text:
    No. 10,750
    Orleans
    RICHARDSON, Appellant, v. HENDERSON SUGAR REFINERY CO.
    (March 14, 1927. Opinion and Decree.)

      (Syllabus ly the Court.)

    ON MOTION TO DISMISS APPEAL
    1. Louisiana Digest — Appeal—Par. 474, 475, 477, 483, 518.
    It is appellant’s duty to lodge in the appellate court a complete and certified transcript within the legal delays and when he knowingly files an incomplete transcript and on the same day obtains an order from this court for further time to complete the transcript, but fails to do so within the extension and also fails to ask for further time, appeal will be dismissed.
    Appeal from Division “E”, Civil TYstri't Court. Hon. Wm. H. Byrnes, Judge.
    Action by Edward Richardson against Henderson. Sugar Refinery Company.
    There was judgment for defendant and plaintiff appealed.
    Appeal dismissed.
    Stanley McDermott, of New Orleans, attorney for plaintiff, appellant.
    William H. Norman, of New Orleans, attorney for defendant, appellee.
   JONES, J.

On September 24th, plaintiff and appellant was granted an appeal returnable to this court on October 21, 1926, and on that day was granted, by this court, an extension until December 21, 1926, because the transcript had not been completed by the clerk below.

On December 21, 1926, an incomplete transcript was filed in this court by the apppellant and on the same day he was granted an extension until January 21st to file the missing portions.

As nothing further had been done, defendants and appellees on January 27th filed a motion in this court to dismiss the appeal on the ground that the plaintiff had failed to file in this court on or before the return day, January 21, 1927, the testimony of three witnesses, which had been omitted from the transcript when it was brought up on December 21st and ' had also failed to obtain a further extension of time.

Though this court is always reluctant to dismiss an appeal, it must comply with the mandates of the law when they are clear and unambiguous, and appellant has entirely failed to comply with their manifest requirements.

Both Art. 898 C. P. and Act 229 of 310 (amended by Act 265 of 1918) provide certain remedial steps for completing a transcript, but appellant by his failure to apply to this court for certiorari and to comply with the requirements of the statute has left us no alternative but to dismiss the appeal, for appellant must be clear of fault.

Posey vs. Mrs. Caldwell, 3 La. App. 553.

Hoover vs. York, 33 La. 653.

Lobdell vs. Clark, 35 La. Ann. 1200.

Selber vs. Young, 109 La. 1080, 34 So. 95.

For above reasons the appeal is dismissed.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 10,719
    Orleans
    DUNCAN v. SCHARTZENBURG, Appellant
    (March 14, 1927. Opinion and Decree.)

      {Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    On question of fact the judgment of the lower court "will be affirmed unless clearly erroneous.
    Appeal from First City Court, Section “A’'. Hon. W. A. Bahns, Judge.
    Action by Julius J. Duncan against W. J. Schartzenburg.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. J. Martin, of New Orleans, attorney for plaintiff, appellee.
    McGiehan & Strauch, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff claims as follows:

(1) Alleged work on the service

station at Bruxelles and Gentilly Road __________________________________$200.00

(2) Salary for 3 weeks as manager

of service station at $35.00 per week ............... 105.00

(3) Value of certain articles ille-

gally kept by defendant_______ 27.85

Total____________________________________$332.85

In order to obtain jurisdiction of City Court, claim was reduced to three hundred dollars ($300.00).

Defendant answered, denying all the claims, but averring that he held plaintiff's property subject to his order. He also filed reconventional demands for two hundred, twenty-nine and. 75-100 ($229.75) dollars, which were properly dismissed below and are not urged here.

The judge of the lower court gave judgment for the articles claimed; for one-half of the profits of the service station, amounting to fifty-seven and 47-100 ($57.47) dollars; and for his work on the service station, two hundred dollars ($200.00).

Defendant has appealed suspensively to this court.

As plaintiff’s property has been returned and as the amount allowed for services as manager of the service station is satisfactory to both, the value of plaintiff’s work is the only item before us. ,

In his argument and brief in this court defendant admits owing fifty-six and 40-100 ($56.40) dollars.

We have carefully examined the voluminous evidence on this point and we can not say that the estimate placed thereon by the lower judge is clearly erroneous.

For above reasons the judgment is affirmed.


author: REYNOLDS, J.

text:
    No. 2875
    Second Circuit
    McEACHERN v. PINE WOOD LBR. CO., LTD.
    (Feb. 24, 1927. Opinion and Decree.)

      (Syllabus t>y the Court)

    1. Louisiana Digest — Master and Servant— Par. 160 (j).
    An employer seeking to escape liability under the Workmen’s Compensation Act for an injury suffered by his employee on the ground that at the time of the accident causing the injury, the employee’s services had been transferred to a new master, must show that the employee had consented to the change of masters and had submitted himself to the control of the new. employer.
    Erie Ry. Co. vs. Jackson, 91 At'l. 1035.
    2. Louisiana Digest — Master and Servant— Par. 154, 159, 160 (i).
    Where the usefulness of a physical function of the employee was seriously, permanently impaired and he is thereby temporarily totally disabled to do work of a reasonable character, the fact- that he might have recovered compensation under clause (a) of subsection 1 of section 8 of the Employers’ Liability Act as for temporary total disability will not preclude him from recovering compensation under clause (e) of the same subsection of the act as for serious, permanent impairment of a physical function.
    Matthew Burton vs. Kaucher, Hodges & Co., 3 La. App. 74.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster. Hon. John S. Richardson, Judge.
    Action by Leonidas L. McEachern against Pine Wood Lumber Company, Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. H. McEachern, of Homer, and Clifford E. Hays, of Mind.en, attorneys for plaintiff, appellee.
    White, Holloman & White, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit under the Employers’ Liability Act to recover compensation, for four ribs broken and medical expenses incurred.

Plaintiff alleged that while in the employ of defendant and being transported from his home to his work in an automobile owned and operated by it, he was thrown from the automobile to the ground and thereby sustained a fracture of six ribs on his left side toward the rear; that be was thereby temporarily totally disabled for nine weeks and his back and left side seriously, permanently impaired.

He also alleged that in consequence of the injury he had been compelled to incur medical expenses to the amount of $132.13.

He alleged that at the time of the accident he was earning $3.00 per day or $18.00 per week.

He prayed for judgment for the amount of the medical expenses and for 65 per cent of the wages he had been earning for 100 weeks with interest and costs.

Defendant deniéd that at the time of the accident plaintiff was in its employ and alleged that he had previously left its employ and entered that of one J. F. Giles.

It is admitted that the automobile from which plaintiff fell was its property, but alleged that at the time it had been borrowed for the use of J. F. Giles and was not being operated by defendant’s servants.

On these issues the case was tried and there was judgment in favor of plaintiff for $132.13 medical expenses and compensation. at the rate of $11.70 per week for 100 weeks with legal interest on each payment from the time it became due and all costs and defendant appealed.

OPINION

The first question to be determined is, was the plaintiff in the employ of the Pine Woods Lumber Company, Ltd., at the time of the accident or in that of J. F. Giles.

Plaintiff testified, pages 10, 13, 14, 15, 19, 21, 22, 23, 24, 25:

“Q. Well, whose car was this that you were riding in?

“A. I suppose it was the Pine Woods Lumber Company.

“Q. Who were you working for at that time? 1

“A. I was working of the company.

“Q. What company?

“A. Pine Woods Lumber Company.

“Q. What kind of work were you doing?

“A. Repair work.

“Q. Well, was that carpenter work or—

“A. (Interrupting) Yes, sir; carpenter work.

“Q. Had you recently been working on the mill shed at Springhill any time just previous to this accident?

“A. Yes, sir.

* * *

“Q. What kind of work have you done since this accident?

“A. I have been working in a store for Mr. M. T. Brown at Springhill.

“Q. Does it pain you to do any strenuous work of any kind?

“A. Well, heavy lifting or something like that it hurts me.

“Q. Now, the day that this accident occurred, who was driving the truck?

“A. Mr. McDonald.

“Q. Was he employed by the Pine Woods Lumber Company?

“A. I suppose he was, yes, sir.

“Q. Had it been their custom to carry you all into your work and bring you back?

“A. Yes, sir.

“Q. And as I understand, you were going out to this job to work in this truck at the time?

“A. Yes, sir.

“Q. I will ask you how did they pay you for your work, whether it was by check or money?

“A. Why they paid by money in an envelope. I may have one in my pocket. Something like that. (Witness hands envelope to counsel.)

“Q. They put the money in an envelope and paid you?

“A. Yes, sir.

“Q. Where did you get this pay?

“A. I got it from the Pine Woods Lumber Company’s office.

“Q. There in Springhill?

“A. Yes, sir.

“Q. I will offer you a document marked P-3 for identification and I will ask you to state what it is?

“A. State what this is?

“Q. Yes.

“A. Why this here is the envelope that they use to pay off hands with; put money in it and pay off hands with, with the company’s name above and the name of the person that it belongs to below and the amount and the date.

“Q. Did you receive that document marked P-3 from the Pine Woods Lumber Company’s office?

“A. Yes, sir.

“Q. When did you get that?

“A. I got this — well it states 8-31-1925.

“A. Was that after you were hurt?

“A. Yes, sir.

“Q. Well, for what work did you get this money that was in this envelope? What was it paid for?

“A. It was the last work that I did for the company.

“Q. Where were you going to work?

“A. We were going out there on the house.

“Q. Whose house was that?

“A. Pine Woods Lumber Company, I suppose.

“Q. Where was this house you were working on; how far from town?

“A. It must have been something like one mile and a half or three-quarters, something like that.

“Q. Where did you say that you are working now?

“A. Mr. Brown’s; M. T. Brown.

“Q. What does he do?

“A. He has got a mercantile business.

“Q. What are you, a clerk in the store?

“A. Yes, sir.

“Q. What are you getting from Mr. Brown?

"A. What am I getting?

“Q. Yes. Answer the question.

“A. Well, he is just paying me sixty ■dollars ($60.00) per month.

“Q. Sixty dollars ($60.00) per month?

“A. Yes, sir.

“Q. Does he give you any concessions of any kind?

“A. Any which?

“Q. Does he let you buy groceries there at cost?

“A. Yes, sir.

“Q. When was. it that you started to work there?

“A. Last October. I started there the first of last October.

“Q. You get stuff at cost. Now, how much do you save over what you would spend if you bought elsewhere?

“A. Well, I reckon twelve dollars ($12.00) or fifteen dollars ($15.00) per month saving on what I buy.

“Q. Mr. McEachern, who hired you to work for the Pine Woods Lumber Company?

“A. Mr. Dean; D. A. Dean.

“Q. Was he employed by Pine Woods Lumber Company?

“A. Well, I guess so. I don’t know, I guess so, guess he is.

“Q. He has charge as foreman of the carpentering around the mill, hasn’t he?

“A. Yes, sir.

“Q. Before you started on this house, where were you Working?

“A. We were putting up a building right there in town.

“Q. Company building?

“A. Yes, sir.

“Q. In the quarters?

“A. Yes, sir.

“Q. Mr. Dean had charge of you all when you were out on this house where you were going when you got hurt, did he not?

“A. Well, he went with us out there on the job and told us what he wanted done.

“Q. You all worked under instructions from Mr. Dean?

“A. Yes, sir.

“Q. And also when you were working there on the mill — on the houses at the mill — you were working under instructions of Mr. Dean?

“A. Yes, sir.

“Q. Mr. McEachern; it has been testified to here that you were told that this house was the property of Mr. J. F. Giles, that there was no policy. Do you remem-

tier any such statement being made to you?

“A. No, sir, I don’t remember any such statement.

“Q. I will ask you who you were working for, Mr. McEachern?

“A. I was working for the Pine Woods Lumber Company.”

J. T. McEachern testified, pages 38 and 39:

“Q. Whose house was that?

“A. Mr. Giles or the company’s.

“Q. It was Mr. Giles’ house, was it not?

“A. I don’t know whether it was; it was the company’s land.

“Q. Whom did you understand that you were working for?

“A. Mr. D. A. Dean hired me and he was working for the company.

“Q. Pine Woods Lumber Company?

“A. Yes, sir..

“Q. And your understanding was that you were employed by the Pine Woods Lumber Company?

“A. Yes, sir.”

Will White testified, pages 40, 41, 42:

“Q. Where were you living during August, 1925?

“A. Springhill.

“Q. What were you doing at that time?

“A. I was working for the company.

“Q. Who were you working under?

“A. Mr. Dean.

“Q. Who employed you to work out on this house where Mr. McEachern was working and where he was going to when he got hurt?

“A. Well, I guess Mr. Dean did.

“Q. Well, don’t you know that he did?

“A. Well, I was working for the company when he went to work for the company.

“Q. You were working for them then when he went to work for them as foreman?

“A. Yes, sir.

“Q. Who transferred you to this house there in town?

“A. Mr. Dean.

* * *

“Q. Mr. White, when you were working on this house with Mr. McEachern — I mean that Mr. McEachern, was going to when he got hurt — did you receive any orders from him as to what to do, as foreman?

“A. No, sir.

“Q. Who was foreman on the job?

“A. Mr. Dean.”

D. A. Dean testified, pages 44, 47, 48, 51, 52, 53, 54, 55, 58:

“Q. Where do you live, Mr. Dean?

“A. I live at Springhill, Louisiana.

“Q. By whom are you employed?

“A. How is that?

“Q. By whom are you employed?

“A. Pine Woods Lumber Company; motor department.

“Q. Were you ever employed as in charge of the carpenter gang there?

“A. I was rent foreman there for about twenty-six months.

“Q. Rent foreman?

“A. Had charge of the buildings and lights and water department. I looked after the rent collections and such like as that.

“Q. You had charge' of the repair and building of the houses?

“A. I did.

“Q. You were general foreman?

“A. I was general foreman of the work.

“Q. Of the carpenters?

“A. There would be some times that I would have to split my gang and at times I would hire three gangs at once, then maybe I would get one of the boys to go ahead with the work.

“Q. The work on this house was being done for the Pine Woods Lumber Company or for Mr. Giles?

“A. Mr. Giles.

“Q. How did you keep that, what record did you keep of that?

“A. Well — I had a time book in the office, in the time-keeper’s office, in which I kept a true record of all work I did. I had to look after all the water and the lights and the house work around there and had a great deal of plumbing done, so by me having charge of the work why the citizens around there would look to me to have all their work done and—

“Q. Go ahead.

“A. And so I was doing this work for Mr. Giles out there. He was away from home. I had a man over there in the camps that needed the house, that I had to give a house; it was our timber man, so Mr. Giles was going away and he asked me to fix up this house over there for him.

“Q. Now, when you went out there to the Giles job the first day, you say you went along? '

“A. The first day we went over there.

“Q. Who was in the party?

“A. Well, I think Mr. White, Mr. Mc-Eachern, and his boy, Mr. McDonald, John Dyer and myself. There was some went in my car, some in the truck and some in other cars, and so when we got there I just made the remark to the boys, ‘Now you boys want to be careful out here and none of you get hurt’; I says ‘This property belongs to uncle Jim’, and of course they knew who I was talking about.

“Q. Who is uncle Jim?

“A. Mr. Giles.

“Q. Did you or not say that to Mr. Mc-Eachern, the plaintiff in this case?

“A. I didn’t just personally tell any one; I just spoke to all of the boys; I said that there was no polly on that job.

“Q. No what?

“A. No polly.

“Q. -What did you mean?

“A. I meant if any one got hurt he would not get anything for it.

“Q. No compensation.

“A. Yes. We call that polly. They knew what I was talking about.

“Q. Did Mr. McEachern make any objection to going to work when you made that statement?

“A. Not as I know; I don’t guess he did.

“Q. Well, did he?

“A. No; no, he didn’t.

“Q. Did you ever say anything to him about this being the old man’s job?

“A. Sure; they all knew it.

“Q. I am not talking about what they knew; I am asking you about what you told Mr. McEachern?

“A. I told him the second day. I split a bunch of men and was late about getting out there on the second morning, so I told him, I says T am taking part of these boys off now’, and I says ‘You boys rush this job there’, I says ‘Uncle Jim is gone and let’s make a showing when he gets back’. I says ‘Take these boys and go after it out there and get it done for me’.

“Q. Was anything said at that time about there being no insurance and about their being careful?

“A. Not that morning; that was the second morning.

' “Q. Now, how did you separate or keep separate the work that was done for Mr. Giles and that done for the Pine Woods Lumber Company?

“A. Well, I had a book there in the time-keeper’s office that had Mr. Giles’ name on it and what place it was; so every fellow’s name was right under this place. So this job would be charged to Mr. Giles and we kept it separate as to which place it was being charged to, whatever place it was. Then when I got this job done I totalled the whole amount up and turned the bill in to Mr. Mullens and he turned in Mr. Giles.

“Q. What Mr. Mullens did I don’t want you to testify to. It is only what you know, Mr. Dean, that is what I am trying to get at. Did you say anything to Mr. McEachern about this being a private job and to fix it so that the expense would not be too heavy on Mr. Giles.

“A. Sure did.

“Q. What did you say to him?

“A. I told him ‘This here job out here belongs to Uncle Jim and let’s make a showing out here and get it finished before he gets back’. There was two rooms to put to it and other work around there.

“Q. Who was the straw boss or the foreman on the job out there?

“A. Well, I told him to look after it for me and I also had another one.

“Q. Another what?

“A. I say that I had another straw boss, but it was on another job. «

“Q. I mean on this particular job?

“A. He was the one I was looking to for my work.

“Q. He was in charge there?

“A. Yes, sir. I expected him to be, anyway.

“Q. Did you tell him so?

“A. Sure did.

“Q. Well, if yoú don’t remember, all right.

“A. I say yes, I told him, yes, sir.

“Q. Now, you say that you turned this time to the bookkeeper of the Pine Woods Lumber Company?

“A. I turned it into the time-keeper’s office.

“Q. That is the office of the Pine Woods Lumber Company?

“A. Yes, that is where I keep my books.

“Q. Now, how were you working, on a percentage basis or by the day?

“A. Well, I was working by the month.

“Q. Working by the month.

“A. Yes, sir.

“Q. Then you charged the Pine Woods Lumber Company so much per month for foreman or superintendent of the work that you had in charge and then you charged Mr. Giles for looking after the jobs that he personally had?

“A. No; I charged Mr. Giles up with this work on this job and then the Pine Woods Lumber Company got paid for my services that I turned to Mr. Giles.

“Q. You did not collect, then, any pay from Mr. Giles for the work that you did out there?

“A. Not for myself; he paid the bill for whatever it was that the labor came to.

“Q. Do you know where Mr. McEachern got his pay and how he got it?

“A. At the mill office.

“Q. At the mill office?

“A. Not the mill office; the timekeeper’s.

“Q. Time-keeper for the Pine Woods Lumber Company?

“A. Yes, sir.

“Q. He got it in an envelope with the Pine Woods Lumber Company’s name stamped on it?

“A. Sure did.

“Q. That is the way that you men got your pay?

“A. No, sir; I didn’t.

“Q. The carpenters?

“A. The daily men did, yes, sir.

“Q. Mr. McEachern did not hire to Mr. Giles to do any work?

“A. Did he which? Mr. McEachern was working under any instructions.

“Q. You were working under the instructions of the Pine Woods Lumber Company?

“A. Mr. Giles.

“Q. And he was working under the instructions of the Pine Woods Lumber Company?

“A. He is president, superintendent, manager. I was working for him; I did what he said.

“Q. He is the whole cheese up there, in charge of the thing?

“A. Yes, sir.

“Q. You are still employed by the Pine Woods Lumber Company?

“A. I am employed by the Pine Woods Lumber Company in the motor department.

“Q. Well, it is all one and the same thing?

“A. Yes.

“Q. Mr. Giles is the head of the whole outfit?

“A. Yes.”

J. F. Giles testified, page 75:

“Q. Mr. Giles, in taking the crew from the company’s business and putting it on your work, was any notice ever given the men that that was to be done or did you just go ahead and draw the pay rolls through the company? '

“A. I never told them to go on with the work; the foreman told them.”

From the above evidence we are convinced that plaintiff at the time of the accident had been employed by Mr. Dean, the foreman of the defendant company, to work for said company and that he had not been notified that he was no longer an employee of the defendant company; that he received his pay from the defendant company and was not under the direction of Mr. Giles, but under the direction of Mr. Dean.

Mr. Dean testified, pages 57 and 58:

“Q. Mr. Dean, you say that Mr. Mc-Eachern was supposed to be foreman on that job?

“A. He was the man that I was looking to for the work up t/uere when I was away, but when I was there, why, I was boss.”

In Erie Ry. Co. vs. Jackson, 91 Atlantic 1035, the court said:

“In order to bring the case within the principle of Delaware, Etc., R. R. Co. vs. Hardy, 59 N. J. Law, 35, 34 Atl. 986, the plaintiff in certiorari must show that the servant has in fact consented to the transfer of his services to the new master and accepted him as his master pro hac vice, and that he has éntered upon the service and submitted himself to the direction and control of the new master.”

Under the above quoted evidence and law we are convinced that at the time of the accident to and injury of plaintiff he was in the employ of the defendant company.

Defendant contends that plaintiff did not suffer any injury compensable under clause (c) of subsection 1 of section 8 of the Employers’ Liability Act; that if entitled to compensation at all it is under clause (a) of the same subsection; and that the evidence shows that since October 1, 1925, he had been earning sixty dollars- per month or more as a clerk in a grocery store, and that he was only temporarily totally disabled for nine weeks.

Plaintiff introduced in evidence an x-ray photograph of his body made on September 3, 1926, by Dr. S. C. Barrow, more than a year after the accident, in which picture it can plainly be seen, even by a layman, that the broken end of the eighth rib is not in juxtaposition with the remainder of this rib.

. Doctor Barrow testified, page 4:

“Q. I, will ask you to read that picture made on September 3, 1926?

"A. Having the history of the case in mind and remembering that our previous examination did not include the upper ribs, we examined his whole chest and made a film which is number 14984. This film shows an old fracture of the seventh, eighth, ninth and tenth ribs about two inches from the spinal attachment, with good union but slight overlapping. The seventh, eighth and • ninth also show fracture about six inches from the spinal attachment, that is, they were fractured twice. The eighth rib shows separation at the point of fracture with no union.

“Q. Doctor, I believe you have testified that rib number eight was not reunited in the picture made on September 3rd?

“A. Yes; the eighth dib shows incomplete union.

“Q. Now, doctor, in a condition of that kind, would there be any pain or suffering now by virtue of those ribs not being united?

“A. I would reasonably expect that there would be.

“<5. You think that, why do you think so, doctor?

“A. Because the fracture points are not in apposition; not correctly in line; and that portion of the anatomy is in constant motion with respiration; it is in close proximity to the sensitive nerve, the intercostal nerve, and we would naturally expect some pain.

“Q. It is possible then for it to last a long time?

“A. Yes.”

L. L. McEachern testified, pages 12 and 13:

“Q. What is the condition now as to your side in regard to pain? Does it bother you?

“A. When I lift up anything.

“Q. ' Yes?

“A. When I lift up anything, that is, if there is much weight about it, it hurts me, and I cannot lay on that side or bear my weight on it or press against it.

“Q. Does it pain you to do any strenuous work?.

“A. Weil, heavy lifting or something like that, it hurts me.”

Mrs. E. A. McEachern testified, pages 31 and 32:

“Q. Do you remember the occasion of him getting hurt last August, a year ago?

■ “A. Certainly do.

“Q. Did you go to Shreveport with him?

“A. Yes, sir.

“Q. Do you know how long he stayed over there at the sanitarium?

“A. Stayed there eleven days. .

“Q. Now, since he came back, have you heard him complaining of his -side hurting him in any way?

“A. Well, he complains at lifting anything heavy or of lying on his left side at night; he cannot lie that way hut just a little bit. He will have to turn over after he has been on that side just a little bit.

“Q. Do you know what inconvenience he suffered after he came back? I mean in regard to having to have help in any way? Whether he was helpless?

“A. He was helpless.

“Q. How long did he remain that way?

“A. Well, it was a good long time, but just how long I could not say. For several months he could not stoop over to lace his shoes. I would put his shoes on for him and pull them off, because as for stooping he could not do it. I don’t know just how long it was, but it was a good long time.

“Q. Well, does he suffer any inconvenience in bending to lace his shoes at any time?

“A. Yes, sir; I pull his shoes off for him lots of times now. I lace his shoes and pull them off.

“Q. Did you do that before he was hurt?

“A. No, I never did before.”

Under this evidence we are convinced that plaintiff sustained an injury that permanently seriously impaired a physical function, namely, the eighth rib on his left side.

Defendant’s counsel argue with much force and earnestness that plaintiff’s injury was such as to temporarily totally disable him and that if entitled to recover at all it is under clause (a) of subsection 1 of section 8 of the Workmen’s Compensation Act and not under clause (e) of said subsection as for a permanent serious impairment of a physical function.

We held to the contrary in Matthew Burton vs. Kaucher, Hodges & Co., 3 La. App. 74, where we said:

“An injured employee suing under the Workmen’s Compensation Law, Act No. 20 of 1914, section 8, subsection 1 (a) as amended by Act No. 216 of 1924, may recover compensation for and during temporary total disability and after such disability shall have ceased may recover compensation under section. 8 subsection 1 clause (e) of the same act.”

In his petition plaintiff only asked for the amount of expenses he had incurred for medical bills and for sixty-five per cent of the amount of wages he had been earning during one hundred weeks and the amounts so claimed have not been contested.

Under the evidence we see no reason for disturbing the judgment of the lower court as to the amount allowed plaintiff.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 2822
    Second Circuit
    ALEXANDER v. MAGNOLIA PIPE LINE COMPANY
    (November 6, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 154, 159.
    An employee, engaged in a hazardous occupation, who accidentally loses two phalanges of one of his little fingers in the course of his employment, is entitled to recover 65 per cent of the wages he was earning, up to a maximum of $20.00 per week, for a period of ten weeks, under Clause (d) of Subsection 1 of Section 8 of the Employers’ Liability Act.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. — Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Percy N. Alexander against Magnolia Pipe Line Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport', attorneys for plaintiff, appellant.
    Pugh & Boatner, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit to recover compensation at the rate of $20.00 per Week during the iperiod of plaintiff’s disability, not exceeding 300 weeks.

Defendant, in answer, admitted that plaintiff was entitled to compensation at the rate of $20.00 per week for a period of ten weeks as for the loss of two phalanges of the little finger on plaintiff’s left hand, and alleged that it had paid part of that compensation, and it tendered the balance unpaid up to $20.00 per week for a period of ten weeks in open court.

On these issues the case was tried and there was judgment for plaintiff for $20.00 per week for ten weeks, with legal interest, subject to a credit of $157.90 previously paid by defendant to plaintiff, and all costs.

Plaintiff appealed.

OPINION

Plaintiff’s counsel, in their brief, say that' the only question really involved in the case is whether or not the fact that two phalanges of the little finger of plaintiff’s left hand have been cut off makes this a specific injury and bars recovery for a minor injury; and further, that, in deciding the case, the lower court took, as the jurisprudence of 'this case, the case of Edgar A. Odom vs. Atlantic Oil Producing Co., now pending in the Supreme Court on a writ of certiorari granted from the decision of this court.

And counsel cite, in support of their contention in this case, the case of Quave vs. Lott-Batson Lumber Co., 151 La. 1052, the syllabus in which is as follows:

“1. Under Employers’ Liability Act, as amended by Act No. 247 of 1920, Sec; 8, Subd. 1, Pars, (d), (e), where an employee lost three fingers and part' of the metacarpal bones connecting them with the wrist, an allowance for the loss of the metacarpal bones in addition to the prescribed allowance for the loss of the fingers was proper; the total allowance not exceeding that prescribed for the loss of a hand.

“2. Under Employers’ Liability Act,- as amended by Act No. 247 of 1920, Sec. 8, Subd. 1, Par. (e), relative to cases where the usefulness of a member is permanently impaired, compensation was properly allowed for a finger made stiff and useless, though not actually severed or amputated.”

The evidence in this case shows:

Plaintiff, Percy N. Alexander, testified, pages 5, 6, 7, 8, 9:

“Q. Mr. Alexander, you have lost two joints of your little finger on the left hand, is that not correct? •

“A. Ye^s, sir; they have been, taken off.

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“Q. After you had been treated by Dr. Harmon for a while, did you report back to work?

“A. Yes, sir.

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“Q. Did you tell Mr. Carnie that you were all right and ready to go back to work?

“A. I told him the doctor had released me, and I was ready to go back to work.

“Q. And you reported back to duty?

“A. I reported back to duty, yes, sir.

“Q. And he did give you your job back?

“A. Yes, sir.

“Q. What kind of a job did you have?

“A. Driving a combination Fordson caterpillar.

“Q. You drove a tractor — that is exactly the same kind of work you were doing before you got hurt?

“A. Yes, sir, it was the same kind of work.

“Q. And you got exactly the same wages ?

“A. Yes, sir, I guess — well, you say--

“Q. All right, go ahead?

“A. No, sir, there wasn’t any cut in the wages.

“Q. Then how long did you work driving that tractor?

‘‘A. About four days; I think about four days.

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“Q. Did you tell Mr. Carnie you had to 'quit because or on account of your hand ?

“A. I told Mr. Carrie that I would have to quit — let me see — I told him I was getting off the job. I had to quit — I can go into details on that question if you want it.

“Q. Well, what J mean is this: Did you tell him you had to quit because you couldn’t work on account of your hand— did you mention your hand?

“A. No, sir; I told him I wasn’t able to hold down the job.

“Q. Didn’t you tell him the reason you couldn’t hold it down was because you were scared to hold it down?

“A. No, sir.,

“Q. Well, what was the reason?

“A. Well, I told him I was scared off the job, yes,, sir -

“Q. You told1 him you couldn’t hold the job down because you were scared to hold it down?

“A. Not exactly.

“Q. Didn’t you just say that you were scared?

“A. I told him laughingly that I was scared "off the job.

“Q. Didn’t you tell him you were going to leave that tractor while you were alive; that you were afraid every minute that that tractor Was going to kill you?

“A. I sure did. •

“Q. You didn’t say anything about you; hand, did you?

“A. No, sir.”

W. H. Carnie testified, pages 14, 15, 16:

‘‘Q. What, if anything, did he say to you when he first came back?

“A. He told me that the doctor had released him and that he was ready to go to work.

“Q. And you put him to work April 2nd?

“A. Yes, sir.

“Q. What was the character of work you put him to doing?

“A. He drove a tractor for the first day and then took this caterpillar the second day.

“Q. What had he been doing before that?

“A. Driving a tractor.

“Q. You put him back on the same sort of job he was doing before’

“A. On the first day, yes, sir.

■ “Q. On the first day, what sort of tractor was he driving — one like he had been driving or a different kind?

“A. Yes, sir, it was the same identical tractor that he had got hurt on.

“Q. Did he get along all right? .

“Á. He got along as good as anybody could with a tractor in that country.

“Q. Did Mr. Alexander make any complaint to you at any time that he couldn't work because his hand was^ — the condition of it?

“A. None whatever.

“Q. Did you ever hear of that until this suit was brought?

“A. No, sir.

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“Q. Was there any complaint by him ' that he cquldn’t do the work?

“A. No, sir.

“Q. What happened to cause him to discontinue that job?

“A. His tractor got mired, and he told me he speeded up on it as it went straight down, and when the back end went down he jumped off and left it in full gear, and it kept on until it covered itself; and that, he got off of it in full motion and left it and permitted it to bury itself.

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“Q. What reason did he give?

“A. Well, he says, T am going to leave this tractor while I am alive’. He says, ‘I hate to leave you. You are a good square man to work for and you have treated me like a gentleman, but I am afraid of it’. And I said, ‘Well, if you are afraid of it, there isn’t any use for you to work on it any longer’.

“Q. But he didn’t complain of his hand?

“A. Not a bit.

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“Q. Then what did he come back for?

“A. He came back and asked me for a job. I asked him first what he was doing and he said he wasn’t doing anything. And he asked me what I had and I didn’t have any tractor work then and I told him I had some pipe line and ditch digging work, and he said that he would take on some of it, but he never did.

“Q. Did he take on either one of these jobs?

“A. No, sir.

“Q. Did he tell you why?

“A. Yes, he told me that he didn’t want to do heavy work on account of a rupture,

“Q. Didn’t mention anything about his hand, though?

“A. No, sir.”

Doctor W. L. Hammon, the surgeon who removed the two phalanges of plaintiff’s little finger, testified, ©ages 17, 18, 19, ! 20, 21: ;

“Q. Doctor, you are a qualified medical practitioner in the city of Shreveport?

“A. Yes, sir.

❖ * * * '

“Q. Well, doctor, please state what physical impairments or deficiencies this map suffers with at that time insofar as his left hand is concerned?

“A. Well, about the only thing that I can say is that he has lost the two distal joints of his left little finger. He has a flesh scar on the outer side of the left hand about two or three inches long.

“Q. Was there any bony involvement?

“A. No, sir, no more than just these two joints.

“Q. Is there any reason that you know of why this man shouldn’t be able to use his left hand as well as any other man who has lost two phalanges of his little finger?

“A. No, sir.

“Q. Doctor, this joint here, this stub of this little finger, is pretty stiff, isn’t it?

“A. I don’t think so. I -think this joint here is good because there is no injury to this joint here. I just looked at it two or three days ago. This joint there is just as flexible as mine, I think.

“Q. What about the finger next to it? Have you examined that finger?

“A. Yes, sir.

“Q. Did you notice that it had full flexion?

“A. If it didn’t, I don’t know any reason Why. This is just a scar from a flesh wound.

“Q. Doctor, the fact that when he lies down that arm goes to sleep, what does that indicate?

“A. I can’t account for that; nor from his injury, because if the arm went to sleep it could not go to sleep from anything down there.

“Q. Prom that wound that you see there and the scar, don’t you think that could affect this second finger here?

“A. No, this wound over here couldn’t affect this finger because the muscles both to this finger here come from up here; they come right down between the bones.

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“Q. Then this injury that manifests itself here wouldn’t affect any part of the body other than the part you took off in any way?

“A. No — you mean affect the wrist?

“Q. Affect the hand up to the wrist?

“A. No, sir, you can take this finger back here clean off and it wouldn’t affect any part of the body.”

From, all this evidence we are convinced that plaintiff has not suffered the impairment of a physical function and that he' is only entitled to recover compensation for ■ the loss of two phalanges of his little finger, entitling him to $20.00 per week ; for a period of ten weeks. . 1

It is therefore ordered, adjudged and • decreed that the judgment appealed from . he affirmed.


author: CLAIBORNE, J.

text:
    No. 10,385
    Orleans
    PECARARO, Appellant, v. GROVER.
    (February 14, 1927. Opinion and Decree.)
    (February 28, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Landlord and Tenant —Par. 11, 65.
    It is lawful to stipulate in a lease that the lessor shall not be responsible for damages caused by any vice or defect of the leased property.
    2. Louisiana Digest — Landlord and Tenant —Par. 11, 67.
    With such a stipulation in a lease the lessee cannot recover damages against the lessor for injury received from falling plaster.
    3. Louisiana Digest — Landlord and Tenant —Par. 1, 11.
    Such a stipulation is nqt against public policy.
    Appeal from Civil' District Court: Hon. Mark M. Boatner, Judge.
    Action by Mrs. Cath. Pecararo, Widow * V. Graffato, against John J. Grover.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    ' E. M. Stafford, H. W. Robinson, T. B. Freeland, of New Orleans, attorneys for plaintiff, appellant.
    E. M. Cahn, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit by a lessee against her lessor for injury suffered from falling plaster.

The plaintiff alleged that, according to the lease annexed to the petition, she leased from the defendant the premises, 801 Magazine street, and proceeded to occupy the same; that on the morning of July 16, 1925, she was asleep in her bed when a large portion of plaster fell from the ceiling over her bed and struck her with great force upon her head, shoulders and side, causing her much injury and suffering, in consequence of which she claims $10,085.00 damages.

The defendant filed the exception of estoppel and no right or cause of action upon the face of the lease and petition.

The exception of no cause of action was maintained and plaintiff’s suit was dismissed.

Plaintiff has appealed.

The defense is based upon the following clause of the lease;

“No repairs shall be due the lessee, ex? cept such as may be needed to the. roof or rendered necessary by fire or other casualty, not occasioned by lessee’s fault or negligence. The lessor will not be responsible for damages caused by leaks in roof or by any vice or defects of the leased property, except in case of positive neglect on his part to have the repairs made within a reasonable time after receiving from lessee written notice of such leaks or defects and of the damage being caused thereby.”

It must be noticed that the above clause contains the provision that: “The lessor will not be responsible for damage caused * * * by any vice or defects of the leased premises.” This identical provision does not appear to ha?ve been included in any lease previously considered in any case previously decided by the Supreme Court. The plaintiff in this case is the lessee herself, who describes herself in her petition as a feme sole. Is this provision binding upon her? It is true that Article C. C. 2695 (2665) provides that:

“The lessor guarantees the lessee against all the vices and defects of the thing; • * * * and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

But Article II of the same Code provides:

“Individuals cannot' by their conventions derogate from the force of laws made for the preservation of public order or good morals. But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor when the renunciation does not affect the rights of others, and is not contrary to the public good.”

The clause in the above lease binds the lessee alone and can “not affect the rights of others”, as the Supreme Court has decided, not even the wife or children of the lessee, much less others who may be lawfully upon the leased premises.

In Clay vs. Parsons, 144 La. 985, 81 South. 597, the court said, on p. 987:

“Our opinion is that the provisions of the Civil Code that hold the owner of a building answerable for any injury that may befall another because of the landlord’s neglect to make repairs are subject to the general law of . negligence, and that the obligation thus imposed by law upon the landlord may be dispensed with, not only by a lessee as a condition of his contract of lease, but by anyone desiring. to occupy the house and willing to assume the risk.”'

“The ruling (in Ciaccio vs. Carbajal, 142 La. 125, 76 South. 583) has no application to this case, where the wife expressly assumed the risk.”

The clauce requiring the lessee to give notice of the necessity of repairs before he can claim damages has been upheld in Torres vs. Starke, 132 La. 1045, 62 South. 137.

In Pierre vs. Hedden, 105 La. 294, 29 South. 734, the court said, on p. 303:

“The parties to a lease have the right, as have the parties to a sale, to broaden qr restrict their respective rights and obligations as to warranty by a clause in their contract,” quoting Dalloz on Art. C. N. 1721, No. k8-29-57. See also 3 Pothier Louage, S. 114, p. 283.

In 30 Dalloz Rep., p. 320, S. 196 we read:

“The lessor does not warrant the vices which he has excepted from the warranty by an express clause of the contract. (Pothier No. 114.) Such a clause' as remarks M. Duvergier, No. 345, has nothing illegal.”

“It is permitted to stipulate that the lessor shall not warrant the vices of the thing leased in general, or of a special vice in particular. Such a clause has nothing illegal, unless the lessor was aware of the vice while the lessee was ignorant of it. 3 Duvergier, p. 328, S. 345.

“Very often parties insert in the lease clauses having for their object to restrict the obligation of warranty of the lessor; these clauses, be it understood, should receive their execution, and the lessor shall not', be held for any warranty for the vice or for the vices .of which he is. formally enonerated.” 1 GuiLlonard, p. 137, S. 121; 1 Bandry Lacantinerie, Yo. Louage (lease), p. 217, S. 440:

“But the lessor may by a clause of the lease put aside or restrict his warranty, just as the lessee may, expressly or impliedly, renounce the warranty; public order is not interested ih the question.’’

“The lessor is eually exempt from warranty when he has inserted a clause of no warranty.” 1 Troplung, S. 198, p. 314.

“A shipper may, by contract, release the carrier from liability for damagec.” J. D. Simmons & Sons vs. N. O. & N. E. R. R. Co., 122 La. 268, 47 South. 602; Higgins vs. N. O., Mobile and Chattanooga R. R. Co., 28 La. Ann. 133; 112 U. S. 331; 226 U. S. 91.

“A debtor may waive a homestead.” Allen, Nugent & Co. vs. Carruth, 32 La. Ann. 444.

“An accused may waive any right' which the law has given him. State vs. Arbuno, 105 La. 730, 30 South. 163.

“A creditor may waive the law requiring executors to deposit money in bank.” In re Dimmick’s Est., Ill La. 656, 675, 35 South. 801.

“A cold storage company may, by contract, limit its liability.” Marks vs. New Orleans Cold Storage Co., 107 La. 172, 31 South. 671.

“Heirs may renounce provision of Article 1481, relative to donations to concubines.” Hammon vs. Sentell, 160 La. 589, 107 South. 437.

The above authorities answer the objection of public policy.

There is _ no law prohibiting the renting of dilapidated or defective houses.

Judgment affirmed.


text:
    No. 10,809
    Orleans
    JOSEPH v. BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS
    (January 31, 1927. Opinion and Decree.)
    (February 14, 1927. Rehearing Refused.)
    (March 28, 1927. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by tjie Court)

    1. Louisiana Digest — Master and Servant —Par. 160.
    Compensation is due dependent niece and nephew where the deceased uncle, who left no minor children of his own and no widow, was living in the household with them at the time of his death, was actually paying the rent and furnishing them with clothes and groceries.
    (Note: The recent amendment of Act 20 of 1914 is Act 85 of 1926. — Editor’s note.)
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Mary Joseph, et al., against Board of Commissioners, Port of New Orleans.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    George Piazzo, of New Orleans, attorney for plaintiff, appellant.
    Arthur McGuirk, of New Orleans, attorney for defendant, appellee.
   JONES, J.

On May 2, 1914, Louis Bell, while working for the Board of Port Commissioners, was killed by an electric wire.

He left no widow, no dependent children and no parents. This suit for compensation was brought by his sister, Mary Joseph, for her minor child, Adele Joseph, a niece of the deceased, and by his niece, Elvera Honoré, for her minor child, Leonard Honoré, a grand nephew of the deceased.

The allegation is made in the petition and the proof shows that Louis was living at the time of his death at the home of Mary Joseph, with all of the above named parties, and that he, for several months, had been contributing regularly to the two minors, who were actually being provided by him at the time of his death with food and clothing.

Defendant, after admitting the other allegations, denies dependency.

The case was tried twice in the lower court, because the official stenographer died before he transcribed his notes. On the first trial judgment was given for defendant upon the ground that plaintiff had failed to prove dependency, and a like judgment was given after the second trial, although in his reasons for the second judgment the judge found that the evidence was at variance with that given at the first trial, because it showed that the minors were “dependent, upon the deceased”.

Dependency is the sole question before us.

Pour witnesses for the plaintiff testified that the deceased had lived for several months prior to his death at the home of his sister with .the two minors and that he bought both food and clothes for them regularly.

One of the plaintiffs, Mary Joseph, testified that she did washing and ironing for a living, employing extra help when, the work .justified; that sometimes, she had threei dollars and sometimes five dollars after paying the hands; that her brother, who came to live with her seven or eight months before his death, gave the children shoes and clothes, bought groceries, and on the first and fifteenth of each month gave her nine dollars to pay the rent, which was twenty dollars per month; -that her daughter, Adele, was then eighteen, and her grandson, Leonard Honoré, was eight; that both husbands were still alive when last heard from, but had deserted their wives and contributed nothing to their support.

Defendant, who produced no witnesses, argues as follows:

1st. That plaintiff’s testimony is unworthy of belief, because four of the witnesses did not testify on the first trial.

2nd. Because the eighteen dollars paid monthly by the deceased was for board and was not a contribution to the support of the minors.

3rd. That the household in which the deceased lived wás not his household and that the “dependency”, if any, is not “within the meaning of the statute”. To sustain this argument he quotes the case of Haag vs. E. Z. Opener Bag Co., 7620, Court of Appeal, where this court held:

"Employers’ Liability Act No. 20 of 1914, amended by Act 243 of 1916, uses the term ‘family of the deceased employee’ not in the sense of,blood relationship, but in the sense of membership in his household or subject to his authority.”

In answer to the first argument we say that we must take the record as we find it and that we cannof refuse to consider the unimpeached and uncontroverted testimony of these four witnesses simply because they did not testify at the first trial, and, even if we did, the testimony of Mary Joseph would still be controlling, as her' statements are uncontradicted.

In answer to the second argument, we say that there is not proof that the money was paid for board. Mary Joseph says: “He didn’t pay no board. He ttayed there like he was their father and he did for them.”

Albertine Lyons testifies that she saw the deceased buy shoes and clothing for the children and the other three witnesses testify that Louis Bell had told them he was supporting the minors.

Furthermore, this court, in the case of Rosenblath vs. Pierce, No. 7856, Court of Appeal (Orleans), held as follows:

“It is immaterial whether the amount paid by each one is called a contribution or board, or whether it is more or less than the value of the board. The fact is that each paid in a part and that the whole was used to pay the expenses. * * * If the weekly payment by both sons had been cut off, the father would have been left with only forty dollarc, an amount insufficient to support himself, his daughter and her two children. If the amount contributed by any one of the two sons had been withdrawn, the ability of the father to provide for himself and family would have been reduced that much. When Bernard’s twenty dollars ceased to come in, the dependency of plaintiff upon that amount was affected to that extent.”

Here the evidence shows that Mary Joseph’s greatest earning after paying all expenses was five dollars per week; that the rent was twenty dollars per month; that she had no property and had been given fifteen cents carfare.

In answer to the, third argument we quote Par. (h), Subsection 2 of Section S, Act 247 of 1920, which reads in part as follows:

“Compensation to the brothers and sisters and other members of the family of the deceased employee not hereinabove specifically provided for, if such brother or sister or other members of the family not otherwise specifically provided for was. actually dependent on the deceased employee for support to any extent at the time of the injury or death thirty per cent of wages for the brother or sister i.r other dependent member of the family and ten per cent additional for each additional such brother or • sister or other dependent.”

In construing this paragraph the Supreme Court said, in the case of Heinzelman vs. Board of Commissioners of Port of New Orleans, 149 La. 215, 88 South. 798:

“ ‘Dependent to any extent’ is a very broad term, and seems to us to include necessary aid furnished for the discharge of any legal obligation, as well as aid required merely in supplying the personal wants of the recipients.”

In Gregory vs. Standard Oil Co., 151 La. 228, 91 South. 717, the Supreme Court allowed compensation to the dependent parents, although the minor son was living away from home with his married sister and had not contributed to his parents out of his first month’s salary.

It is true that this court in the case of Haag vs. E. Z. Opener Bag Company held that the nephew and niece were not. entitled to compensation, although they were dependent upon their uncle to some extent, because they were not living with him in his household at the time of his death and were not subject to his authority, but were residing elsewhere. Although that case was decided in 1919 after the original compensation act, namely, Act 20 of 1914, had been amended by Act 243 (f 1916, the court quotes approvingly this provision from the original act which had been omitted in the amended statute:

“No person shall be considered dependent unless a member of the family of or bearing to him the relation of husband or wife or descendant or ascendant or brother or sister or legally adopted child,” and then concludes that “the word family is used not in the sense of blood relationship but in the sense of membership in his household or subjection to his authority.”

The paragraphs in the present act pertinent to this point, namely, 247 of 1920, under which thia suit was brought, are as follows:

(k)“Compensation shall be payable under this section to or on account of any child or brother or sister or other dependent member of the family not otherwise specifically provided for, only if and while such child, brother, sister or other dependent member of the family, not otherwise specifically provided for, is under the age of eighteen years, ■ unless such child, brother, sister or other dependent member of the family is mentally or physically incapacitated from earning a living.”

(1)“No compensation shall be payable under this section to a widow unless she be living with her deceased husband at the time • of the injury and death, or be then actually dependent upon him for support. Nq compensation shall be payable under this section to a widower unless he be living with his deceased wife at the time of the injury and death or be at such time incapable of self-support and actually dependent upon her for support.

(m) “The term ‘child’ and ‘children’ shall cover only legitimate children, acknowledged illegitimate children, stepchildren, posthumous children and adopted children. The term ‘brother’ and ‘sister’ shall include step-brothers and step-sisters and brothers and sisters by adoption.”

(n) “In all cases provided for in this section the relation of dependency must exist at the' time of the injury and at the time of the death.”

These amendments and many of the recent decisions of the courts (quoted below) tend to show that “actulal dependency to some extent” rather than the fact that the minors were residing in the household of deceased at the time of his death is the controlling factor in fixing liability for compensation.

In this case the deceased uncle was living in the household with the minors; was actually paying eighteen dollars on the rent every month and was occupying one of the. bedrooms in the three-room cottage. Although the house had been occupied by Mary Joseph and the other minors before he came to live with them seven or eight months prior to his death, we think that the evidence shows that the household was sufficiently subject to his authority to fall within the statute at the time of his death. On this point Mary Joseph says (p. 19):

“When he come to live with me, I was sick there and I had a little washing but not very much, but since the separation of me and my husband, my brother helped me with the children, because I had a trifling husband, and he encouraged me to leave the man, that he would support the child.”

And on page 20:

“He stayed there, I think, abqut' seven or eight months; that he had been living there in the house with me, but before that he give the children anything they wanted, and after my health got so bad, he came and lived' altogether in the house with us.”

These statements tend to show that the deceased came to live with his sister, because of her illness, and presumably to relieve her in part of the rsponsibilities of managing as well as supporting the inmates.

Furthermore, the. courts have repeatedly held that the act must be literally construed.

Rome vs. Mexican Petroleum Cor., 3 La. C. A. 523 (Orleans):

“Liberal interpretation is the rule of reason governing courts in compensation cases and no definite inflexible rule can be established. Each case must be considered in the light of its own facts and attending circumstances.”

Dick vs. Gravel Logging Co., 152 La. 993, 95 South. 99:

“The object of the statute is to shift the burden resulting from the accidents of our intense industrial activities from the employer to the general public. It is humane in its purpose and. its scope should be enlarged rather than restricted. Its provisions should be liberally construed so as to include all services that can be reasonably said to come within them.”

In Lemieux vs. Cousins, 154 La. 814, 98 South. 255:

“From the foregoing it is clear that this court has put itself of record as meaning to carry out liberally the provisions of the Workmen’s Compensation Law, the manifest intent and spirit of which is that no injured workman, who premptly and seriously claims compensation, shall be deprived of the compensation due him by any technical or formal or strained construction of the act.”

See also Dyer vs. Rapides Lbr. Co., 154 La. 1091, 98 South. 677, and Jones vs. Powell Lbr. Co., 156 La. 767, 101 South. 135.

For the above reasons the decision of the lower court is reversed.

As Adele Joseph, one of the minors, became eighteen years of age on September 24, 1926, her compensation only ran from May 2, 1924, to September 24, 1926, a total of 120% weeks. It is admitted that the wages of deceased were nineteen and 20-100 ($19.20) dollars per week, and the statute allow's forty per cent for the two minors during the -120% weeks and thirty per cent thereafter for the remaining 179% weeks.

It is therefore ordered, adjudged and decreed that there be judgment in favor of plaintiffs for their minor chidlren and against defendant in the sum of one hundred ahd fifty and 00-100 ($150.00) dollars for funeral expenses, together with five per cent interest from judicial demand.

It is further ordered, adjudged and decreed that there be judgment in favor of the plaintiffs for their minor children, compensation at the rate of seven and 68-100 ($7.68) dollars for 120% weeks, and in favor of plaintiff, Elvera Honoré, for the minor, Leonard Honoré, at the rate of five and 76-100 ($5.76) dollars per week for 179% weeks, with interest at five per cent on each weekly payment from the time it became due until paid.

ON PETITION FOR REHEARING

The judgment is amended by strikitg out the item of $150.00 allowed for funeral expenses, and as thus amended the rehearing is refused.


author: WESTE'RFIELD, J.

text:
    No. 9579
    Orleans
    JABURG BROS. v. WAGNER & BRO., Appellant
    (January 31, 1927. Opinion and Decree.)
    (February 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 229.
    A written guaranty of the payment of a draft can not be varied, contradicted or qualified by parol testimony.

      Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Jaburg Brothers against Chas. P. Wagner & Bro.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Weiss, Yarrutt & Stich, of New Orleans, attorneys for plaintiff, appellee.
    Dart, Kernan & Dart, of New Orleans, attorneys for defendant, appellant.
   WESTE'RFIELD, J.

Plaintiff, a New York firm, sues defendant, a New Orleans partnership, for $1350.00, under the following circumstances:

Defendant, as agent for plaintiff, sold to the United Grocery Stores Co., of Montgomery, Alabama, certain bread-making machinery valued at the amount sued for. The machinery was shipped “sight draft, bill of lading attached”. The draft and bill of lading Was sent to the Fourth National Bank of Montgomery. Defendant secured the release of the bill of lading, without paying the draft, hy endorsing the following on the back of the draft:

“I hereby authorize the release of the bill of lading, as agent for Jaburg Bros., and guarantee payment of the draft.”

Defendant’s customer took possession of plaintiff’s machinery and defaulted in the payment of the draft, whereupon plaintiff brought this suit against defendant.

The defense set up in the answer is that the endorsement on the draft was merely intended to protect the bank, which held the draft, in releasing in the hill of lading against the refusal of plaintiff to approve of defendant’s action in authorizing the release, and did not contemplate the ¡payment of the draft to Jaburg Bros., defendant’s principal, who, it is claimed, was not influenced in subsequently approving the release of the bill of lading by plaintiff's endorsement on the draft. Defendant also reconvened and asked for $420.00 as commission on the sale of the machniery.

When defendant sought to prove its defense, by oral testimony, plaintiff objected, invoking the familiar parol evidence rule with respect to written instruments. The objection was overruled, the evidence admitted, considered, and the case decided in plaintiff’s favor on the main demand, and in defendant’s favor on the reconventional demand. Insofar as the reconyentional demand is concerned, it is admitted that defendant is entitled to its commission in the event that plaintiff should recover judgment on its main demand. We have arrived at the same conclusion as our brother helow but by a different and shorter course, for we believe he erred in admitting parol evidence to qualify plaintiff’s endorsement. It seems to us clear that the rule, invoked by defendaht, must be applied in this ease. What defendant did, insofar as it appears in writing, was to “guarantee payment of draft”. These words are not ambiguous and require no explanation. We are aware of the flexibility of the parol evidence rule, hut are unwilling to add to the confusion, which this flexibility has caused, by excluding this case from its application.

“There is perhaps no rule of law or of evidence which is more flexible, or subject to a greater number of, exceptions than the rule which excludes parol evidence offered to vary or explain written documents. It has been said that, in the multitude of exceptions, much confusion has arisen, so that the exact limit to be placed, upon, the exceptions depends not only upon the peculiar facts of each case, but also upon the peculiar cast of thought of the individuals composing the court.” Corpus Juris, Vol. 22, Verbo Evidence, p. 1144. It is interesting to compare the words of the author just quoted with those of Chief Justice Marshall uttered more than a century before:

“The principles which require that a promise to pay the debt of another shall be in writing, and which will not permit a written contract to be explained by parol testimony originate in a general and wise policy, which this court cannot relax so far as to except from its operation cases within the principles. Already have so many cases been taken out of the statute of frauds, which seem to be within its letter, that it may well be doubted whether the exceptions do not let in many of the mischiefs against which the rule was intended to guard. The . best judges in England have been of opinion that this relaxing construction, of the statute ought not to be extended further than it has already been carried, and this court entirely concurs in that opinion.”

These words of Judge Marshall occur in the opinion of the court in the leading case of Grant vs. Naylor, 4th Cranch 224. In that case the court held that, though a guarantor intended to guarantee the firm of John & Jeremiah Naylor & Co. against loss on a certain account, the fact that the guaranty was in writing, in the form of a letter, which was addressed - to John & Joseph Naylor & Co., precluded oral proof of the real intention of the guarantor. The plaintiff offered to prove that there was no such firm as John & Joseph Naylor & Co., nevertheless, the court, after admitting that they were convinced a mistake had been made, adhered to the rule referred to. See also Purguson vs. Blaze, 12 La. Ann. 667; Corpus Juris, Verbo ’’Evidence”, Vol. 22, p. 1112.

The judgment appealed, from is, affirmed.


text:
    No. 2800
    Second Circuit
    PURVIS v. WARE CONSTRUCTION CO.
    (November 6, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 160 (j).
    The burden is on the plaintiff in a suit under the Employers’ Liability Act to make out his suit.
    App. 558.
    2. Louisiana Digest — Master and Servant— Par. 160 (l); Appeal — Par. 625.
    When issues of fact' are dfecided by the trial court its findings will not be disturbed on appeal unless manifestly erronous.
    Indx, 3 La. App., vrbo “Appeal”.
    Appeal from the Pirst Judicial District Court of Louisiana, Parish *of Caddo. Hon. E. P. Mills, Judge.
    Action by Edward R. Purvis against Ware Construction Company.
    There w'as judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellant.
    Browne, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, ap- ' pellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a siut to recover $20.00 per week for 400 weeks under the Workmen’s Compensation Act for injuries alleged to have been sustained by plaintiff in an accident on November 27, 1925, while in the employ of the defendant.

The injuries are alleged to have been sustained while ¡plaintiff and a co-laborer were engaged in pulling up from the ground a piece of timber 2x12 inches, approximately 18 feet long and weighing about 80 pounds, which piece of timber, it is alleged, while being so pulled up, slipped and jerked plaintiff, spraining his right arm, causing a right inguinal hernia, spraining and causing varicoule veins of the spermatic cord; and as a result of which injury, it is further alleged, the muscles, ligaments, cords, tissues, nerves, and other structures in and about plaintiffs right shoulder are deranged, torn, impaired and seriously affected, and the tissues, ligaments and nerves in and around the spermatic cord of the right side are inflamed, torn and bruised, causing varicoule veins of the said cord, the grip and use of plaintiff’s right hand and arm are impaired and seriously affected, and that plaintiff’s right side is ruptured, causing an inguinal hernia; and it is further alleged that by reason of the accident and injury plaintiff’s eyes have become weakened to such an extent that he is unable to discern the different shades in the mixing of colors; that plaintiff is a painter by trade and that it is necessary that he be able to see the different shades in mixing colors; and that plaintiff is totally disabled from doing work of any reasonable kind.

Defendant denied liability and alleged that plaintiff did not sustain any serious or permanent injury during the course of his employment.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing his suit, and he has appealed.

OPINION

The questions to be determined in this case is one of fact, whether, on the 27th day of November, 1925, plaintiff received the injuries complained of, or .not.

Plaintiff depends, to establish the facts necessary to make out his case, on his own testimony and that of his co-laborer, E. W. Johnson, which, he says, corroborates his own evidence.

Plaintiff testified (Evidence, page 2):

“Q. Just state to the court what happened to you?

“A. Why I was detailed to scaffold for the painters — I was detailed by the foreman of the work out there to prepare a scaffold for the painters — for the rest of the painters to work on, and in preparing and arranging the scaffold for that work I was injured by a sudden jar; after working for about four days at an unusual kind of work, straining work, I received a jar or jerk that injured my whole right' side practically.

“Q. Now how was this jerk or jar received, Mr. Purvis ?.

“A. It was in handling 2x8 and 2x10 — in other words, from sixteen to eighteen-fourteen to sixteen to eighteen feet long; but there is very few pieces of eighteen-foot for running boards. In pulling them up I was standing on a small narrow window ledge, the only footing I had, and my awkward assistant in swinging the board jerked it into the window sill and gave me a jar, throwing me off my feet.”

W. E. Johnson, called as a witness by plaintiff, testified (Evidence, pages 51, 52, 53):

“Q. Mr. Johnson, were you working on this same work on the 27th day of November — the same time that Mr. Purvis was working there?

“A. Working on the same job.

“Q. Doing the same thing?

“A. Yes, sir, he and I were doing the scaffolding.

“Q. Doing the scaffolding. Did any accident happen to Mr. Purvis on that date?

“A. No accident happened, hut he complained --

“Q. (Interrupting.) Never mind what he complained about.

“A. No, no real accident happened, only at one time one of the boys dropped a board, and I think that it hit him on the head, though I didn’t see that myself.

“Q. Well, at the time that this supposed injury happened?

“A. He complained of a piece of board being dropped on him.

$ ‡ $

“Q. Did you see the board fall?

“A. No, sir, I didn’t.

“Q. This board that you are speaking of is the same board that somebody dropped on him and hit him on the head?

“A. Yes, sir.

“Q. And that is the only accident?

“Q. The only accident I know anything about.

“Q. Is that the accident that he complained about?

“A. That is the only one that I ever heard him complain about.”

This evidence does not, in our opinion, corroborate the evidence of plaintiff, but, on the contrary, tends to destroy it. .

The district judge, who saw and hoard the witnesses testify, rejected plaintiff’s demands. A careful reading of the evidence convinces us that his judgment is correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 2797
    Second Circuit
    MAYS v. ALLISON & LANGSTON SUPPLY CO.
    (Jan. 28, 1927. Opinion and Decree.
    (Feb. 24, 1927. Rehearing Refused.

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 159, 160 (j).
    Under the Workmen’s Compensation Law, prior to the amendment by Act 85 of 1926, where an employee was suing for compensation for disability resulting from a broken ankle and the evidence failed to show total disability at the time of the trial and the employee was able to walk without the aid of crutches and the preponderance of • the evidence as to the condition of his ankle showed that there was no deformity, that he had good use of the ankle in all directions of motion in standing on it anid in walking, that the broken fragments were in perfect alignment, good apposition and good union, and that the employee would be entirely recovered from his injury in from six to eight weeks, the court should fix a definite period during which compensation should be paid. Rogers vs. Thermatomic Carbon Co., 157 La. 193, 102 South. 304.
    Upshaw vs. Triangle Drilling Co., 5 La. App. ( ).
    2. Louisiana Digest — Master and Servant —Par. 160 (e), 160 (k).
    An injured employee has no standing to sue- for compensation under the Workmen’s Compensation Law until a dispute exists between him and his employer as to his right to compensation or the amount he is entitled to receive; but where the employee sues in the absence of such dispute and the employer answers denying his right to compensation, the petition and answer constitute a dispute, and the plaintiff, if successful in the action, can only be cast for the costs incurred up to the filing of the answer.
    3. Louisiana Digest — Master and Servant —Par. 160 (i), 160 (k); Costs and
    Fees — Par. 37.
    Article 442 of the Code of Practice provides the manner in which experts may be appointed, and if neither party to the suit objected to the examination of the experts on trial of the case, it is too late to object to a reasonable fee for their testimony after the case has been tried.
    Walker vs. White Woods Products Co., 4 La. App. 403.
    (The recent amendment to Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of LaSalle. Hon. F. E. Jones, Judge.
    Action by Charles F. Mays against Allison & Langston Supply Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff sues defendant under the Workmen’s Compensation Law, for $20.00 a week for 400 weeks beginning March 4, 1926, for disability resulting, from a broken ankle.

Defendant admitted the existence of the injury but denied plaintiff’s right to sue, alleging that at the time the suit was brought no dispute existed between him and it and that up to that time it had paid him all compensation he claimed he was entitled to and had not denied its liability and was willing to continue paying him compensation until he was able to resume work; and it prayed that if at the time of trial he should still be disabled that he be awarded compensation only until that date and that if he be then no longer disabled that he be denied further compensation, and that in any event plaintiff be cast for the costs of the suit.

On these issues the case was tried and judgment was rendered in favor of the plaintiff for $20.00 a week for forty weeks, beginning March 4, 1926, with reservation of his right to reopen the case at the end of that time, and taxing the defendant with all costs, including the fees of two medical experts which were fixed at $15.00 each.-

Both plaintiff and defendant appealed.

OPINION

Defendant contends that at the time of the trial the broken bones of plaintiff’s ankle had entirely healed and that he would be able to resume work in from six to eight weeks from that time.

The first question to be decided, therefore, is whether or not the evidence shows that plaintiff would be able to resume work in from six to eight weeks as contended by defendant.

Doctor C. L. Wolf, the surgeon who treated plaintiff’s ankle, testified, page 52:

“What was the nature of his injury, doctor?

“A. He had a fracture of the internal malleolus of the right ankle, extending obliquely from inwardly up and outwardly; a transverse fracture of the external malleolus.

“Q. Did he respond to the treatment you gave him?

“A. Yes, sir.

“Q. How long should it have been from the time that you last examined him until he should have been able to resume 'his usual occupation?

“A. About forty to sixty days.

“Q. In your opinion, then, for all practical purposes, he would have had the full function in all probability from forty to sixty days? Prom the time you examined him, May 1st?

“A. Yes, sir, with the probability that there would be some swelling on excessive exercise; as sometimes in a fracture of the leg there is usually some swelling on being used, for a space of six months to a year.

“Q. But for all practical purposes he should have full function of the member?

“A. Yes, sir.

“Q. And full use of it?

“A. Yes, sir.

“Q. Doctor, were there any complications in this case?

"A. No, sir.

“Q. Was his recovery all' that you could expect during the time that you treated him?

“A. Yes, sir.

“Q. Doctor, had there been a union of both bones at the point of the fracture at the time that you made these pictures?

“A. Yes, sir.

“Q. That shows bony union of both bones at the fracture?

“A. Yes, sir.

“Q. Did you make a physical examination to ascertain whether or not there was any mobility of the fractured fragments ?

“A. Yes, sir; the day that I made the last picture.

“Q. Did you find any mobility?

“A. No, sir.

“Q. There is bony union of both of the fractures?

“A. Yes, sir.

“Q. Doctor, what about the alignment? Is that good or bad.

“A. It is good.

“Q. The alignment of the foot?

“A. It is good.

“Q. Doctor * * * I will ask you whether or not there was bony union after two and a half months?

“A. As far as I could tell from the x-ray and from an examination, there was bony union.

“Q. Does the examination of the x-ray plate made by Dr. M. L. Adair, that has been handed to you, change your opinion of that at the present time?

“A. It does not.

“Q. Does that confirm it?

“A. Yes, sir.

“Q. That picture shows bony union of both fractures?

“A. Yes, sir, as far as I can tell from the x-ray there is bony union.

“Q. Doctor, if on the 25th day of May an ordinary layman could see that the bone was movable by putting his hand on it' on the outside, would that change your opinion?

“A. No; I examined it and it did not move at the time of my examination. I examined him very carefully the day that I took that x-ray with that tiling in view, as he was complaining of it, and I made the motions in every direction and I could not get the bone to move at all.

“Q. You made a thorough examination and could find no mobility?

“A. I could not.

“Q. And taking the x-ray pictures, you found no evidence of that or of nonunion?

“A. No, sir, I did n,ot.

“Q. Did you find that there was bony union?

“A. I did.”

Doctor J. I. -Peters testified, pages 71 and 72:

“Q. What did you find the condition of his ankle to be in at the time you made the examination?

“A. I found his ankle in good, condition; particularly I found that he claimed fracture of the right ankle. There was no evidence of any deformity; he had good use of the ankle in all directions of motion, in standing on it and in walking. The x-ray picture showed, first, a fracture of the malleoli; the fragments were in perfect alignment, good apposition and good union. There was a sligiht difference in the size of the two ankles, such as you always find, practically always find, following a fracture. There was nothing else that we found of any particular significance. He claimed, however, walking on his ankle caused it to tire easily and after hours of standing became sore.

“Q. About what length of time, from the time that you examined him, in your opinion, will he be able to resume his ordinary labor and do a full amount of manual labor on that foot?

“A. I would consider a period of six or eight weeks a liberal allowance for time in regaining complete restoration of function.

“Q. You are also of the opinion that within the nlext six or eight weeks he will have full use of the member for all practical purposes.

“A. Yes, sir.”

Doctor P. K. Rand testified, pages 73 and 74:

“Q. Did you have occasion recently to examine C. F. Mays, the plaintiff in the suit of C. F. Mays vs. Allison & Langston Supply Co., who is supposed to have been injured by having his ankle fractured about the 25th day of February, 1926?

“A. I did, on May 27th.

“Q. What did you find his condition to be at that time, doctor?

“A. I found that he had an old fracture of the right internal and external malleolus; that the bone fragments were in good alignment; that there was fair union; there was no ankolosis of the ankle joint; no limitation of motion, though there is still some tenderness on extreme motion of the foot in any direction.'

"Q. What have you to say as to his ability to use the foot for all practical purposes, and when in your opinion, he will have full function for all practical purposes in doing ordinary or manual labor of a reasonable character?

“A. I think that he will have full return of function of the ankle joint and absolutely firm union of the fractures in six weeks to two months from the date I examined him.

“Q. Is the ankle in as good condition as you could expect, considering the nature of the injury, from the time that has elapsed since the injury?

“A. I think that his ankle is very good; both of the bones are in good alignment; there is no sign of ankolosis or any other disability; and I see no reason why he should not have perfect function.”

Doctor R. C. Simmons testified, pages 75 and 76:

“Q. Did you have occasion to examine ¡the ankle and foot of C. F. Mays, the plaintiff in this case, on or about May 27, 1926?'

“A. Yes; I remember the case very distinctly.

“Q. Please state what you found the condition of his ankle to be in?

“A. Well, you could hardly tell that he had had an injury to this ankle. All the motions were perfect. He showed slight indentation upon pressure over the region of the external malleolus; but he has what I consider good union though it is not as firm as it will be within the next few weeks. He should have absolutely no disability resulting from this injury.

“Q. Now, within what period of time should he regain full function for all practical purposes?

“A. Within six weeks at the most. I think he ought to b.e able to do anything within six weeks.”

Against this testimony of these four eminent surgeons we have the testimony of Doctor M. L. Adair and Doctor E. L. Sanderson to the effect that there is now non-union of one of the fractures of the anille joint.

Doctor Adair testified, pages 22, 23, 24:

“Q. How far is the fracture from the ankle joint?

“A. The internal malleolus that we speak of is the knot on the inside of the ankle; and the exterior malleolus is on the outside. And the fracture extends through those two knobs; the knot on the inside is reunited and the knot on the outside has not united.

“Q. Doctor, how was the plaintiff getting along about at that time?

“A. He walked in my office and walked out when I got through. I did not see him. I don’t think I saw him walking but I had. my back turned when he came in and when he left.

“Q. Did he have a cane?

“A. I don’t remember any cane. He did not have any crutches.

“Q. Doctor, how long will it take that ankle to get back to its normal position or condition, or as near normal as you expect it to. get back, that is, where he can. use it for all practical purposes?

“A. The fracture ought to be completely united in six weeks and will be all over in eight Weeks from the time of the fracture.

“Q. Don’t you think that he could in a very short time, if not at the present time, take up ordinary manual labor such as driving a truck?

“A. I think that he could drive a truck probably now. It would be just a question of how much pain he has. These fractures that fail to unite are frequently painful, give pain on use. However, if the pain is not great, he should be able to work, but there would be risk of turning that ankle and making the conditions worse.”

Doctor E. L. Sanderson testified, pages 29, 30, 33:

“Q. You mean by movement of the joint or bone above* the ankle joint on the inside?

“A. Yes. Taken in conjunction with the examination of the x-ray my diagnosis was a fracture of the internal and external malleoli, with union of the external and non-union of the internal. I would not say non-union, but either non-union or fibrous union; and I may be mistaken as to the side of the foot, because I don’t recollect definitely which side that had the movable malleolus, but it was on one side. The malleolus apparently was movable.

“Q. How long will it be before he is able to resume ordinary manual labor of a reasonable character?

“A. As soon as this malleolus is united firmly and the callous is absorbed.

“Q. What length of time would you expect that to take?

“A. Well, that is hard to tell, because it should have been united by now.

“Q. Assuming that this man was a truck driver, delivering oil well supplies, don’t you think that he could within a very short time, if not now, be able to resume that occupation?

“A. Well, I think he could, if he had to, probably go to work now, ’ if it was imperative.”

Under the above testimony the trial court was of the opinion that plaintiff’s ankle would be entirely well in forty weeks dating from the date of the accident. In arriving at this time the court gave plaintiff compensation as 'for total disability from the date of the accident, February 25, 1926, up to the time of the examination, about May 27, 1926, three months, and, in addition thereto, allowed the eight weeks, testified to by the surgeons as the additional time that would be required for plaintiff to completely recover, making in all, twenty weeks, and then doubled that time in order to make sure that plaintiff would be entirely recovered by the time his compensation ceased.

After carefully reading all the testimony, we cannot say that the trial court erred in fixing the definite period of forty weeks during which plaintiff should receive compensation.

In addition to allowing compensation for forty weeks, the judgment provides— “* * * that at the end of forty (40) weeks, plaintiff’s right to reopen the case is reserved.”

We have been unable to find any law authorizing this part of the judgment and defendant’s attorneys contend and plaintiff’s attorneys concede that' it is without warrant in law. Therefore so much of the judgment as reserved to plaintiff the right to reopen the case at the end of forty weeks must be reversed.

Defendant' earnestly insists that that part of the judgment that fixes the fee of the expert witnesses at $15.00 each and requires defendant to pay them is contrary to law.

In the case of Walker vs. White Woods Products Co., 4 La. App. 403, the Court of Appeal for the first circuit, in passing op a similar question, said:

“Defendant and appellant earnestly complains of that part of the decree which condemns it to pay two hundred dollars for exipert witnesses. Plaintiff called three physicians to the witness stand and defendant called one, all four of whom were examined as to their opinion and were used as experts. They attended court for two days and each was allowed a compensation of twenty-five dollars per day. Defendant argues that plaintiff might in the same manner have summoned and examined an unlimited number of experts, and under the ruling made by the trial judge in this case, these proceedings would have become so expensive that it would have been deprived of its right to contest plaintiff’s demand for fear of being cast for an excessive amount of costs. Plaintiff justifies his action by saying that defendant with its plenteous means was in a position to consult and advise with experts of ability and that he, in his very limited financial condiiton, could only offset defendant’s advantage in consulting and summoning experts by engaging them as witnesses. Of course neither of these arguments demands any refutation on the part of the court. Article 442 of the Code of Practice provides the manner in which experts may be appointed and if either of the parties in this suit had objected to the examination of these experts and called the trial judge’s attention to the matter and presented to him the question as they have presented it here, he would have exercised the jurisdiction and discretion vested in him by the cited article of the Code of Practice, and the present complaint by defendant would not have been made. Instead of objection - to this opinion evidence at the time it was elicited, both parties examined these phys.icians, and took advantage of them ■ as witnesses. The compensation allow'ed to them does not /appear to us to be excessive, and to deprive them of it, after they had earned it, would be a- flagrant injustice.”

Under this authority we are of the opinion that the judgment' fixing the fee of the expert witnesses at $15.00 each and taxing defendant with them, is correct.

For the above reasons, it is therefore ordered, adjudged and decreed that that part of the jugment appealed from which allows the plaintiff compensation at twenty dollars per week for forty weeks beginning March 4, 1926, is affirmed.

It is further ordered, adjudged and decreed that defendant be allowed credit on this judgment for the compensation already paid by it to plaintiff on account of his injuries.

It is further ordered, adjudged and decreed that plaintiff pay all costs of this suit up to the filing of defendant’s answer and all costs of this appeal and that defendant pay all other costs.

It is further ordered, adjudged and decreed that that part of the judgment appealed from which provides “that at the end of forty (40) weeks plaintiff’s right to reorpen the case is reserved,” he annulled, avoided and reversed.

It' is further ordered, adjudged and decreed that that part of the judgment fixing the fees of the expert witnesses at fifteen dollars each and taxing defendant with them as costs of suit be affirmed.

It is further ordered, adjudged and decreed that as thus amended the judgment appealed from be affirmed.


text:
    No. 2725
    Second Circuit
    COOK AND BOYETT v. POLICE JURY OF BIENVILLE PARISH
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)
    (January 31, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Injunction—Par. i, 31, 45.
    Police juries act through written ordinances and until an ordinance is adopted the fear or belief of a citizen that the police jury will make an illegal or improper use of tax funds under its control will not justify the issuing of an injunction to prohibit the feared action. The writ of injunction is designed to prevent' an actual or impending injury. State ex rel. Kiefer vs. Judge, 34 La. Ann. 89.
    Redenez vs. City of New Orleans, 39 La. Ann. 271.
    Harrison vs. City of New. Orleans, 33 La. Ann. 222.
    2. Louisiana Digest — Injunction—Par. ' 27, 31; Parishes — Par. 24.
    Police juries have full authority over the public roads in their respective parishes and courts are without authority to interfere by injunction with matters within their discretion and under their control in advance of ordinance or resolution passed by them.
    Revised Statutes, Sec. 2750.
    Reynaud vs. Parish of St. John, 138 La. 66, 70 South. 39.
    Stafe vs. Adams, 46 La. Ann. 839, 15 South. 490.
    State vs. Judges, 35 La. Ann. 1075.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Bienville. '
    Action by' William T. Cook, and Vinson H. Boyett against Police Jury of Bienville Parish, et al.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    Robertson & Gibbs, of -, attorneys for plaintiffs, appellants.
    W. D. Goff, of Arcadia, attorney for defendants, appellees.
   STATEMENT O-P THE CASE

REYNOLDS, J.

This is an injunction suit based on the ground that a 5-mill road tax had been voted for the purpose of construction, maintaining and keeping in repair public roads and highways' in Road District No. 1 of Ward 4 of Bienville parish, and that the police jury of that parish had appointed a committee to be in charge and expenditure of the fund and that the plaintiffs had been reliably informed and believe that the committee has proposed and is proposing, with the approval of the police jury, to use all the funds for the construction, building and maintenance of State Highway No. 13, which runs from the Red River, parish line to the Jackson parish line, and which passes through .Ringgold and through said District No. l, via Jamestown, in said district, to Bienville in your said parish, and that five miles of said State Highway No. 13 passes through said District No. 1, to the neglect and detriment of the Jamestown-Castor road, Jamestown-Lawhon road, Jamestown-Woodard Mill road, and Nixon-McMichael road in said District No. 1.

The defendant filed an exception of no cause of action, which was sustained by the District Court, and plaintiffs appealed.

OPINION

As to the members of the committe appointed by the Police Jury, Robert R. Nix, Lonnie Bailiff and J. G. Chandler, the petition does not express a cause of action for the reason that the committee was not acting under the direction of or for the plaintiffs and was in no way • amenable to plaintiffs.

If the ordinance of the police jury under which the committee was acting was illegal, plaintiffs had a right to sue to annul it, but they had no right by writ of injunction to make the committee subject to their direction.

As to the police jury, plaintiff’s petition does not express a cause of action for the reason that plaintiffs do not allege that the police jury has acted, illegally or beyond its powers. Plaintiffs’ complaint is that they fear and believe that the committee, with the approval of the police jury, will use all of the tax fund in the building and maintaining of State Highway No. 13' and will not spend any of the fund on any other public roads in Road District No. 1.

There is no allegation in the petition that the tax fund or- any part of it has been collected, or that the bonds, if any were authorized, have- been sold, or that the police jury has any of the tax fund in its hands to spend.

The police jury is vested with discretion and has plenary authority as to public roads in their respective parishes and the courts are without authority by writ of injunction to direct how the police jury shall use this discretion in advance of its having taken any action whatever.

For the above reasons the judgment sustaining the exception of no cause - of action is correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.