexandria, the rule is laid down as follows:

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

The driver of defendant’s truck says he signalled with his hand. Conceding that he did, he by no means met' the requirements of the ordinance. It requires that he signal and that he “shall ascertain that such movement can be made in safety”.

Which we interpret to mean that be-bore turning he shall look to the front and to the rear and ascertain that the way is clear.

If he had looked to the rear at the proper time he would have seen plaintiff’s car attempting to pass and the collision could have been avoided. It was his duty to look under any and all circumstances; but in this case he was especially negligent because he knew plaintiff’s car was trailing him. He says he looked back and saw the car approaching when it was some distance away but did not then know that the driver intended to pass. He was driving a heavy two-ton truck at a speed of about ten to twelve miles an hour. He should have anticipated that the driver of the approaching car would want to pass, especially in view of the fact that he could do so without exceeding the speed limit.

The driver of the truck was grossly negligent and his negligence was the prime cause of the collision.

We have not overlooked the authorities cited by defendant’s able brief, but they are not in point.

In the case of Stevens vs. Dean, 6 La. App. 537, recently decided by us, we said:

“While the drivers of automobiles are bound -to maintain a lookout and observe the way to the front, they cannot be held to such observance to their rear; and where cars are being driven along the highway and in the -same direction, the forward car has the superior right and cannot be said to be negligent so long as he uses the road in a lawful manner, and the evidence does not indicate that the place of the accident or the traffic was of such nature that driver of defendant’s car was bound to anticipate the presence of plaintiff’s car. * * *”

A reading of that case discloses that the accident happened on the Jefferson Highway and not on a street of a city; and while our decision in the Dean case seems to be supported by authority (Blashfield on Automobiles, and Lumber Company vs. Ollenge, 94 South. 177), yet it cannot be said that the rule announced applies in a case like the one at bar where the accident took place on a prominent and much traveled street of a city where the drivers of cars must always anticipate the presence of other cars.

In the case of Government Street Lumber Co. vs. Ollinger, 94 South. 177, which we followed in the Stevens vs. Dean case, 6 La. App. 537, supra, the rule -was stated:

“The driver of the front car owes no duty to the rear or trailing car except to use the road in the usual way, in keeping with' the laws of the road, and until he has been made aware of it, by signal or otherwise, he has a right to assume, either that there are no other automobiles in close proximity to his rear, or that being there it is under such control as not to interfere with his free use of the road in front of and to the side of him in any lawful manner. In the absence of facts or circumstances that would put him on notice of the near approach of another automobile from his rear, the driver may drive slow or fast, select the parts of the road best suited to travel, stop or start at • will or turn into side roads, without the giving of signals of such intention. Of course the rule would be different on the streets of a city where the passage of automobiles along the streets is constant and frequent, requiring of all drivers of motor vehicles a high degree of - care and watchfulness, this of itself being sufficient notice of the near approach of other cars, and under the same circumstances known to the driver, the same rule applied to city streets would apply to country highways.”

The distinguishing features between the case of Stevens versus Dean, decided by us, and the Ollinger case, supra, and the case at bar are that in the reported cases the accidents happened on country highways where there was nothing to cause the driver of the forward car to anticipate the, presence in the road of others cars; whereas in the case at bar the accident occurred on a street of a city where the presence of other cars is always to be expected and must be anticipated. And, furthermore, the driver of the truck, in the instant case, looked back and saw plaintiff’s car approaching. And, above all, the traffic ordinances of the city of Alexandria prohibit the driver of a motor vehicle from making a turn on one of its streets without ascertaining that such turn can be made in safety.

The driver of the truck, therefore, violated both the law of the street and also the city ordinance.

The judgment appealed from is correct and is therefore affirmed with costs.


text:
    No. 3066
    Second Circuit
    JARRELL v. EWING
    (February 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 156.
    The repairing of a dwelling house, of which the owner’s principal occupation is practicing medicine, is not within the Employer’s Liability Act No. 20 of 1914, because the work was not done “in the course of the employer’s trade,” even though the owner expects to obtain rent from the lease of the house.
    2. Louisiana Digest — Master and Servant —Par. 157.
    The repairing of a dwelling house is not a hazardous occupation within the meaning of Employer’s Liability Act No. 20 of 1914.
    (Editor’s Note; See Section 1, Subsections 2 and 2 (a), of Act 20 of 1914, and Section 3 of Act 85 of 1926.)
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Seaman R. Jarrell against Fayette C. Ewing.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. M. Shevin,' of Alexandria, attorney for plaintiff, appellant.
    White, Holloman & White, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, S. R. Jarrell, a carpenter, while employed by the defendant, F. C. Ewing, and engaged in repairing a building belonging to the latter, received an injury arising out of his employment, which resulted in the loss of the distal and part of the proximal phalanx of the thumb of his left hand, for which he instituted this suit to recover compensation under the Employers’ Liability Statute, and he appeals from a judgment rejecting his demands.

In addition to the facts stated above, the evidence establishes that the defendant was a physician, engaged in the practice of his profession, and that there was a dwelling house situated in the immediate vicinity of his residence, which had been kept in bad repair, and that defendant purchased the house with the view of having it repaired and removing an “eyesore”, and with the purpose of renting it; that he employed plaintiff to make certain designated repairs on the building, agreeing to pay at the rate of sixty-five cents per hour, and that plaintiff worked nine hours per day for six days a week, and that while engaged in the work a hand-saw, which he was using, in some way slipped and cut his thumb, and that the wound became infected, resulting in the loss as stated above.

Plaintiff, while conceding that defendant’s principal occupation was practicing medicine,3 contends that he was also engaged in the business of leasing houses, and that necessarily one engaged in such business was bound to maintain the buildings leased in repair, and that the work of repairing buildings is designated as hazardous.

Plaintiff concedes that under the construction which has been -given to the statute, a householder, or one who employs workmen to repair his dwelling house, as to such work has been held not to be liable under the statute for compensation to workmen who may be injured while engaged in such work (Shipp vs. Bordelon, 152 La. 795, 94 So. 399; Blanc vs. Iglehart, 5 La. App. 17), but he contends that the cases cited are not applicable where the building being repaired is used by the owner' other than as a dwelling house.

In Shipp vs. Bordelon, 152 La. 795, 94 So. 399, the court, considering the title and Sections 1 and 2 of the statute, said:

“It is not enough that the employee shall be performing work of the character falling within the designated trades, businesses or occupations, but it must be done ‘in- the course of the employer’s trade,’ etc.”

And conceding that the work being done by plaintiff was of the character falling within the designated trades, and that the defendant was engaged in the business of leasing houses (although the evidence shows that the house which was being repaired was the only real property owned by him other than his dwelling house) the statute does not designate such business as hazardous, and we do not think that, considering the object to be attained in such an occupation, it can be said to be hazardous, even though the owner in the course of time may have the property held for lease repaired.

We are of the opinion that, under the ruling in the cases cited, defendant was not engaged in a hazardous occupation, and the judgment appealed from is affirmed.


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    No. 3065
    Second Circuit
    WINNFIELD FURNITURE COMPANY, LTD., v. OTTO
    (February 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, where not clearly erroneous, is affirmed.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Winn. Hon. F. E. Jones, Judge.

      Action by Winnfield Furniture Company, Ltd., against Paul'Otto.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Eugene Beck, of Winnfield, attorney for plaintiff, appellee.
    Moss & Moss, of Winnfield, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brought suit against defendant for $135.00 on account, the items on which are one coffin for defendant’s wife $75.00, embalming $45.00, and for hearse $15.00. ’

Defendant answered admitting that he purchased from plaintiff a casket for his deceased wife, but alleges he agreed to pay only $45.00 for the same, and that he employed defendant to embalm the remains of his wife and agreed to pay him $45.00 therefor, and admits that defendant carried the remains of his wife in a hearse from his residence to" the railroad station preparatory to its being shipped to Missouri for interment, but denies that he is due plaintiff anything, for the reason that plaintiff failed to properly embalm the body, and that due to plaintiff’s want of skill or neglect in embalming the body it was in bad condition when it reached Missouri, the place of interment, and had to be re-embalmed at an expense of $75.00; and that the handles on the box containing the casket were fastened upside down, so that it could not- be handled, and that the railroad companies at the stations where changes in shipment ■ had to be made refused to receive the remains, and that on one occasion those handling the box dropped it, due to the fact that the handles were improperly fastened on; and further, that the burial of the body was delayed on account of its being necessary to re-embalm it, all of which, it is alleged, caused him great mental pain and anguish, for which he reconvened for damages in the sum of $4050.00, itemized as follows:

Mental suffering, disappointment, mortification and humiliation caused by the fault of plaintiff in failing to properly embalm the body, $2500.00; expenses paid for embalming the body in Missouri, $50.00; mental suffering, vexation and humiliation caused defendant in transit with said corpse, due to plaintiff’s failure to properly prepare the box containing the casket, $500.00; mental- suffering and mortification caused him when the box was dropped, $500.00; and $500.00 damages for delay of the funeral.

The lower court gave plaintiff • judgment for $105.00 and rejected defendant’s reconventional demand; from which judgment defendant, reconvenor, appealed.

It is undisputed that plaintiff sold defendant a casket for his deceased wife, the price of which, plaintiff says, was $75.00. But the testimony shows that the clerk who sold the casket priced it to defendant at $45.00 and that defendant did not agree to pay him more than that; so that the lower court, it seems, allowed plaintiff only $45.00, which was correct.

It is also undisputed that plaintiff contracted to embalm the body for $45.00 and sent 'to Alexandria for a licensed embalmer who, plaintiff contends, properly embalmed it according to contract.

Plaintiff also furnished its hearse and carried the remains to the railroad station for shipment, and while there was no agreement as to what it should receive for such service, the testimony shows that $15.00 was the usual charge, and we think the lower court properly allowed that.

The judgment of the lower court is therefore correct as to the first and last items on the bill, and correct as to the other unless it be held that the body was not embalmed properly.

The testimony shows that Mr. Walshe, the president of the plaintiff company, is a licensed, competent embalmer, but for some reason, not stated, he sent to Alexandria and got Mr. Tannehill to take charge of and prepare the body of defendant’s wife for shipment and final interment in Missouri. Tannehill is a young man, but a licensed embalmer under the laws of the state, and had been engaged in that business in Alexandria for about eight months.

He testified that he embalmed the body according to the approved methods and left it in as good condition as could be expected under the circumstances.

Mr. E. W. Hixon, of Alexandria, was called by plaintiff as an expert. He testifield that he was an embalmer by trade or profession and was licensed and had been so engaged for about eighteen years; that young Tannehill was employed by his firm as an embalmer and that he was competent, had been employed by his firm for about eight months and had done a great deal of work for the firm, and that this was the first complaint ever made as to his work; and he gave it as his opinion that the body was skillfully and properly embalmed, although he did not see it.

The body was embalmed at Winnfield on Saturday night, Tannehill being engaged in the work from about 9:30 to 12:20 next morning. It was shipped out the next morning at about 6 o’clock and reached its destination in Missouri on Monday afternoon. When it reached there the casket was opened and the body found in bad condition, requiring additional attention which was given by ah undertaker there.

The attention of both Tannehill and Hixon was called to this fact, and they were asked to -explain why the body was in bad condition when it reached Missouri if it had been properly embalmed at Winnfield before shipment. They explained that in cases of this kind, where the cause of death was influenza and pneumonia, it was almost impossible to get perfect results, and that the best experts could not be sure, under like conditions, that the body would remain preserved as they left it, due to certain chemical changes which sometimes take place in human bodies after being embalmed where the cause of death is influenza and pneumonia following childbirth, as in this case.

Mr. Hixon, as an expert, testified that reputable embalmers do not and cannot guarantee results; that during his experience, covering many years, he had on numerous occasions been called upon to administer additional treatment to bodies already embalmed; that such was not unusual and not unexpected.

As defendant’s reconventional demand is based solely upon the proposition that the body of his wife was not properly and skillfully embalmed, the burden of proof was upon him to show that fact.

He introduced the testimony of Mr. Starnes, Mr. Fox and Mr. Bear, all of Missouri, taken by commission. Starnes and Fox are morticians, and testified that the body was in bad condition when it reached there, and, further, that if the body had been properly embalmed it would not have been in such condition when they saw it. Mr. Bear was Starnes’ helper, but seemed to know but little. We note that cross-interrogatories were propounded to these witnesses but not answered. One of the cross-interrogatories propounded was this: “Is it more difficult to embalm a corpse who died from pneumonia than from any other cause?” As stated, .this was not answered.

It is not shown that Starnes and Pox were aware of the disease from which Mrs. Otto died. Both Tannehill and Hixon testified that it is more difficult to embalm bodies where the cause of death is influenza or pneumonia and that it is frequently impossible to get perfect results where either of these diseases caused the death.

The testimony does not satisfy us that plaintiff was negligent or unskillful in its handling of the body, and reconvenor’s case must therefore fall on that point.

The testimony shows that at least one of the handles on the box containing the casket was fastened upside down. That is a trifling matter which could have caused no injury.

Having reached this cqnclusion, it is not necessary, of course, to discuss the question of damages. However, on the question of mental suffering and 'humiliation, which is the only basis for the claim for damages, defendant made rather a poor showing. When asked if the letting of the box fall by the railroad employees caused him “mental pain and anguish,” he answered: “I think so.” And he was asked: “When you got to Springfield, Missouri, was the condition of your wife’s body in such a condition to have a mental effect on you?” and he answered: “Well, it didn’t help me any.” Asked if the delay in burial had any mental effect on him, he said: “Yes, I think so.”

We cannot say that the judge of the lower court manifestly erred in his judgment, and it is affirmed with costs.


text:
    No. 3011
    Second Circuit
    RICHEY v. BRASHER

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles — Par. 4 (b).
    One who drives into another street at an intersection is not negligent if the only vehicle visible on the street at the time is a truck about one-half a block away.
    2. Louisiana Digest — Automobiles — Par. 4 (a), 8.
    Where, although there was conflicting testimony, the preponderance of the evidence of the position of the automobiles and the marks on the street after the collision show conclusively that defendant was driving at an excessive rate of speed and that plaintiff was on the right side of the street when the collision occurred, the defendant was negligent and plaintiff was not negligent.
    Appeal from the Ninth Judicial District Court of Louisiana, parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by S. L. Richey against Essex S. Brasher.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Bruton T. Dawkins, William C. Roberts, of Alexandria, attorneys for plaintiff, appellee.
    T. A. Carter, of Alexandria, attorney for defendant, appellant.
   WEBB, J.

This action was brought by the plaintiff, S. L. Richey, against the defendant, Essex S. Brasher, to recover damages to an automobile owned by plaintiff, alleged to have resulted from the negligence of the driver of an automobile truck owned by defendant' in driving the truck into collision with the automobile.

The defendant answered, denying • any negligence on the part of the driver of the truck and alleged that the collision was due solely to the negligence of the plaintiff, and reconvened for damages to the truck.

On trial, judgment was rendered in favor of the plaintiff as prayed for, and defendant appeals.

The collision occurred in the city of Alexandria on Gould Avenue, which is approximately fifty feet in width, and runs east and west, at a point east of the intersection of Florence and Gould Avenues, where Bolton Avenue, which is approximately sixty feet in width, opens into Gould Avenue. The truck was being driven east on Gould Avenue by Jesse Pryor, a youth about seventeen years of age, and the automobile driven by plaintiff, a man of mature years, came into Gould Avenue from Bolton Avenue, turning to proceed west on Gould Avenue.

The plaintiff stated that when he came to Gould Avenue he was driving at a moderate rate of speed and that he observed the roadway and not noticing any vehicles thereon, except a truck to the west about half a block away, he drove from the right side of Bolton Avenue into Gould Avenue, and when he had reached a point about the center of the street he observed the truck, which he had previously noticed approaching from the west, coming at a very fast speed, and the driver not paying any attention to the roadway, and realizing the danger of a collision, he attempted to avoid the collision, without success; and the testimony of plaintiff’s wife, who was riding in the automobile with him, was substantially to the same effect as to the speed of the automobile and the driver of the truck not paying any attention to the way; and plaintiff also offered evidence that the driver of the truck had immediately after the collision admitted that he was driving fast and not paying attention, and also evidence of the situation after the collision that the automobile at that time was within three or four feet of, and parallel with, the curb on the right-hand side (west) of Gould Avenue, and that the front of the truck was practically against the rear fender of the automobile, and also evidence as to the location of debris, or parts of the vehicles, broken at the time of the collision, and testimony as to marks made on the surface of the street by the tires of the vehicles, tending to show the location of the cars with reference to the center of the street at the time of the collision.

The defense was that the plaintiff had driven onto Gould Avenue at a rapid rate of speed and also “cutting the corner,” or from the left side of Bolton Avenue, in violation of the traffic laws, and came upon Gould Avenue in such close proximity to the truck, which was on the right side of Gould Avenue, east, that the driver of the truck was unable to avoid the accident, and in support of the defense, the testimony of four witnesses, including the truck driver, who claimed to have seen the collision, was offered, as well as testimony tending to show that plaintiff had, when approaching Gould Avenue, driven at a fast speed, and also evidence of marks on the surface of the street and the position of articles thrown from the truck tending to show that the collision had occurred on the left side of Gould Avenue, west.

The defendant urges that the court erred in failing to give due credence to the four witnesses of the defendant who claimed to have seen the collision, especially in view of the contention that the physical facts, marks on the street, and position of articles thrown from the truck, at the time of the collision, show that the collision occurred on the left side of Gould Avenue, west.

The defendant does not pay much attention to the evidence of the plaintiff relative to the driver of the truck not being attentive to the way, a circumstance, if true, which of itself would be sufficient explanation of the accident, and warrant the judgment in favor of the plaintiff, unless it appeared that plaintiff had been negligent and that his negligence had contributed to the collision, and as we find that the evidence as to the claim that the driver of )the truck was not paying attention to the roadway, is clearly in favor of the plaintiff, we are of the opinion that it clearly appears that the driver of the truck was negligent, and, considering that fact, it might be said that the only question further to be determined relates to whether or not the evidence shows that the plaintiff was negligent, and if so whether his negligence contributed to the collision.

The plaintiff’s testimony shows that before driving onto the street he had observed the roadway, and that at that time the only vehicle on the street was a truck at a distance of a half a block, and we do not think that plaintiff’s testimony shows that he was negligent in driving onto the street, as the distance which he would have had to traverse would not have been over twenty-five or thirty feet in order to clear the way for the truck, and the evidence of the defendant may be considered with the purpose of showing that plaintiff did not drive upon the street as he claimed.

Among the four witnesses called by defendant, who claimed to have seen the collision, was a brother of the' driver of the truck, who claimed that he and his aunt were in an automobile parked at some point on Florence Avenue, and while he in a manner attempted to tell the speed of the cars and the positions as they approached the point of collision, on further examination he stated that he did not notice either of the cars until they ran together; and the testimony of another of the witnesses, who claimed to have seen the collision from where his car was parked at the northwest corner of the intersection of Gould and Florence Avenues, was of the same tenor, indicating that they had at least confused their impressions with the facts of which they had knowledge.

“Courts are unwilling to rest their judgments on the testimony of witnesses who are incapable of distinguishing between the facts which are within their knowledge and those whose existence, without such knowledge, they are willing to take for granted.” Succession of King, 124 La. 805.

The driver of the truck stated that he was driving on the right side of Gould Avenue, east, at a speed of about twelve or fifteen miles per hour, and that when he arrived a short distance below the intersection of Florence and Gould Avenues, which was approximately thirty-five feet from the point where Bolton Avenue opened onto Gould Avenue, he applied his brakes in apprehension someone would “cut the corner” at Bolton Avenue, and that very soon thereafter the plaintiff’s car came onto Gould Avenue “cutting the corner” at Bolton Avenue at a rapid rate of speed and in such close proximity to the truck that he was unable to avoid the collision.

The evidence shows that the left front wheel of the truck struck the automobile on its right side at the running hoard just to the rear of the front fender and drove through the running board to the rear fender, indicating that the truck was being driven at considerable speed at the time of the collision, which should not have been the case if he had applied his brakes at the time he stated, but if the driver’s testimony as to his actions was in conflict with the indications, he stated that the plaintiff had “cut the corner” at Bolton Avenue, and. his testimony as to that was supported by that of his aunt, who was with her nephew in the automobile parked on Florence Avenue, and while there 'is some conflict between her testimony and the testimony of her nephew who was in the car with her, the conflict not being material, we may concede that the testimony of the driver of the truck and his aunt was in conflict with the testimony of the plaintiff as to the manner in which plaintiff drove onto the roadway.

The evidence, however, shows conclusively that the debris from the cars when they collided fell on the right of the center of Gould Avenue, west, and that the automobile of plaintiff was near the curb on that side of the street, and although there is great conflict in the testimony as to the location of the marks on the surface of the street, the preponderance of the evidence shows that most of the marks were beyond the center of the street from Bolton Avenue, and if there were any marks to the left of the center of the street, we are of the opinion that the evidence showing that the truck had been turned half-way around by the collision, would account for such marks, as well as for the articles which were in the truck being thrown to the left of the center of the street, and we find that the physical facts support the testimony of the plaintiff, showing that the collision occurred to the right of the center of the street, rather than to the left as claimed by defendant, which we think supports the testimony of the plaintiff and his wife as to the manner in which plaintiff drove onto the street, and warranted the judgment in plaintiff’s favor, and it is therefore affirmed.


text:
    No. 3010
    Second Circuit
    PHILADELPHIA STORAGE BATTERY CO. v. BATTERY SERVICE, INC.
    (February 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, where not manifestly erroneous, are affirmed.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Philadelphia Storage Battery Company against Battery Service, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    White, Holloman & White, of Alexandria, attorneys for plaintiff, appellee.
    Lamar Polk, of Alexandria, attorney for defendant, appellant.
   WEBB, J.

This action was brought to recover judgment on an open account, for electric batteries sold defendant and for the amount of a freight bill paid by plaintiff on a . shipment of batteries ordered by defendant and refused to be accepted, and in answer defendant (admitted the account, denied liability for the amount claimed for freight, and alleged that it was entitled to credits on the account for items listed as discounts due defendant on purchases made subsequent to the date of the account, and for batteries sold by defendant to dealers subsequent to such date, and a claim, for freight on shipments, and replacements, aggregating one hundred and forty-one and 08-100 dollars.

On trial judgment was rendered in favor of the plaintiff for the amount of the account and in favor of the defendant for credits amounting to sixty-eight and 04-100 dollars, for discounts on batteries resold by defendant to dealers, as shown by statements Nos. 4, 8 and 9, filed by defendant, from which judgment defendant appealed, and plaintiff has answered the appeal, praying that the judgment be amended so as to allow the claim for freight alleged to have been paid by it and rejecting the credits claimed by defendant.

It appears that at the time the open account sued up op was made, defendant-had been purchasing batteries from plaintiff under an agreement by which a discount of five per cent was allowed where its account for goods purchased during the month was settled on or before the 10th of the succeeding month, and where batteries were resold by defendant to dealers an additional ten per cent on the price of the batteries sold would be allowed when reports of such sales were timely made, and that the freight on certain types ‘ of batteries would be paid by the shipper, but it is claimed that subsequently the agreement was modified, so as to allow the discounts on all purchases to be credited on the past due account, and that freight would be paid by the shipper on all batteries purchased.

We do not think that the evidence establishes that there was any subsequent agreement as claimed by defendant, but under the original agreement defendant was entitled to an allowance for discounts on batteries resold to dealers, and although the evidence is lacking in certainty as to when the reports were made on the sales of batteries to dealers, the manager of defendant company testified that he had made reports of such sales, and we cannot say the allowance of the claim for discounts on such sales is manifestly erroneous, but we do not think any of the other claims, as for cash discounts, freight or replacements, should he allowed under the vague and indefinite evidence offered which does not show that such discounts were not made on the drafts attached to the bills of lading or that the freight was paid, or that the replacement charges were authorized.

The plaintiff’s evidence as to freight bills alleged to have been paid by it, is also indefinite, and fails to show the order or time of shipment, and we cannot say that the court was in error in refusing to allow plaintiff to recover on the evidence submitted.

The judgment is therefore affirmed.