text:
    No. 3285
    First Circuit
    HUDSON v. LOUISIANA ELECTRIC COMPANY
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1.Louisiana Digest — Telegraphs and Telephones — Par. 7.
    One who elevated a telegraph pole above a street in frequent use is negligent if he does this without first and before engaging in the work erect barriers and place warning signs to prevent people from coming under it.
    2. Louisiana Digest — Telegraphs and Telephones — Par. 7; Negligence — Par. 21.
    Where a street is left open during the erection of a telegraph pole, the unguarded approach is a tacit proclamation that the pole was safely held by ijhe pikes. Therefore, the danger is not obvious until it is seen and understood, and one driving an automobile past this place does not assume the risk until he knows and realizes the danger.
    3. Louisiana Digest — Automobiles—Par. 7; Negligence — Par. 22.
    One who drives an automobile on an unguarded street past a place where a telegraph pole is being erected is not imprudent or negligent and is not contributorily negligent in the accident which follows the falling of the pole.
    4. Louisiana Digest — Negligence—Par. 41; Evidence — Par. 58, 59.
    The burden of proof is upon the defendant to show that the plaintiff’s deceased husband was guilty of contributory negligence.
    Appeal from the District Court, Parish of Jefferson Davis. Hon. Jerry Cline, Judge.
    Action by Mrs. Mary Elizabeth Hudson, individually and as tutrix, against Louisiana Electric Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Thomas Arthur Edwards of Lake Charles, attorney for plaintiff, appellee.
    Pujo & Bell & Hardin of Lake Charles and Modisette & Adams of Jennings, attorneys for defendant, appellant.
   ELLIOTT, J.

Suit by a widow, Individually and as tutrix, to recover damages on account of the death of her husband, killed while using a public street in the town of Jennings, by the fall of an electric light pole, while being erected by defendant; no precaution having been taken to prevent people from coming under the pole while it was being elevated.

James A. Hudson, while driving his automobile truck on the streets of Jennings, was struck on the head and killed by an electric light pole which the Louisiana Electric Company,' Inc., had raised above the street for the purpose of setting, in the maintenance of its electric light system in said town. Mrs. Hudson, his widow, the mother and tutrix of their four children, all minors, brought suit individually and as tutrix against defendant to recover $30,000.00 damages on account of his death.

She alleges that the pole amounted to a deadly peril, erected by defendant on the street, and which as a result of defendant’s gross negligence in the matter, fell on her husband and killed him.

Defendant, answering, admits that plaintiff’s husband was killed by an electric light pole which it was erecting on one of the streets of the town. Alleged that it was being done in the usual way and that it had the right, by authority of the town, to erect the pole in the maintenance of its electric light system. That plaintiff’s husband saw the men at work, saw the pole, one end of which had been hoisted up over the street on pikes, and should have stopped and not gone under it. That he accosted its employees, while they had the pole elevated, saying: “What are you boys trying to do?” And at the same time stopped his automobile in their midst, directly under the pole, so close to them that they were compelled to shift their position to prevent being struck by his automobile. That its men had the pole under complete control until deceased, by his carelessness, disturbed their attention. That its employees hollered at him when he was 60 or 75 feet away. That he disregarded their warning and dashed his automobile in their midst, occasioning them to lose control of the pole.

That there was not room for him to pass without striking one and probably two- of its men. That he should have stopped at a safe distance and not run his automobile so close as to force the shifting of the men and pikes, thereby causing the pole to fall.

That the danger was apparent and obvious to the deceased. That deceased disregarded warnings, and the apparent and obvious danger, and recklessly exposed himself thereto. That other streets were open to him, but he chose a dangerous route, instead of a safe one, etc.

Defendant prayed that it be held free from fault, but in case it was found to have been negligent in the matter, that it be then held that the deceased was also negligent and at fault and that his fault and negligence in assuming an apparent and obvious danger, was contributory negligence of such character that plaintiff’s right to recover was thereby barred.

Union Indemnity Company intervened in the suit, alleging that it had an interest in the result. It alleged that James A. Hudson was an employee of the town of Jennings and was killed while engaged in the service of the town and in the regular course of his employment.

That it had paid compensation to the plaintiff as his widow and as the tutrix of their children to the amount of $1,100.00. Funeral and medicine to the amount of $309.35; a total of $1400.35. That it had the right to recover from the defendant the amount it had expended as above stated and prayed for judgment against defendant accordingly. The District Judge for written reasons, rendered judgment in favor of the plaintiff and against the defendant for $15,000.00 and in favor of the Intervenor and against the defendant for $1375.55 and authorized the defendant to pay the amount due the Intervenor as a credit against the amount awarded in favor of the plaintiff.

Defendant appealed.

The evidence shows that the defendant was engaged in elevating above one of the public streets of the town, a creosoted pole, 40 feet long, for the purpose of setting it. The pole was very slick and heavy. It was being erected in the maintenance of its electric light system in the town of Jennings. It had the right to erect poles for the purpose. Five streets intersected near the place where the men were at work; two of them were in .frequent use. The ground adjoining the place was not built up with houses, but was occupied by some old boilers and other objects, as indicated by some pictures filed in evidence.

The nearest building was the Philip Miller warehouse, some 75 or 100 feet distant. Defendants’ employees, six in number, with Dewey Phelps as foreman, laid the pole across the street, obstructing it from side to side. The top on the south and the butt on the north side and at the edge of a hole into which it was to be erected. The men lifted up the top and slipped a jenny under the pole. Four of them then got under it and raised it up on the points of their pikes. These pikes were from 14 to 18 feet long. A picture in the record, the general accuracy of which is nqt questioned, shows how the pole was being elevated, and its position at the time it fell. The picture shows that the butt end of one of the pikes was close to the south side of the street and that it leaned forward at such an angle that it was approximately five or six feet from the end of the pole to the place where it rested on the point of the pike. The butt end of another pike was further out in the street but not in the middle, while the other two were both near the middle of the street., each leaning forward, their points being under the pole and holding it up in the air at an angle as shown by the picture; the jenny being nearest the hole. One of the men engaged in the .work testified that the end of the pole was raised 20 or 25 feet, while two others thought that it was raised 15 or 20 feet high over the street.

After it was thus elevated the pikes were grounded, that is the men let the butt end rest on the ground, their points being under the pole and holding it up as shown in the picture. With the pole thus elevated, Johnson, one of the men engaged in the work, left his pike and went to the hole to see if the pole was slipping into it as they intended it should do.

No barrier had been erected on the street, no warning signs stuck up, nor guards stationed to prevent people using the street from coming under the pole.

It was at this juncture that plaintiff’s husband drove up. There was not room for him to pass as he came to the place, without striking the men or some of them; so he stopped under the pole, on the extreme right hand side of the street, the right wheel of his automobile being on the edge of the gutter. He was stopped by the obstruction, and almost the moment he stopped the pole fell and killed him.

Speaking of the care which must be taken by a party engaged in erecting a work above a street, it is said in Cooley on Torts, 2nd Ed., Section 658, p. 790:

“The case may be instanced by a householder repairing his roof arid while thus engaged a slate falls and injures a person passing on the street. Here, manifestly, it was the duty of the householder to take such precautions as would prevent such an injury and the obligation of special care was on him. The passerby had a right to assume that no work being done over the sidewalk would subject him. to danger. True, an act of God, or some excusable accident, may have caused the slate to fall, but the explanation should come from the party charged with the special duty of protection.”

In Elliott on Roads and Streets, 3rd Ed. Vol. 2, Section 796, pp. 200 and 201, that author says:

“Where a municipality is engaged in doing work on streets, dangerous to persons using the street, barriers should be erected so as to warn people and prevent them from coming in contact with the danger.”

In Section 799, pp. 204 and 205, it is said:

“Care must be exercised by municipalities to prevent injury to people using the streets, by poles hung or standing above the street, from falling on them in the street below.”

In Section 803, pp. 21§¡, aní 213:

“When a highway or street is under repairs or becomes dangerous, it must be protected and barriers must be.erected to prevent people using the street from coming in contact with the danger.”

In Ruling Case Law, Vol. 13, Subject: Highways; that author speaking of precautions which should be taken while a street is being repaired, says:

“If it is left open to be travelled, the municipality must exercise ordinary care and take reasonable precautions to prevent injuries to travelers thereon. It may totally or partially close the street to public travel while the repairs are in progress; but if the way is not closed and no notice is given, travelers may expect that it is practicable to pass by safely and that they will have the protection which the law affords.”

In Section 323 the author speaks of telegraph, telephone and electric light poles on roads and streets.

In Section 356, p. 435, speaking of dangers in roads and streets, the author says:

“They must be made safe by barriers erected and signs hung out to prevent people from coming in contact with the danger.”

See also Section 358.

In Section 386, it is said:

“It is a well established rule that persons using a public street which is in constant use and when their attention has not been called to any obstructions or perils thereon, have a right to presume and to act on the presumption that the way is reasonably safe for ordinary travel, and this is equally true whether they are traveling at night or in the day. While the traveler can not recover if he runs blindly or recklessly into known danger, all that is required of him is ordinary care and that he walk with his eyes open, observing his general course and in the usual manner.
“He is not bound to anticipate danger, nor must he be constantly on the lookout for unknown o.r latent obstructions or defects when there is nothing to put him on his guard. He is not obliged to look constantly where he is going, nor to give unremitting attention to his steps; and it follows that he is not guilty of contributory negligence as a matter of law, merely because failing to do so, he falls into a hole or trips over an obstruction in the way.”

We have quoted Sections which speak of the duties of municipalities, because they appear to be shorter; there are other sections in the same books, containing like-provisions as to the duties and liabilities of individuals, corporations and public utility enterprises, using public streets, under authority of the municipal councils for the purpose of repairing and keeping their properties in condition to serve the purpose for which they were constructed.

In Thompson on Negligence, 2nd Ed., Vol. 1, Subject, Obstructions Endangering Travel on Roads and Streets; the subject is treated at still greater length. The subject matter commences with Section 1214, p. 1088 and continues on to Section 1281, p. 1134. According to this author a party-erecting a dangerous structure of any kind, over a public street, is under, the obligation to effectively and timely warn people using the street of the danger and peril so as to prevent them coming under it unexpectedly, or within range of it. To that end, barriers must be erected and warning signs stuck up to prevent people from coming in contact with the danger. A person traversing a public street has a right to assume in the absence of barriers and warning signs, that it is safe and free from danger above and below his pathway; but he must not blindly and heedlessly expose himself to an obvious danger.

In Rock vs. American Construction Co., 120 La. 831, 45 South. 741, the Supreme Court says:

“As a municipal corporation would itself be liable to a citizen for injury sustained by reason of its reducing a sidewalk to a dangerous condition; it is evident that the privilege granted to a, public utility company of making excavations therein, can not authorize such company to leave the excavations so unguarded and dispense with all precautions whereby those who are rightfully using the sidewalk may be warned of their existence. Nor can the company in such case escape liability on the plea that an excavation made under the authority conferred on it and for its account and benefit, has been made by an independent contractor.”

In McCormack vs. Robin, 126 La. 594, 52 South. 779, it is said:

“Streets and sidewalks are intended for free and constant use and those who use them have the right to assume that they are safe, and they are not expected to exercise the care that would be required in traversing a jungle.”

It seems from the law and the evidence in this ease that it is a necessary conclusion that the defendant was guilty of negligence and carelessness in elevating this ©ole above a street in frequent use, without first and before engaging in the work, erecting barriers and sticking up warning signs, so as to prevent people from coming under it, in case it should fall.

The serious question is whether Mr. Hudson was guilty of negligence and fault in driving under it and stopping as he did and whether his act was one of the proximate causes which led to the fall of the pole.

D. L. Johnson, engaged in raising the pole, testified that just about the time the pole fell, a second before the crash, he heard someone holler “look out”. And in a moment or two, right about the same time, he heard the crash of the pole, turned around and saw that it had fallen on Mr. Hudson. That the pikes under it must have released it, as it fell straight down to the ground. That Mr. Hudson could have 'caused the men with the pikes to move and caused it to fall.

James Edwards, also engaged in the work, testified that when Mr. Hudson drove up he says: “Hey, boys or what do you think you are doing” and the pole immediately fell. - That Mr. Hudson didn’t say anything before he drove up and stopped, but that after he stopped he said as he stopped, when he was coming to a stop, “Hey, boys” or “What do you think you are doing,” and the pole immediately fell. Asked if it was after he stopped or before, and his answer was that it was as he stopped. He further testified that Mr. Hudson, by putting one wheel down into the ditch, could have gotten by, without stopping, if he hadn’t got stuck in the ditch. That the front wheel of his car had passed Phelps before he stopped. He estimated the time which elapsed between Mr. Hudson’s statement — what are you fellows trying to do — and the crash as not over two seconds, two split seconds, two snaps of the finger.

Darrel McClung, another employee, said that he heard at least two voices warning Mr. Hudson as he started to make the corner, to “look out; don’t come under here”. That Mr. Hudson was approximately 35 or 40 feet from the pole at the time. That immediately after he said, “What are you fellows doing” the pole fell.

Dewey Phelps, foreman in charge of the work, didn’t know what caused the pole to fall, but thought that a pike must have slipped and caused it. That he was the last man next to the ditch. That the pikes were all grounded. That they had nothing to do at the moment; were waiting for Johnson to see if the pole had started into the hole properly and were then going on with the work. That he first saw Mr. Hudson, 40 or 50 feet away, as he turned toward the pole and that Mr. Hudson said, just as he stopped: “What do you boys think you are trying to do here?” That there was not room for Mr. Hudson to pass between witness and the ditch. That he called to Mr. Hudson as he turned the corner, about 30 feet away. He didn’t recall just what he said, but he usually warned anybody going that way to stop. Didn’t try to stop Mr. Hudson when he first saw him, because he had several ways to turn, and that after he had turned, he didn’t have time to stop him. That very soon after Hudson stopped the crash came. He didn’t remember whether he said stop, or don’t drive under here. That he knew he started to call, and after he saw Hudson coming, he thought he was coming through and get out of the way. That Hudson could have passed if he had gone on and not stopped. That Hudson made the remark, “What do you boys think you are trying to do here,” before the pole fell.

H. L. Boudreaux was standing on the platform of the Philip Miller warehouse, some .60 or 70 feet away, looking at defendant’s employees erect the pole. He saw Mr. Hudson as he drove up and stopped, and says that he drove up and stopped under the pole and almost instantly after-wards the pole fell. .That the moment Hudson stopped, somebody hollered “look out,” upon which witness looked at the pole and also at Hudson and the pole began to fall. That Hudson also looked up and saw the pole falling and attempted to leave his seat and just as he bent over the pole struck him.

Luma Duhon was standing in a doorway of the Philip Miller warehouse, about 100 feet distant, looking at the men elevate the pole and saw Mr. Hudson as he drove up. He says that as Mr. Hudson turned toward the pole, someone hollered two or three times “stop, look out”. That Hudson had stopped at the time he was hollered at. That the pole fell, just as the call was made.

Defendant contends that Mr. Hudson saw the men in the street and the pole elevated overhead on pikes in time and had time to stop at a safe distance and should not have driven under it. That it was an apparent and obvious danger and that he assumed the risk.

The facts and circumstances indicate that the danger and peril was not apparent and obvious to Mr. Hudson and that he did not become aware of same until it was too late for him to avert being killed by the pole. Until he had turned into the street facing the men, his view of what was going on there, was partially obstructed by some old boilers and - other things, as indicated by some pictures filed in evidence. The evidence indicates that after he had turned the corner and started toward the men, some 30 or 40 feet distant, the distance and time of travel was so short, that he had no opportunity to take in the situation until ■ he had reached the. place. He then saw that he could not pass the unexpected obstruction and stopped.

The ■ obstruction stopped him. This fact appears from the evidence of Mr. Phelps, who, being asked why Mr. Hudson was not stopped,' answered that after Mr. Hudson had turned the' corner and started toward them, he didn’t have time to' stop him. Mr. Hudson was, therefore, permitted to come up to the place, and no effort was made to keep him back; he finally saw that he could not pass and stopped where he did as a result of the barred passage.

The preponderance of the evidence is also tó the effect that the warning call to “look out” was not given until he was slowing down, coming to ■ a stop, and was not given' until he had comp under the pole and stopped within reach of the peril.

A danger is not obvious until it is. seen and understood. A risk is not assumed until it is known and realized. In this case we do not think that -the danger from this pole was observed by Mr. Hudson before he stopped; because he had not had time before encountering it to comprehend the situation. The open unguarded approach was a tacit proclamation that the pole was safely held up by the pikes.

It is our conclusion that Mr. Hudson did not realize his peril until the pole started to fall, that it was in the act of falling when he stopped and that it fell before he had an opportunity to get out of the way.

In Knight vs. Pontchartrain R. R. Co., 23 A. 462, the Supreme Court formulated what seems to be the prevailing rule on the subject of contributory negligence, as follows :

1. When the conduct of the plaintiff has, as a matter of fact, contributed to the accident, but such conduct has not been in a legal sense- imprudent or negligent. In such cases the plaintiff may recover from a defendant at fault. 1

’ ' 2. Where the conduct of the plaintiff has been imprudent or negligent; but such imprudence or negligence has.not contributed to the accident. In such cases the plaintiff ■may recover from a defendant at fault.

3. Where the conduct of the plaintiff has been negligent and has contributed, to the disaster. In such cases the plaintiff can not recover, even though the defendant be at fault.

The above rule was approved in Hanson, Tutor, vs. Railway Transportation Co., 38 La. Ann. 111. In that case a party about to take a seat in the cab of a locomotive, noticed and spoke o£ what he took to be an imminent and threatening danger and got up and started to leave, but being assured by the engineer that there was no danger, he consented to remain and was the next instant seriously injured by an explosion, the danger of which he had noticed. The question of obvious danger, assumed risk and contributory negligence was carefully examined and the court came to the conclusion that plaintiff could recover under the facts of the case.

In Summers vs. Crescent City R. R., 34 La. Ann. 139, the question of obvious danger and contributory negligence and assumed risk was involved and the court announced the governing principles, and we think the court’s conclusion pertinent to the present case.

In Clerc vs. Morgan’s Louisiana & Texas R. R., 107 La. 370, pp. 377 to 382; 31 South. 886; the same questions of obvious danger, assumed risk and contributory negligence again underwent a close examination and the conclusion reached in Summers vs. Crescent City R. R., 34 La. Ann. 139, was approved. We think the reasoning of the court in 107 La. 370 pertinent to the present situation.

In the case, Mary Cline vs. Crescent City R. R., 43 La. 327, 9 South. 122, the court says, p. 334:

“To constitute contributory negligence, there must be a want of ordinary care and a proximate connection between that and the injury.”

Ip Ferris vs. Hernsheim, 51 La. Ann. 178, 24 South. 771, the court, speaking of contributory negligence, says, p. 180:

“It has been aptly stated to be, a want of ordinary care upon the part of the person injured, by the actional negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which, the injury would not have occurred.”

In Ruling Case Law, Yol. 20, Section 113, p. 136, it is said on the subject of proximate cause:

“To defeat a recovery under the common law rule, the plaintiff’s negligence must have co-operated with the negligence of the defendant and contributed to produce the injury complained of. As it is expressed, the plaintiff’s negligence must have been entered into and formed part of the efficient cause of the injury. If it operated only remotely and not proximately to cause the damage, the plaintiff is not barred of redress.”

The burden of proof is upon defendant to show that plaintiff’s husband was guilty of contributory negligence. Casey vs. Abraham & Son, 113 La. 589, 37 South. 484; Weis vs. N. O. Ry. & Light Co., 133 La. 14, 62 South. 216.

Defendant alleges and urges that Mr. Hudson drove under the pole and stopped so close to it, that he thereby compelled its employees to shift their position to avoid being struck and that he was responsible for the fall of the pole. Two witnesses made remarks while testifying, that Mr. Hudson might have caused the pole to fall by driving his automobile so close to the men; but they do not make a positive statement to that effect. They do not directly say that he caused the pole to fall, but rather advance that idea as something that he could have done. Asked directly how the pole came to fall, both Johnson and Phelps say that they don’t know what caused it, hut they thought it was due to the fact that it was loosely and not securely held by the points of the pikes. They both testified that the pole fell straight down to the ground. That is what would take place, if the pikes under it had not been stuck into it deep enough to securely fasten and hold it, and that is no doubt why it fell.

The evidence does not warrant the conclusion that Mr. Hudson’s driving up and stopping where he did, caused the men to lose control of the pole, or contributed to its fall.

Defendant urges that Mr. Hudson should have used some other street. He was not required to take another street, unless he had timely seen and comprehended the danger from the pole. The pole and the men holding it up was an unexpected and veritable deadfall, in the act of dropping at the time he discovered his peril.

We are satisfied from the evidence that the death of plaintiff’s husband was due to defendant’s negligent elevation and handling of a pole of such length, size and weight over a frequently used street, taking no precautions to keep people from coming under it. That the danger was not obvious ■to Mr. Hudson before he drove up and stopped under it; that he was in fact unaware of the peril. We do not think that under the facts and circumstances, his act in driving up and stopping as he did, can be classed as contributory negligence, helping in a proximate way to bring about the fall of the pole and his own death.

The judgment appealed from is in our opinioii correct.

Judgment affirmed. Defendant and appellant to pay the cost in both courts.


source: Caselaw Access Project

author: REYNOLDS J.

license: Public Domain

text:
    No. 3089
    Second Circuit
    STATE, EX REL. SIDNEY GRAHAM vs. O’QUINN, ET AL.
    (November 10, 1927. Opinion and Decree)

      (Syllabus by the Court)
    1. Louisiana Digest — Courts—Par. 52.
    “In preparing the record for appeal to this court, clerks of the district courts shall bind or fasten the pleadings, evidence and all other documents in the case, * * * fastened together at the top or side of the pages, and covered with cardboard or other suitable material, numbering and listing all the pleadings, evidence and documents filed in the case, together with a certified copy of the minutes of the court in the case, and with a certificate of the clerk, under his seal of 'office, that the record as thus made up is true and correct. The record and the clerk’s certificate shall be sent to the clerk of this court, at the city of Shreveport, Louisiana, in time to be filed in this court before the delay for its return expires. It shall be the duty of the clerk of this court to refuse to receive, file or docket in this court, any record not made up in accordance with the foregoing rule.”
    Rule II, Rules of the Court of Ap- • peal, Second Circuit..
    Rule quo ad respondent B. S. Swett made absolute. Rule quo ad respondent A. H. O’Quinn discharged.
    J. W. Jones, of Natchitoches, attorney for applicant.
    A. H. O’Quinn, of Shreveport, attorney for respondents
    STATEMENT OP THE CASE
    On application of relator a rule was granted directed to A. H. O’Quinn as stenographer and B. S. Swett as clerk of the District Court of Natchitoches parish to show cause, the former why he should not reduce to longhand writing his shorthand notes of the testimony taken on the trial of the case of Sidney Graham versus M. T. McCrory in said court and numbered 18,435 on its docket and file the same in the office of the clerk of said court, and the latter, why he should not deliver the testimony, when so written out and filed, to relator’s counsel to be by him filed in this court as a part of the record on appeal in the said case of Sidney Graham vs. M. T. McCrory, No. 2814 on the docket of this court.
    Respondent A. H. O’Quinn answered that the notes of the testimony had been written out in longhand and had been filed in the office of the District Court. Quo ad him, therefore, the issue presented by the petition has become moot and need not be passed upon.
    Respondent Swett answered the testimony could not be delivered to relator’s counsel nor put into the record for the reason that the fees of the stenographer for taking down the testimony in shorthand and writing the same out in longhand had not been paid.
   REYNOLDS J.

OPINION

Under rule II of this court it is the imperative duty of the clerks of the district courts, when an order of appeal has been granted to this court and the appeal perfected by the filing of an appeal bond, to send to the clerk of this court, at Shreveport, Louisiana, before the delay for doing so expires, all the pleadings, evidence and documents filed in the case, together with a certified copy of the minutes of the court in the ease, and with a certificate, under his seal of office, that the record as thus made up is true and correct, and covered, fastened or bound as prescribed by said rule.

The answer of- respondent Swett admitting that in the case in question he had not complied with the rule and the reasons assigned by him not being a legal excuse therefor, the rule, as to him, is made absolute.

Relator also asked that the stenographer and clerk show cause why they should not transmit to this court a verified bill of the cost of the taking down in shorthand and writing out in longhand the testimony in question.

This court is one of appellate jurisdiction only, and could only consider the correctness of the bill in question or the legality of the fees demanded after those questions had been presented to and adjudged by the district court.

It is, therefore, ordered that quo ad respondent B. S. Swett the rule be made absolute and that he transmit to the clerk of this court to be filed here as a part of the record on appeal in the case of Sidney Graham vs. M. T. McCrory, No. 2814 on the docket of this court, the testimony taken down in shorthand and written out in longhand by the stenographer on the trial of said case in the district court and filed in the clerk’s office.

It is further ordered that quo ad respondent A. H. O’Quinn the rule be discharged.

It is further ordered relator’s demand that the stenographer and clerk transmit to this court a verified bill of the fees demanded for the taking down in shorthand and writing out in longhand of the testimony in question and that this court pass upon the correctness and legality thereof be denied.


author: REYNOLDS, J.

text:
    No. 3072
    Second Circuit
    HITT v. HERNDON
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Payment—Par. 19.
    The plea of payment admits the existence of the debt sued on and casts upon the defendant the burden of establishing his plea.
    Johnson vs. Jones, 5 La. App. 220.
    2. Louisiana Digest — Appeal—Par. 625.
    Where only issues of fact are involved the judgment of the trial court will not be disturbed unless manifestly erroneous.
    Colt vs. Willhite, 5 La. App. 151.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. . Samuel, Judge.
    Action by Walter Hitt against James R. Herndon.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. G. Gibbs, of Shreveport, attorney for plaintiff, appellee.
    Cook & Cook, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit on a promissory note. The defense was payment. On this issue the case was tried and there was judgment for plaintiff and defendant appealed.

OPINION

Only a question of fact is presented for our determination, namely: was the note paid?

The only witnesses who testified in the case were plaintiff and defendant.

Defendant swore positively that he had ©aid it, and by way of corroboration of his testimony produced and filed in evidence two checks drawn by him on the City Savings Bank & Trust Company in favor of the plaintiff for the sum of $50.00, dated April 20, 1923, and the other for the sum of $60.00, dated February 26, 1924, and both of which were paid by the bank.

Plaintiff also swore positively that the note was not paid and that the checks were given in payment of other debts. He is corroborated by possession of the note itself, which he filed with his petition as the basis of his suit, and which shows no credits endorsed on it.

Defendant’s testimony is diametrically opposite to that of the plaintiff and is set off by that of plaintiff. The burden was on him to establish his defense.

We have carefully read the record and are unable to say that the judgment of the trial court is manifestly erroneous.

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


text:
    No. 3057
    Second Circuit
    CUMMINGS v. GRIGGS
    (Nov. 10, 1927. Opinion and Decree.)

      (Syllabus 6y the Court)
    1. Louisiana Digest — Exemptions From Seizure — Par. 11.
    One employed by a railroad company to patrol its freight yards and to nail up the doors of freight cars where they have become loose and to reseal such doors where the seals thereto are broken is a laborer within the meaning of Article 644 of the Code of Practice whose wages as such are exempt from seizure.
    State, ex rel., vs. Land, Judge, 108 La. 512, 32 South. 433.
    Schroeder vs. Collins, 113 La. 778, 37 South. 722.
    Cole vs. Grant, 144 La. 915, 81 South. 398.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuel, Judge.
    Action by H. C. Cummings against T. B. Griggs. Texas & Pacific Railway Company, garnishee.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Dimick & Hamilton, of Shreveport, attorneys for plaintiff, appellee.
    Crow & Coleman, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

Plaintiff recovered judgment against defendant in the City Court of the city of Shreveport on February 23, 1926, for the sum of $200.00 with interest thereon at the rate of 8% per annum from June 25, 1923, and 10% on the amount of principal and interest as attorney’s fees, and the sum of $101.40 owing to him by the garnishee Texas &• Pacific Railway Company was seized. Defendant moved in court a quo to dissolve the garnishment on the ground that the wages seized were earned by him in the capacity of a laborer and under Article 6,44 of the Code of Practice were exempt from seizure. Plaintiff answered the motion denying that plaintiff was a laborer and that the wages ;were exempt from seizure. Defendant claimed $50.00 damages for wrongful seizure.

On these issues the case was tried and there was judgment denying the plaintiff’s claim of exemption and he appealed. *

OPINION

The only question to be decided is, was the defendant a laborer within the meaning of Article 644 of the Code of Practice exempting laborers’ wages from seizure.

The only evidence as to the character of work defendant was performing is the testimony of the defendant himself. He testified (Evidence, pages 28 et seq.):

“Q. How did you earn those wages; what were you doing; what was the nature of your work?
“A. Special officer for the railroad.
“Q. What were your actual duties?
“A. My duties were to watch the merchandise cars; if I found any open, to take hammer and nails and cleat and nail the door up, and nail the cleat on there, and rewire the door and make report of that to the chief.
“Q. What chief?
“A. Special agent.
“Q. Where is he?
“A. At Dallas, Texas.
“Q. Did your duties require you to look after thieves, robbers, things like that, or any one that might be trespassing on the property of your employer?
“A. Yes, sir.
“Q. Suppose that you found robbers or trespassers or pilferers on the property of your employer, what did you do?
“A. Well, if they were just trespassers or anything like that, I order them off of the right of way and make them get off; and if I catch them pilfering any of the cars, then I bring them to town and put them in jail and wire the chief to come' up and make the charges as he sees fit. * * * *
“Q. When — what part of the day did you usually take up in looking after this property?
“A. I start about seven o’clock in the afternoon and quit about six o’clock in the morning.
“Q. Your work is practically all at night then?
“A. Yes, sir.
“Q. In what attitude did you do this work? I mean by riding, walking or standing, or how?
“A. I have to patrol the yards, walking up and down from one end of the yards to the other, and I pull the seals on these cars to see if they are broken or not, and I put them back together as if they were, good.
* * * *
“Q. Suppose in the discharge of your duties you were to find an obstruction on the railway track, like a crosstie or anything, what would you do?
“A. I would move it.
“Q. Would that be a part of your duty?
“A. Yes, sir.”

This evidence indicates that defendant was not a skilled laborer. No special education or training was required for the proper performance of his duties. .His work was only that of an ordinary. laborer.

It was .held in the case of Schroeder vs. Collins, 113 La. 778, 37 South. 722, that the duties of a switchman were those of an Drdinary laborer and that the wages of such an employee were exempt from seizure, and we are unable to see wherein the work defendant was performing for his employer required more skill or experience than does the work of a switchman.

Under the law and the evidence the judgment appealed from is erroneous.

Defendant asks for $50.00 damages for wrongful seizure of his wages; but thé record contains no proof of any damage sustained by him by reason thereof.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the writ of garnishment served on the garnishee Texas & Pacific Railway Company be recalled' and quashed and the seizure made thereunder released.

It is further ordered, adjudged and decreed that defendant’s demand for damages against plaintiff for wrongful seizure be dismissed as in case of non-suit'.


text:
    No. 3047
    Second Circuit
    YOUNG v. PETTY STAVE & LUMBER CO.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus- by the Court)

    1. Louisiana Digest — Master and Servant— Par. 153.
    The Workmen’s Compensation Law cannot become operative' between two persons until the relation of employer and employee exists between them.
    2. Louisiana Digest — Master and Servant— Par. 154, 156.
    One is not liable as principal to the employee of another under Section 6 of Act 85 of 1926 when no contractual relation existed between him and the employer.
    3. Louisiana Digest — Obligations—Par. 9, 12.
    A letter from a corporation to an individual reading as follows, to-wit: “Your kind favor of the 27th inst. received and note that you want to put some oak bolts out on the road if we will take them up down there. Yes, we will take them up as they are loaded if you will call or write us as soon as you get the car out” — is a mere offer to contract, and, in the absence of proof of acceptance of the offer by the person to whom it was made, does not create any contractual relation between the person making it and him to whom it is made.
    C. C. 1779.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Bienville. Hon. John A. Richardson, Judge.
    Action by Levi B. Young against C. P. Petty Stave & Lumber Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Wimberly & Wallace, of Arcadia, attorneys for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
    STATEMENT OP THE CASE
    This is a suit under the Workmen’s Compensation Law.
    The petition alleges that defendant contracted with one T. T. Parrar to get out Stave bolts for it and that said Parrar employed the petitioner to get out the stave bolts for him at a daily wage of $3.50.
    He further alleges that while performing services arising out of and incidental to his employment a tree fell on him and so badly crushed his left leg that it had to be amputated.
    He asked for compensation at the rate of $12.35 a week fccr one hundred and twenty-five weeks and for $200 medical and .hospital bills.
    On trial in the lower court plaintiff’s demands were rejected and his suit dismissed and he appealed.
   REYNOLDS, J.

OPINION

Plaintiff’s able counsel has furnished us with a brief in which all the law bearing upon Section 6 of Act No. 85 of 1926 is fully and exhaustively presented and we have read it with much interest; and while we agree with counsel in much that' they say, we are unable to accept their contention on the crucial point in the case, namely: that the relation of principal and contractor or employer and employee existed between T. T. Farrar and defendant.

In our opinion the letter from defendant to T. T. Farrar dated November 30, 1926, relied on by plaintiff as establishing such relation was a mere offer by defendant to Farrar to enter into a contract with it, which offer was not accepted by Farrar, and in the absence of acceptance it could create no contractual relation between them nor any liability on the part of defendant to plaintiff under Section 6 of Act 85 of 1926 as an employe of Farrar.

Had a contract been entered into between defendant and Farrar in pursuance of the offer contained in the letter defendant might have been liable to plaintiff for the compensation claimed, but, as to this, we express no opinion; but no contract having been entered into between them, defendant could not become so liable.

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


author: ODOM, J.

text:
    No. 2370
    Second Circuit
    TATUM v. McWILLIAMS, ET AL.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus 6y the Court)

    1.Louisiana Digest — Attachment—Par. 41.
    “In the absence of personal service against a non-resident to vest a court with jurisdiction, two conditions must concur: (1) There must be property of the non-resident in the territorial jurisdiction of the court; and (2) the property must be validly seized or levied upon under process issued by the court.”
    2. Louisiana Digest — Attachment—Par. 41.
    Where plaintiff is granted an order for a writ of attachment upon the sole ground that defendant is a non-resident of the state and is transiently within the jurisdiction of the court, a writ issued thereunder, addressed to the sheriff of a parish beyond the territorial jurisdiction of the court issuing the order and such sheriff’s seizure of the absentee’s property in another parish, are null and void.
    3. Louisiana Digest — Attachment—Par. 41.
    Where a court once ' obtains jurisdiction over a non-resident by seizure of some property within its territorial jurisdiction, it may extend its process and have attached property of the absentee in other parishes upon showing tha.t the property originally seized is insufficient to pay the debt, but not otherwise.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine. Hon. Hal. A. Burgess, Judge.
    Action hy H. G. Tatum against Fred McWilliams, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Ponder & Ponder, of Many, attorneys for plaintiff, appellant.
    Parsons & Colvin, of Mansfield, attorneys for defendants, appellees.
    STATEMENT OF THE CASE
    On December 24, 1924, plaintiff brought suit in the District Court of Sabine parish against Fred McWilliams and N. R. Tatum to collect an alleged debt of $438.22. He alleged that the defendant, Fred McWilliams, is—
   ODOM, J.

“a non-resident of this state, resident of Union County,' Arkansas, hut temporarily and transiently in Sabine parish, or in your said state of Louisiana.”

And, in .paragraph 6 of the petition:

“That said Fred McWilliams resides permanently out of the state of Louisiana, and has so resided for some six or eight years, and a writ of attachment is necessary to protect petitioner’s rights against him.”

Plaintiff does not allege that the defendant McWilliams owns property in the parish of Sabine or elsewhere in the state.

On the same day, December 24th, the clerk of the District Court of Sabine parish made the following order:

“On considering the above and foregoing . petition and affidavit, it is ordered that the writ of attachment issue as prayed for upon petitioner making bond as required by law.”

So far as the record before us discloses, the plaintiff did not annex to his petition at the time it was filed, nor later, his obligation in favor of the • clerk with surety as required by Article 245 of the Code of Practice. However, on the following day the clerk of the District Court of Sabine parish, where the suit was filed, issued a writ of attachment addressed to the sheriff of DeSoto parish. The writ was sent to the sheriff of DeSoto ¡parish and, according to his return thereon, he attached, on December 25th, one Buick automobile belonging to the defendant, Fred McWilliams, which car had on it an Arkansas license, and, on the following day, he served a certified copy of the writ, together with notice of seizure, on the said-McWilliams in person in Mansfield, DeSoto parish.

The clerk of court of Sabine parish did not issue a writ of attachment addressed to the sheriff of Sabine parish, where the suit was instituted. There is no allegation and no proof that the defendant McWilliams owned property in the parish of Sabine, and he was not served or cited in that parish personally.

On January 19, 1925, defendant, Fred McWilliams, filed an exception to the jurisdiction of the court, which exception was overruled, whereupon, on January 24th, he moved to dissolve the writ of attachment on the ground that the same was illegal, null and void, having been directed to the sheriff of DeSoto parish without any order for such writ.

The motion to dissolve the writ was sustained by the court below, and plaintiff appealed.

OPINION

The exception to the jurisdiction of the court should have been sustained.

A creditor unquestionably has the right to have the property of his non-resident debtor attached.

Code of Practice, Articles 240 and 243.

United States vs. Murdock, 18 La. Ann. 305.

Sandel vs. George, 18 La. Ann. 526.

Allison vs. Brown, 148 La. 530, 87 South. 262.

“In the absence of personal service against a non-resident, to vest a court with jurisdiction, two conditions 'must concur: (1) There must be property of the nonresident in the territorial jurisdiction of the court; and (2) the property must be validly seized or levied upon under process issued by the court.”

Pugh vs. Flannery, 151 La. 1063; 92 South. 699.

Plaintiff chose the District Court of the parish of Sabine in which to bring his suit, and alleged that defendant, while a resident of Arkansas, was transiently or temporarily in that parish at the time; but so far as the record discloses he was not in that parish, and he was not personally served with process therein.

Not only that, he owned no ¡property in the territorial jurisdiction of that court— at least none was validly seized or levied upon under the process issued hy the court.

It is therefore perfectly clear that the District Court of Sabine parish had no jurisdiction to determine the issues between the plaintiff and the absentee defendant, and we think the District Court erred in not sustaining the exception.

However, the court sustained defendant’s motion to dissolve the writ of attachment, and its ruling in that respect was correct.

Plaintiff alleged that the defendant, absentee, was transiently in the parish of Sabine and obtained an order, signed by the clerk, to attach his property. Under said order the clerk issued his writ, but addressed it to the sheriff of the parish of DeSoto, to whom it was sent, and the sheriff of that parish seized an automobile belonging to the defendant, said property, at the time of the seizure, being in Mansfield, DeSoto parish, heyond the territorial jurisdiction of the District Court of Sabine parish, where the suit was instituted.

The court of Sahine parish had authority to order attached any iproperty which the absentee owned situated in that parish, hut' in the absence of further showing and before obtaining jurisdiction over the absentee and his property, it could not attach the absentee’s property situated outside of its own territorial jurisdiction.

Of course, if some property of the absentee had been seized in that parish and the court had obtained in that way jurisdiction, the plaintiff could have, • upon proof that the property seized therein was not sufficient to satisfy his claim, procured a writ of attachment against defendant’s property situated in any other parish in the state.

But unless the court obtains jurisdiction by seizing iproperty of an absentee within its territorial jurisdiction, it cannot extend its process into another parish.

On this point the court, in the case of Kahn & Bigart vs. Sippili, 35 La. Ann. 1039, said:

“It is undeniable that the court where the proceedings were instituted, and which issued the first process, does acquire some jurisdiction over the cause, and at once obtains control of the property attached within its territorial jurisdiction, and to the end of deciding whether such property can be legally applied to the satisfaction of plaintiff’s claim, it must, of necessity, adjudicate on the sum, and ascertain the amount or extent of the defendant’s indebtedness. Having such jurisdiction, it necessarily has the power, on proper showing of the insufficiency of the property thus attached, and of the existence of other property of the absentee in the state, to extend its process to the same, and to thus subject it to its control.”

The writ of attachment issued by the clerk of the District Court of Sahine parish ordering the sheriff of the parish of DeSoto to seize the absentee’s property and his attachment of defendant’s property in that parish, were illegal, and the' court’s judgment dissolving them must he sustained.

We do not think it necessary to discuss other points raised in counsel’s brief.

The judgment appealed from is affirmed, with costs.


text:
    No. 2354
    Second Circuit
    HART v. HEWITT
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Petitory and Possessory Actions — Par. 41.
    Where a suit for slander of title was converted into a petitory action by answer asserting title in defendant, damages could not be recovered.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Bienville. Hon. John S. Richardson, Judge.
    Action by Ed. Hart against James Hewitt.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed in part and reversed in part.
    J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellee.
    W. U. Richardson, of Arcadia, attorney for defendant, appellant.
    SYLLABUS
    Plaintiff, Ed. Hart, alleging that he was the record owner and in actual physical possession of the SE% of the SE% of Section 1, Township 18 North, Range 7 West, in Bienville parish, Louisiana, and that defendant, James Hewitt, had slandered his title thereto by causing to be recorded on the conveyance records of said parish an act of sale purporting to sell and convey said land to him, sued the defendant to have the record of the sale cancelled and for $150.00 damages.
    Defendant, in answer, denied title to the land in plaintiff and asserted title thereto in himself and prayed that plaintiff’s demand be rejected and he be decreed the owner thereof.
    On these issues the case was tried and judgment was rendered in favor of the plaintiff, Ed. Hart, and against the defendant, James Hewitt, ordering cancellation of the record of the sale of the land to defendant and awarding plaintiff damages in the sum of $150.00.
    From this judgment defendant, James Hewitt, appealed. Subsequently to the proceedings in the District Court the plaintiff, Ed. Hart died, and by proper proceedings in this court his widow and heirs were mqde plaintiffs herein in his stead.
   REYNOLDS, J.

OPINION

In this court the defendant, James Hewitt, does not question the correctness of that part of the judgment appealed from as orders cancellation of the record of the sale to him of the land in controversy but only complains of the award of damages to plaintiff.

Plaintiff did not allege that defendant was in bad faith in obtaining or putting on record the act of sale in question and as bad faith is not alleged nor proved, good faith will be presumed.

The action having been converted from one of slander of title into a petitory one by defendant’s answer and the relative merits of the titles of both plaintiff and defendant to the land having been put at issue and adjudicated, damages should not have been allowed.

This question was definitely decided, by the Supreme Court-in the ease of Smith vs. Albritton, 153 La. 507, 96 South. 49, where it held that—

“in such cases (actions for slander of title) when the defendant, by his answer, has converted the suit into a petitory action”

damages will not be allowed.

It is, therefore ordered, adjudged and decreed that the judgment appealed from be reversed insofar as it awards plaintiff, Ed. Hart, judgment against defendant, James Hewitt, for damages in the sum of one hundred and fifty dollars and also insofar as it decrees that defendant, James Hewitt, shall pay all costs of the suit, and that it be affirmed in all other respects.

It is further ordered, adjudged and decreed that defendant, James Hewitt, pay-all costs of suit incurred in the District Court, and that plaintiffs pay the costs of this appeal-


text:
    No. 2351
    Second Circuit
    TOWN OF SOUTH HIGHLANDS v. COOK
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of a trial court on a question of fact will not be disturbed unless clearly erroneous.
    Colt vs. Willhit, 5 La. App. 151.
    2. Louisiana Digest — Automobiles—Par. 4; Master and Servant — Par. 164, 166.
    Where the driver of a motor-driven hearse, in the course of his employment, drives it into a motorcycle standing in open view to him on the left hand side of a public road in the direction, that the hearse was moving, his empioyer will be responsible for the damage done to the motorcycle.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuel, Judge.
    Action by the Town of South Highlands against C. C. Cook.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    B. F. Roberts, of Shreveport, attorney for plaintiff, appellee.
    J. D. Snell, of Shreveport, attorney for defendant, appellant.
    STATEMENT OF THE CASE
    The Town of South Highlands sued the defendant to recover the sum of $105.65 damages done to a motorcycle belonging to the plaintiff, run into by a motor-driven hearse belonging to defendant by one of his employees in the course of his employment.
    The defense was a general denial.
    The trial court rendered judgment in favor of the plaintiff for the full amount claimed and defendant appealed.
    Pending the appeal, the' Town of South Highlands having been absorbed by the City of Shreveport, on motion in this court the latter was substituted as plaintiff, appellee, in place of the former.
    The plaintiff, appellee, filed a motion to dismiss the appeal on the ground that no appeal bond had been given.
    ON MOTION TO DISMISS APPEAL
    We find an, appeal bond in the record and hence the motion to dismiss the appeal must be overruled.
   REYNOLDS, J.

ON THE MERITS

Only an issue of fact is involved, namely, was defendant’s employee at fault in running his motor-driven hearse into plaintiff’s motorcycle?

W. J. Best testified (evidence, page 10):

“Q. You say this boy (referring to the driver of defendant’s hearse) was looking' back?
“A. Yes, sir; when I looked up he was looking back; had his head stuck out of the car looking back and this boy sitting side of him hollering at him.
“Q. Looking back at the car the preacher was in?
“A. Yes, sir.”

Earle Crane testified (evidence, pages 10 and 11):

“Q. I would like for you to describe just wbat you saw there?
"A. * * * * Mr. Best, when I saw him I saw he was — he had his motorcycle just rolling it out in the middle of the road, and the boys in the hearse were apparently interested in something to the back of the car, apparently saying something to the party in the car, whom I afterwards learned was the preacher, * * * *
“Q. Well, at the point where the collision occurred or where the motorcycle was at the time of the collision, was it to the left of the center of the road, or do you know?
“A. The motorcycle — coming south the motorcycle was to the left of the center. I imagine when the collision occurred the front end of the motorcycle was just about the center of the road.
“Q. Was there room for the hearse to have passed to the west of the motorcycle ?
“A. Yes, sir.
“Q. If the hearse had remained on the right hand side of the road going south the collision would not have occurred?
“A. No, sir; if the hearse had been on his extreme right hand side he wouldn’t, have hit the motorcycle.”

Learned counsel for defendant insists that the evidence shows the witness Best was too close to the hearse when he first saw it to see the driver pf it looking back; but the witness is corroborated in his testimony on this point by the witness Crane and the trial judge who heard him testify accepted his testimony as true and gave plaintiff judgment.

The amount claimed by plaintiff was the amount paid by it to have the motorcycle repaired and it is pot shown that the cost was unreasonable. ■ . ■

The witness Best testified that the defendant told him to have the motorcycle repaired at his expense and the defendant admits this and only complains that the expense was excessive.

We have read the record carefully and it satisfies us that the judgment appealed from is correct and accordingly it is affirmed.


text:
    No. 2456
    Second Circuit
    FERGUSON v. CADY-McFARLAND GRAVEL COMPANY
    (April 24, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — ¡Master and Servant —Par. 153, 154.
    The Workmen’s Compensation Law of Louisiana furnishes to an employee protection against all risks to which he may be exposed by his employment.
    2. Louisiana Digest — Master and Servant Par. 154, 158.
    A narrow construction should not be placed on the terms of the 'statute requiring ■ that the accident should arise out of the employment. Dyer vs. Rapides ■ Lumber Co., 154 La.' 1091, 98 South. 677.
    3. Louisiana Digest — Master and Servant —Par. 158.
    An employee who is killed without provocation by an engineer in charge of a railroad locomotive at a time and while the employee is actually engaged in repairing a rail cock-joint over which the engineer is to drive his locomotive, is within the protection of the Workmen’s Compensation Law.
    4. Louisiana Digest — Master and Servant Par. 154.
    The Employers’ Liability Act should not be construed strictly in favor of the employer but rather liberally in favor of the employee and his dependent relatives. Jones vs. Powell Lumber Co., 156 La. 768, 101 South. 135.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides. Hon. L. L. Hooe, Judge.
    Action by Alice Ferguson against CadyMcFarland Gravel Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    George J. Ginsberg, of Alexandria, attorney for plaintiff, appellee.
    John H. Overton, of Alexandria, attorney for defendant, appellant.
    STATEMENT OF THE CASE
    In this case Alice Ferguson sues for herself and her three minor children under the Workmen’s Compensation Law to recover compensation for the death of Peter Ferguson, husband of Alice Ferguson, and father of the minors.
    Peter Ferguson was employed by CadyMcFarland Gravel Company and while standing in a stooping position and engaged in repairing defendant’s railroad track he was struck on the head with a piece of iron and killed by one J. H. Teddor, a locomotive engineer, also employed by defendant and engaged in operating a locomotive used in hauling gravel from defendant’s gravel pit.
    Defendant denied liability on the ground that the homicide, as shown by the allegations of plaintiff’s petition, was not an accident arising out of Ferguson’s employment.
    This question was presented by way of an exception of no right or cause of action to plaintiff’s petition.
    The District Judge sustained the exception and the plaintiff appealed.
    This court certified the question to the Supreme Court for instructions, and the Supreme Court answered that the petition did set forth a cause of action. Thereupon this court reversed the judgment of the lower court and remanded the case for trial. A trial on the merits was had in the District Court and judgment was rendered in favor of the plaintiff. From that judgment defendant has appealed.
   REYNOLDS, J.

OPINION

The questions presented for determination in this case have been, we think, decided by the Supreme Court in favor of the plaintiff in passing of defendant’s exception of no right or cause of action.

That court decided that plaintiff’s petition did express a cause of action, and the evidence in the case we think establishes the verity of fell the allegations of the petition, except, perhaps, the allegation that Ferguson, the deceased, and Teddor, who slew him, were fellow employees. But the fact, if it be a fact, that they were not fellow employees, is not, we think, of any importance. They both were working for the defendant and their work threw them together, Ferguson in repairing the track over which Teddor operated jhis locomotive.

Besides this, the Workmen’s Compensation Law makes the employer liable for an injury to an employee through the tort of a third person; and much more so is the employer liable, when the injury occurs through the tort of a superior upon a subordinate employee.

Defendant’s counsel insists with great force that the evidence of Teddor who killed Ferguson, and his foreman, Rudolph Adams, shows that the homicide was the result of an altercation between Teddor and Ferguson in which Ferguson was the aggressor. We are much impressed with counsel’s contention, but are not unmindful of the fact that Plato is said to have been able to make the “worse appear the better reason”.

Under all the evidence found in the record we are convinced that Ferguson was killed by Teddor while he was at work in a stooping position without knowing that he was being attacked by Teddor.

For the above reasons the judgment of the lower court is affirmed.


text:
    No. 2358
    Second Circuit
    SHREVEPORT NATATORIUM & AMUSEMENT COMPANY, INC. v. WATERMAN
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Courts—Par. 52.
    Rule II of this court provides: “In preparing the record for appeal to this court, clerks of the district courts shall bind or fasten the pleadings, evidence and all documents filed in the case, except such documents and articles as cannot be conveniently so bound, in book form, fastened together at the side or top of the pages, and covered with cardboard or other suitable material, numbering and listing all the pleadings, evidence and documents filed in the case, together with a certified copy of the minutes of the court in the case, and with a certificate of the clerk, under his seal of office, that the record as thus made up is true and correct. The record and clerk’s certificate shall be sent to the clerk of this court, at the city of Shreveport, Louisiana, in time to be filed in this court before the delay for its return expires. It shall be the duty of the clerk of this court to refuse to receive, file, or docket in this court, any record not made up in accordance with the foregoing rule.” (Italics ours.)
    2. Louisiana Digest — Appeal—Par. 745, 747.
    Where, after a record on appeal has been properly made up and filed in this court it is withdrawn and used in evidence in the district court in a case on trial there and while there is inadvertently disorganized and is no longer in the condition required by Rule II of this court, the case will be remanded to the district court to be reformed into the condition required by the rule of this court.
    Smith vs. Jenkins, 147 La. 437, 85 South. 68.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo.
    Action by Shreveport Natatorium & Amusement Company, Inc., against A. C. Waterman.
    There was judgment for plaintiff and defendant appealed.
    Judgment annulled and case remanded for trial de novo.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for plaintiff, appellee.
    Dickson & Deny, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

This case was duly submitted for decision. The record on appeal was made up in accordance with the requirements of the rule of this court and timely lodged here, but thereafter it was withdrawn from the files of this court and used as evidence in the district court in a case on trial there and while there was inadvertently disorganized and is no longer in the condition prescribed by Rule II of this court.

Defendant, appellant, asks that the judgment be annulled and the case remanded to the District Court for new trial, because of the disorganized condition of the record, and plaintiff, appellee, resists the granting of the request.

Rule II of the rules of this court provides:

“In preparing the record for appeal to this court, clerks of the District Court shall bind or fasten the pleadings, evidence and all documents filed in the case, except such documents and articles as cannot be conveniently so bound, in book form, fastened together at the side or top of the pages, and covered with cardboard or other suitable material, numbering and listing all the pleadings, evidence and documents filed in the case, together with a certified copy of the minutes of the court in the case, and with a certificate of the clerk, under his seal of office, that the record as thus made up is true and correct. The record and clerk’s certificate shall be sent to the clerk of this court, at the city of Shreveport, Louisiana, in “time to be filed in this court before the delay for its return expires. It shall be the duty of the clerk of this court to refuse to receive, file or docket in this court, any record not made up in accordance with the foregoing rule." (Italics ours.)

In the ease of Smith vs. Jenkins, 147 La. 437, 85 South. 68, the Supreme Court, in dealing with a somewhat similar condition of things, said:

“Where the record is lost and a complete transcript cannot be made for that reason, the case will be remanded so that the pleadings may be supplied in accordance with the law and the case tried de novo.”

And we think that the course ordered to be followed there should be ordered to be pursued here.

It is therefore ordered that this case be remanded to the district court and that the record be reconstituted in accordance with Rule II of this court and delivered to the clerk of this court on or before December 1, 1927, and, in default thereof, that the judgment appealed from be annulled and the case remanded for trial de novo.


text:
    No. 2726
    Second Circuit
    BRENT v. LOUISIANA STATE LIFE INSURANCE CO.
    (June 28, 1927. Opinion and Decree.)
    (July 25, 1927. Rehearing Refused.)
    (October 3; 1927. Writs of Certiorari and Review Refused by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Insurance—Par. 160.
    Where the defendant insurance company refuses to pay an annuity for more than thirty days after due, because of an erroneous construction of its policy and the law applicable thereto, the delay is due to defendant’s fault and the penalties prescribed by Section 3 of Act No. 310 of 1910 of double the amount due and attorney’s fees should be paid.
    2. Louisiana Digest — Attorneys—Par. 60.
    Where in a suit for attorney’s fees as a penalty prescribed by Section 3 of Act No. 310 of 1910 regarding payment of insurance, the court had personal knowledge of services rendered by counsel, the court can fix a fee without hearing testimony.

      Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Charles M. Brent against Louisiana State Life Insurance Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. M. Pyburn, J. F. Hardin, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

On November 15, 1923, the defendant, Louisiana State Life Insurance Company, issued to Charles N. Brent, the plaintiff, a policy of insurance which provided, among other things, that in case the assured became totally disabled during the life of the policy he should receive an annuity of $50.00 per month. The assured became totally disabled on April 18, 1925. Due proof of such disability was promptly made out and filed with the company on June 1, 1925, which proof was satisfactory to the company and approved.

The company failed to make any monthly payment to the assured.

This suit was filed on January 15, 1926, the assured claiming not only the monthly payments of $50.00 from the time he became disabled but claiming an additional sum of $50.00 per month as penalty for the company’s failure to make payment promptly as provided in Act No. 310 of 1910. He also claimed reasonable attorney’s fees.

The lower court gave judgment in favor of the plaintiff for indemnity at $50.00 per month from July 1, 1925, and a like amount as penalty for defendant’s failure to make the payments promptly, and also attorney’s fees in the sum of $150.00.

The defendant appealed.

OPINION

Defendant admits its liability for the monthly annuity as awarded by the court, but denies liability for the penalty claimed and inflicted by the court.

So that the only question presented on the appeal is whether the defendant is liable for the penalties, including attorney’s fees.

Section 2 of Act No. 310 of 1910, which applies in this case, reads as follows:

“That payment by such companies to the assured shall not be delayed for a longer period than thirty days from due notice and proof of disability, without just and reasonable grounds such as to put a reasonable and prudent business man on his guard.”

Section 3 of the same act reads as follows:

“That the insurance company guilty of such delay in payment, unless upon just and reasonable grounds, shall pay to the assured, as a penalty, double the amount due under the terms of the policy or contract, during the period of delay, with attorney’s fees to he determined by the tribunal before whom the suit is instituted.”

Admitting the receipt by the company of due notice and proof of disability on June 1, 1925, and its failure to make the monthly payments under the policy, counsel for defendant say that it had “just and reasonable ground” for its refusal to make the payments in that plaintiff was demanding more than was due him.

The question whether the making of a demand by the assured for more than was' due would be just and reasonable ground under the act for the company to refuse to make the payments due under the policy need not be decided in this case, because the company’s refusal to make the payments was not based upon that ground.

It is true that plaintiff did demand that he be paid the annuity from the date he was totally disabled, whereas the lower court held that, under the terms of the policy construed in connection with the act above referred to, the annuity began thirty days after June 1, 1925, when the proof of disability was received by the company, but the record establishes beyond question that defendant’s ground for refusal to make payments was not that plaintiff demanded that the annuities begin on the date of his disability instead of thirty days after proof thereof was received by it but upon the ground that it was due plaintiff nothing until November 15, 1926.

Certain correspondence attached to and made part of plaintiff’s amended petition shows conclusively that defendant at no time made any serious complaint of the fact that plaintiff was demanding that payment of the annuity begin on April 18, 1925. the date on which he was disabled, instead of on July 1, 1925. The letters which are pertinent are as follows:

On November 19, 1925, Mr. Henderson, secretary of the defendant company, wrote the plaintiff, referring to this claim, and said, among other things:

“With reference to the annuity feature under this policy, wish to advise that this begins one year after the anniversary after the receipt of disability. This policy is for $5,000.00 and the annuity feature, should Mr. Brent be disabled one year from November 15, 1925, will be paid by the company at the rate of $50.00 per month.”

It will therefore be seen that nearly six months after defendant had received proof of plaintiff’s disability it had not only failed to pay the annuity benefits but claimed that none ¿were due until November, 1926.

Following this letter, we find in the record a carbon copy of a letter written to the company by attorneys for the plaintiff in which the attorneys say that the correspondence with reference to this claim had been turned over to them and they say:

“Mr. Brent has been totally disabled and under treatment for tuberculosis at the Veterans’ Hospital near Alexandria, Louisiana, since April 18, 1925.
“Under the terms of your policy, we understand that he is entitled to $50.00 per month from that date until the present time, and to $50.00 monthly thereafter.”

' Counsel then refer to the company’s letter to Brent of November 19, 1925, in which it was stated that nothing was due under the policy until one year after November 15, 1925, and express the opinion that the company is in error on that point and close their letter with the request that it forward to them or to Mr. Brent its check covering these monthly payments from April 18, 1925, to the present time and monthly thereafter.

This letter was evidently handed to the present counsel for the defendant company, for we find a letter written by counsel to the attorneys for plaintiff, dated November 24, 1925, in which counsel for the company say, among other things:

“Therefore, beginning one year after November 15, 1925, the insured will be entitled to annuity of $50.00 per month, but is not entitled to annuity from the date of his total disability, April 18, 1925.”

This suit was filed on January 15, 1926.

Defendant filed its answer on January 26, 1926, in which answer it is alleged:

“But it avers that the anniversary date of said policy referred to will be November ; 15, 1926, and until November 15, 1926, it owes to the said plaintiff nothing under said policy, and after that date is willing to pay him the said monthly annuity.”

And, in paragraph 5 of its answer, it is stated:

“* * * but it did refuse to pay the annuity before November 15, 1926.”

■ The lower court, on March 10, 1926, rendered judgment for plaintiff on the face of the pleadings, but on March 15, 1925, a new trial was. granted in order, as we understand, to allow both sides to file amended pleadings. Two days later defendant filed answer to plaintiff’s amended petition, reciting:

“* * * admits that the proof of disability was received by it on June 1st, 1925, and admits its liability and willingness to pay the said plaintiff the stipulated indemnity of $50.00 per. month beginning July 1st, 1925, and in furtherance thereof it hereby tenders to the said plaintiff tie sum of four hundred dollars ($400.00), being $50.00 per month from July 1st, 1925, until March 1st, 1926, and $80.62 premium paid by him and the sum of $10.00 covering costs paid by said plaintiff to the present time.”

Between the date on which defendant filed its original answer and that of the filing of the second answer, it seems that its counsel reached the conclusion that its former position was erroneous and that w,hereas it had claimed all along that nothing was due plaintiff under the policy until November 15, 1926, it had reached the conclusion that its liability began on July 1, 1925. '

But, having maintained through its officers and through counsel that it was due plaintiff nothing until November 15, 1926, and, for that reason, had refused to make payments to plaintiff, defendant is in no | position now to refuse to pay the penalties which the law inflicts upon it for its refusal.

Never until after this suit was filed and after judgment was rendered against it did defendant admit that it was due plaintiff anything until after November 15, 1926’, and never did it - make any serious complaint that plaintiff was demanding the annuity from April 18, 1925, whereas in fact it was due only from July 1st, 1925.

Defendant’s refusal to pay the annuity was due to what its counsel now admits was an erroneous construction of its policy and the law applicable thereto. The delays in payment of the annuities were therefore due to its fault and it follows necessarily that it must pay the penalties.

Defendant contends that the court err.ed in allowing attorney’s fees.

Section 3 of Act No. 310 of 1910, quoted above, provides that in case the insurer is guilty of delay in the payment of indemnity without just and reasonable cause it shall pay as penalty double the amount due under the policy,

“with attorney’s ■ fees to be determined by the tribunal before whom the suit is instituted.”

Defendant’s refusal to pay the indemnity due under the policy made it- necessary for plaintiff to bring suit, and under the letter of the law defendant must pay reasonable attorney’s fees.

But counsel say that in no event should the court have allowed the fee without proof of the value of the services rendered; and in view of the fact that judgment was rendered on the pleadings and that no proof wa,s demanded, the court erred in allowing a fee.

It is true that defendant denied in part plaintiff’s allegations that a fee was due, but the pleadings as a whole show that defendant is liable for the annuities as well as the penalties, which being true the court had the right, under the statute, to assess a fee for plaintiff’s attorneys.

Counsel’s point that the court could not assess a fee without proof of the value of the services rendered is not well taken.

There are circumstances under which the court would necessarily need some assistance in determining the amount due, but in a case like this where practically all the services were rendered under the eye of the court, it could fix a fee without hearing testimony. The court in this case had personal knowledge of what services had been rendered by counsel and even if testimony had been taken as to the value of the services the court would not have been bound by such testimony.

See cases cited in Volume 1, Louisiana Digest, pages 777 and 778, Section 60.

We think the fee of $150.00 allowed by the court adequate but not excessive.

Counsel for plaintiff moved in this court that the judgment be amended by increasing the amount of the fee allowed by the lower court, and also that it be amended so as to allow the annuities from April 18, 1925.

As already stated, we think the fee is adequate, and we state further that construing the policy in this case with Act No. 310 of 1910 we think the lower court correctly held that the indemnity began on July 1, 1925.

The judgment is affirmed.


text:
    No. 2349
    Second Circuit
    RECEIVERSHIP OF ZWOLLE LUMBER COMPANY
    Opposition of New Amsterdam Casualty Company
    (November 10, 1927. Opinion and Decree.)
    (Syllabus by the Court)

      1. Louisiana Digest — Receivers—Par. 24, 25.
    The premium on a policy of indemnity against liability under the Workmen’s Compensation Law issued to the receiver of a corporation engaged in operating as a “going concern’’ the business of the company under order of court is part of the court costs of the receivership and entitled to be ranked as such and to the privilege of such rank on the final account of the receiver.
    Civil Code, Art. 3191.
    Teutonia B. & T. Co. vs. Security Brewing Co., 137 La. 1046; 69 South. 833.
    Borne vs. Alexandria Hardwood Co., 140 La. 315, 72 South. 979.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine. Hon. Hal A. Burgess, Judge.
    This is the Receivership of Zwolle Lumber Company, Opposition of New Amsterdam Casualty Company.
    There was judgment for defendant and third opponent appealed.
    Judgment affirmed in part and reversed in part.
    Lemle, Moreno & Lemle, of New Orleans; Don E. Sorelle, of Many, attorneys for third opponent, appellant.

      R. A. Fraser, of Many, attorney for S. L. Carroll, as receiver, defendant, appellee.
    STATEMENT OF THE CASE
    This is an opposition hy the New Amsterdam Casualty Company to the final account of S. L. Carroll as Receiver of the Zwolle Lumber Company.
    It alleges that it issued to the receiver, who was engaged in operating the sawmill business of the Zwolle Lumber Company as a “going concern” under order of court, its policy of insurance No. 149,238 obligating it to pay all claims for compensation that might arise against the Receiver under the Workmen’s Compensation Law; that there was a balance of $377.96 owing to it on the premium for the policy; that it was entitled to be listed as a creditor of the Receivership for said amount on the final account of the Receiver; and that the nature of its claim entitled it to privilege and to be classed as a privilege claim on the final account.
    The Receiver, in answer to the opposition, admitted the correctness of opponent’s claim and alleged that it had been allowed and opponent put on his final account as an ordinary creditor for the amount claimed; but the Receiver denied that the nature of opponent’s claim entitled it to privilege or that opponent was entitled to have it put down as a privilege claim on the final account.
    On this issue the case was tried and the trial court adjudged:
    “That the claim of the New Amsterdam Casualty Co. be allowed as a debt of the Receivership, for the sum of three hundred seventy-seven and 96-100 dollars, but that the claim of privilege, preference and priority asserted upon said claim be refused, and the opposition to the Receiver’s account is dismissed.”
   REYNOLDS, J.

OPINION

Counsel for both the Receiver and Third Opponent agree that the sole question for determination by this court is one of law, namely: whether a debt for premium on a policy of indemnity against liability under the Workmen’s Compensation Law contracted by the Receiver while engaged in operating as a “going concern” under order of court the business of the Zwolle Lumber Company is entitled to be placed in the final account of the Receiver as a privilege claim.

This question was practically decided by our Supreme Court in the case of Teutonia Bank & Trust Co. vs. Security Brewing Company, 137 La. 1046, 69 South. 833, wherein the court, through Chief Justice Monroe as its organ, held:

“We are of opinion that the authority vested in, and the duty imposed on, the receivers, to operate the brewery as a going concern, carried with it the authority to incur such expenses as were necessary to the performance of that duty, and that the expenses so incurred .fall within the category and enjoy the privileges established in favor of law charges.”

And in the case of Borne vs. Alexandria Hardwood Company, 140 La. 315, 72 South. 979, it was held, Chief Justice O’Niell being the organ of the court, in a syllabus prepared by the court, that:

“According to the provisions of Section 5 of Act No. 159 of 1898, as amended by Act No. 212 of 1910, before it was again amended by Act No. 199 of 1914, the privilege, securing the payment of debts contracted by a receiver, for money borrowed on certificate of indebtedness, or for necessary supplies purchased by the receiver, and used in carrying on the business of the corporation as a going concern under orders of court, was superior in rank to the lien and privilege of the vendor of a part of the property of the corporation. Such debts contracted hy a receiver are in the category of law charges, and are taxed as costs of court.”

No question of the relative rank of third opponent’s claim and the claims secured by vendor’s lien and privilege is raised, for the reason that in the judgment appealed from the latter claims are ranked ahead of the claim of third opponent and no complaint is made by third opponent as to that part of the judgment; its only complaint being that its claim was entitled to be ranked as a privilege one and to be paid as other court costs.

Learned counsel for the Receiver says, in brief, that third opponent’s claim is for balance due on a premium on a policy of indemnity issued by third opponent to the Zwolle Lumber Company before the Receiver was appointed.

In this he is in error. Paragraph second of the petition of third opposition avers:

‘Your petitioner further represents that it issued compensation policy U. S. C. No. 149,238 in favor of S. L. Carroll, receiver appointed herein, which policy bound and obligated your petitioners to pay all claims of compensation which might arise against the said receiver from the operation of the business of the Zwolle Lumber Company.”

And the truth of these allegations is admitted by the Receiver in paragraph second of his answer to the petition.

Hence we are of opinion that the claim of third opponent constitutes a debt contracted by the Receiver after his appointment and in the conduct of the business of the Zwolle Lumber Company as a “going concern”.

Under the two authorities cited, it is therefore ordered, adjudged and decreed that so much of the judgment appealed from as decrees:

“that the claim of privilege, preference and priority asserted upon said claim be refused and the opposition to the receiver’s account be dismissed,”

be and the same is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed that third opponent’s claim for $377.96 be classed by the Receiver on his final account as court costs and be paid by him as such pari passu with other costs of the Receivership; and that, in all other respects, the judgment appealed from be affirmed. The costs of the third opposition, including this appeal, to be paid by the Receiver as court costs out of the funds of the Receivership.