text:
    No. 4111
    Second Circuit (Sécond Division)
    KNOX v. LOUISIANA LONG LEAF LBR. CO.
    (December 9, 1931. Opinion and Decree.)

      Fern M. Wood, of Leesville, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   TALIAFERRO, J.

This action is brought under the Employers’ Liability Act (Act No. 20 of 1914, as amended) by Maggie Knox, who claims to be the widow of one Peter Knox, who was accidentally killed in the course of his employment with the defendant company. It is alleged that the deceased was receiving a daily wage of $3, and compensation in the amount of 4614 per cent of said daily wage for the period of 300 weeks is claimed for the benefit of plaintiff and her minor child by a former marriage, it being contended that they were dependent upon the deceased for support and maintenance.

The. defendant company answering, admitted the accidental death of the said Knox and his employment, as alleged, but denies that the plaintiff was the legal wife or widow of the deceased, for the reason that she knowingly had a legal living husband from whom she had not been divorced at the time her marriage to the deceased, Knox, was consummated, and further that neither the plaintiff nor the said minor child were living with or dependent on deceased, at the time of his death.

Plaintiff’s suit was dismissed, and her demand rejected. She appeals.

On the question of whether or not the marriage of Maggie Knox to the deceased, Peter Knox, was in good faith, we find the record discloses the following:

That the plaintiff Maggie Knox married one Ed Rogers in the month of December, 1-921, and they separated in March, 1923, and she heard nothing further from him until 1924; and in the year 1927 he visited her at Peason, La., at which time she says he told her he had secured a divorce from her. However, during the year 1924 she began living with Peter Knox, without marriage, and continued so to live with him during the years 1924, 1925, 1926, 1927, and up until 1928, when they married. She continued to live with Peter Knox until about November 15, 1929. He' was accidentally killed on the 31st of December, 1929. Maggie Knox’s testimony shows that the only information she had that a divorce had been obtained from her by Ed Rogers in the state of Texas was that he told her and her father that he had been divorced from her. She made no investigation to have this information confirmed. The records of Jefferson county, Tex., disclose no suit by Ed Rogers against plaintiff for divorce. Our conclusion is that under the evidence a sufficient showing has not been made by the-plaintiff to convince us that she married Peter Knox in good faith in the year 1928.

Concerning the question of dependency of this plaintiff on the deceased at the time of his death, we will merely quote the evidence of this plaintiff found in the record, which we believe clearly shows that she was living in adultery with another, and was being supported by him, at the very time of the death of Peter Knox. Other testimony in the case amplifies that given by her, and confirms the position of the defense on the question of dependency. Her evidence is as follows:

“Q. And after he went to Fisher, he • moved you back to Montrose?
“A. No, sir.
“Q. After he left Montrose, who lived in the house with you?
“A. A man held the house for me, Charlie Tussen.
“Q. He lived with you?
“A. He had one room and I had one room.
“Q. How many rooms did the house have?
“A. Two, he stayed in the kitchen.
“Q. Did the house have two rooms and kitchen ?
“A. Two rooms with the • kitchen.
“Q. When you got back to Montrose Camp, did you and Tussen live in the same house until Peter got killed?
“A. The man held the house for me till Peter got killed.
“Q. He lived there after that time?
“A. No, sir.
“Q. Are you certain of that?
“A. Yes, sir.
“Q. Who lived with you?
“A. John Weston held the house for me then.
“Q. What do you mean — held the house?
“A. I couldn’t hold the house myself.
“Q. You and Tussen lived in the house from the time Peter went to Fisher until Peter got killed?
“A. Yes, sir.
“Q. Who paid the rent?
“A. Charlie.
“Q. Who paid the grocery bill?
“A. Peter give me money and I paid mine and he paid his.”

In Milton v. Long-Bell Lumber Co., 165 La. 336, 115 So. 582, 584, our Supreme Court has definitely settled the question of the wife recovering for compensation where the spouses are living separate and apart at the time of the death of the husband, and we quote as follows:

“We think the facts show that at the time of decedent’s death, and for three or four months preceding his death, the relator and the deceased lived separate and apart, by mutual consent; that relator maintained herself during that time, and, when her husband died, she cannot be held to have been dependent upon him for support, within the meaning of the Employers’ Liability Act.”

Therefore, even though the trial court erred in holding that the marriage of the plaintiff in this case to the deceased was not consummated in good faith, we find that she cannot recover for the reason that at the time of the deceased’s accidental death she was living separate and apart from him and in adultery with another party, and was not dependent upon deceased for support. See paragraph (K), subsection 2 of section 8 of the Compensation Law, as amended by Act No. 85 of 1926, which reads as follows:

“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.”

We find in the record a written opinion of the trial court disposing of both points raised by the pleadings, and which, we think, correctly rejects plaintiff’s suit for the cogent reasons therein assigned. This opinion we adopt. It is in part as follows:

“In 1921 the plaintiff Maggie married to a negro by the name of Ed Rogers and from this marriage there was born the child named Edward Rogers, which child the plaintiff has the custody and is claiming compensation for in this suit. Some time about 1923 the plaintiff Maggie and her husband separated and her husband Ed Rogers went to Texas and thereafter she took up and lived with Peter Knox. On September 3rd, 1928 she married Peter Knox and lived with him until about two months before his death. Maggie testified that m 1926 or 1927 or thereabout her former husband came to Peason to see her while she was living there and stated that he had divorced her in Texas, in Jefferson, (Co.) and that Rogers after telling her that he left again. The father of Maggie also says that Rogers came to De Ridder and told him that he had been divorced from Maggie. So Maggie contends that she was in good faith and did not marry until she believed from what her husband told her and her father that they were divorced. I was not impressed with the account given by Maggie and her father that Ed Rogers came back from Texas to tell them he had been granted a divorce, in fact I do not believe that Ed Rogers ever came back. * * * The plaintiff in this case had been married and was married at the time she married Peter Knox unless a divorce had been rendered which was not shown by the evidence; however if she married in good faith believing that a divorce had been granted she would be entitled to recover in this case, but the Court is of the opinion that the plaintiff did not marry Peter Knox in good faith believing she was divorced as she made certain statements to a witness for the defendant about a divorce iñ Jefferson, Texas. ... '
“The plaintiff went .to see Peter Knox a month or two before his death at Fisher and she stated that she went back to Mont-rose to look after their household goods as there was no house to live in at Fisher. The evidence shows that at the time that Peter Knox was killed she was living in the house with one Charlie Tussen at Montrose and that Tussen was paying the grocery bill, and from this evidence I am of the opinion she was living in adultery with Tussen .and was not being supported nor was her child by Knox at the time of his death. From all of the evidence in the case and the law applied thereto, it is the opinion of the Court that the demands of the plaintiff should be rejected.”


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 4116
    Second Circuit (Second Division)
    SWEET v. LOUISIANA LONG LEAF LBR. CO.
    (December 9, 1931. Opinion and Decree.)

      Fern M. Wood, of Leesville, attorney for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   DREW, J.

This is a suit under the Workmen’s Compensation Act (Act No. 20 of 1914, as amended). Plaintiff alleged that he was an employee of defendant company, working at one of its dry sheds in March, 1930; that defendant is engaged in the sawmill business, and owns and operates in connection therewith dry kilns and dry sheds for the purpose of drying lumber; that, while engaged in the work he was employed to do, a piece of lumber he was handling’ struck him in the right eye, injuring the said right eye so as to result in the loss of the vision of the eye. Plaintiff further alleged that at the time he was earning $2.50 per day, and, at the time he was injured, was performing services arising out of and incidental to his employment in the course of his employer’s trade, business, and occupation. He alleged the loss of his eye to be permanent and total, and prays for judgment for 65 per cent of his daily wages for a period of one hundred weeks, beginning. March 3, 1930, the day the injury occurred.

Defendant in answer admits the employment of plaintiff, and that at the time alleged he was in the employ of defendant performing services arising out of said employment; denies that he was injured as alleged, or. that, he received any accidental injury while in its employ; admits that he was receiving the wage per day, as alleged; and, further answering, it avers that the loss of vision or impairment to plaintiff’s eye is in no manner due to an accidental injury to said eye as the result of or growing out of plaintiff’s employment with defendant, but is due entirely to diseased condition or conditions caused by events in no manner connected with his employment.

The case was tried on these issues in the lower court and resulted in judgment for plaintiff, as prayed for from which judgment defendant has appealed.

In order for plaintiff to recover, it is necessary that he-prove, first, an accidental injury; and, second, that the injury received caused the loss of vision of his right eye. We think he has failed in both instances, and certainly in the second.

There are only five witnesses, in the case: The plaintiff, Dr. Harvey Dillon, Dr. Connally, Dr. Gandy, and B. H. Wynn, the foreman under whom plaintiff was working. Plaintiff alleged that he -was struck in the eye by a piece of lumber he was handling, and, when testifying, was asked the following questions by- his attorney:

“Q. What were you doing when you sustained 'injury to your eye? * * * Go ahead and state to the .Court what happened, just tell the Court how you got hurt.
“A. I worked in the dry shed, I do dry shed work, and a cinder or splinter got in my eye and caused me to go to the doctor for it; and that inflamed it. For several days I could not get the splinter out.
“Q. Monroe, I ask you do you say that on the 3d day of March, 1930, while working with defendant Company, a piece of lumber struck you in the eye? Is, that right?
“A. Yes, sir.”

Later on in his testimony he stated that he was struck in the eye by a 1x3 that broke, and in rebuttal he said that, when he was struck in the eye, it knocked him out, and that he did not know anything for a while. It can be readily seen that, before being prompted by his attorney, his testimony was that he got a cinder or splinter in his eye, and' later says he was struck by a 1x3 in the eye, and, finally, when placed on the stand in rebuttal, he says that the lick knocked him out and he knew nothing for a while.

When plaintiff reported to Dr. Connally, which he claims was the same morning he received the injury, he told Dr. Connally that he had some trash in his eye. He offered no other witnesses to the accident, and did not report it at any time to his foreman, Mr. B. H. Wynn, who was on the job all the time. The following question was asked Mr. Wynn:

“Q. State to the court if this plaintiff, Monroe Sweet, ever came to you during March and told you about sustaining an injury while working for you?
"A. Why he never did claim to me of being hurt on the work, and fact-of-business, he never claimed to me of being hurt at all, getting hurt. He claimed of having trouble with his eyé, but did not give the cause for it, and the first I knew he was even claiming to be hurt, at all when I did not know anything about it, his claiming to be hurt on the works, until the time we were summoned over at the office after he consulted a lawyer.’’

Mr. Wynn further testified that he saw plaintiff every day, and that he was the man for plaintiff to have reported the accident to, and that, if he had received a lick in the eye as he claimed, he (Wynn) would have known it, as he was around the kiln all day every day; that plaintiff continued to work until June, 1930, when he was. arrested and put in jail.

Plaintiff testified that he went to Dr. Connally the same morning he received the injury. Dr. Connally testified that plaintiff said that he thought he had some trash in his eye; that he examined the eye very closely, and found nothing in the eye, and, after further examination, concluded the eye was out. He says there was no inflammation to speak of. Plaintiff did not tell Dr. Connally that he had been struck in the eye, and, from the doctor’s testimony, there was nothing to indicate that he had, as there was no injury to the eyeball and no bruise of any kind. Dr. Connally took plaintiff to see Dr. Harvey Dillon the next day and, although Dr. Dillon is plaintiff’s witness, he corroborates Dr. Connally in every respect — no bruise about the eye and no outward injury to the eye. If plaintiff had received thg blow as he described it, it is certain that the eye would have been inflamed, bruised, and black when he called on Dr. Connally, and the following day when he called on Dr. Dillon. Both Dr. Connally and Dr. Dillon are positive that paintiff was blind in the right eye when he came to see them.

Plaintiff, we think, has failed to show an accident while in the employ of defendant that caused injury to the eye, and this' alone would bar him from recovery. However, the testimony of Dr. Dillon and Dr. Connally, who examined him immediately after the time he claims he was injured, is positive that the loss of vision was caused by disease and not by trauma.

Dr. Gandy, who examined plaintiff just before the trial, is also positive that the loss of vision was caused from disease and Apt from trauma. There is no testimony to offset that of the three doctors, except the plaintiff himself, and all three doctors testified that it is not unusual for a laborer, such as plaintiff, to be blind in one eye and not know it and .to express great surprise upon being informed of his condition.

Plaintiff lays great stress upon the fact that a Wassermann test made by Dr. Gandy of plaintiff showed negative. However, without contradiction, all three doctors testified that such a test is not conclusive of the subject; that, when the Wassermann shows, positive, they accept it as true, but, when it shows negative, they do not accept it, as in many cases the test shows negative when the person is afflicted with the disease of syphilis. All three doctors are of the opinion that the loss of the eye was caused by disease, and there is no testimony to rebut it. We therefore have to accept it as the cause of the loss of vision. Two of the doctors are specialists and the other a general practitioner. Weller et al. v. Turnerized Roofing Co. et al., 14 La. App. 150, 129 So. 443; Williams v. Interndtional Paper Company, 12 La. App. 139, 125 So. 596; Brent v. Union Indemnity Company, 17 La. App. 689, 135 So. 735.

The judgment of the lower court in favor of plaintiff is erroneous, and will have to be reversed. It is therefore ordered, adjudged and decreed that the judgment of tbe lower court be reversed, and the de•mands of plaintiff be rejected, at his cost in both -courts.


text:
    No. 4130
    Second Circuit
    BLANCHARD v. HARBESON ET AL.
    (December 9, 1931. Opinion and Decree.)
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for plaintiff, appellee.
    Joseph S. Guerriero, of Monroe, attorney for defendants, appellants.
   DREW, J.

Plaintiff sued to recover a solidary judgment against defendants. The basis of the suit is five promissory notes made by defendants payable to themselves and by them endorsed. The notes represent the amount due for the rent of a building leased by plaintiff to defendants.

Defendants filed exceptions of vagueness. and no cause of action, which exceptions were by agreement referred to the“ merits. Defendants, in answer admit making the notes and allege that the rent contract was abrogated and cancelled by oral agreement between plaintiff and defendants, and that said notes were extinguished and supposed to have been destroyed.

Plaintiff filed a motion to have judgment on the petition and answer, which motion was overruled by the lower court arid the case tried on the merits, resulting in judgment for plaintiff, as prayed for. Prom this judgment, defendants have appealed. Plaintiff answered the appeal praying that the motion for a judgment on the petition and answer be sustained. Under our finding' in the case, we prefer to pass on the merits.

There has been no appearance in this court by appellants and we therefore consider the appeal as abandoned. However, we have carefully read the record and find no error in the judgment of the lower court. It is. purely a question of fact and it is clear that the plaintiff proved its case with a preponderance of evidence.

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


author: TALIAFERRO, J.

text:
    No. 4106
    Second Circuit (Second Division)
    ADGER v. VOLOTO
    (December 9, 1931. Opinion and Decree.)
    Foster, Hall, Barrett & Smith, of Shreveport, attorneys for plaintiff, appellant.
    Blanchard & Pyburn, of Shreveport, attorneys for defendant, appellee.
   TALIAFERRO, J.

Plaintiff sues to recover damages of defendant for injuries to himself and his Ford coupe caused by a collision with defendant’s Packard automobile in or near the intersection of Albany avenue with Kings highway in the city of Shreveport, at the hour of 2 o’clock, p. m., October 20, 1930.

It is alleged by plaintiff that, accompanied by his wife, he drove his automobile along Albany avenue to its intersection with Kings highway, passed through said intersection and drove up said highway on east side towards Shreveport thirty or forty feet, when run into by defendant’s car.

It is further alleged that defendant was driving his car left of the center of the highway, the left wheels being off of the paved (central) portion of it; that when thirty or forty feet from said intersection ( plaintiff observed that defendant was making no effort to pull over on his (right) side of the highway and “petitioner turned his automobile to his right and had proceeded about .20 feet off of said street when his automobile was struck violently on the left side, between the center of the automobile and the left rear wheel,” and that he was knocked unconscious and suffered many wounds on and about his face and mouth, described in detail in the petition.

It is specifically alleged that the direct and proximate cause of said collision, with resultant injury and damage to plaintiff, was due to the negligent, careless, reckless, wrongful and illegal operation by defendant of his said automobile.

Defendant admits the collision of his and plaintiff’s cars on the date named, but denies that it happened at the spot and in the manner alleged by plaintiff. He denies that he was on his left side of the highway when the accident occurred and denies that he was traveling at the rate of 35 miles per hour. He avers that he was driving down Kings highway, on his right-hand side, at the rate of 20 miles per hour at time of the accident and that plaintiff suddenly turned into the highway from Albany street, attempting to make a left turn, immediately in front of his (defendant’s) moving car, without first ascertaining if he could safely do so, and that his carelessness, negligence and inattention in thus acting was the proximate cause of the collision.

In the alternative, defendant pleads contributory negligence in bar of plaintiff’s right to recover, and reconvened for an amount alleged to have been expended for repairs to his car made necessary as a result of the accident.

The district judge rejected the demands of both parties and dismissed plaintiff’s suit. He alone has appealed.

Kings highway extends southerly out of the lower section of the city of Shreveport. It carries heavy traffic on account of it being a part of the Jefferson highway which connects Shreveport .with the' towns and cities of central and south Louisiana. At the point where Albany avenue ' intersects this highway and for some distance north it describes a broad curve. Albany street or avenue does not extend across the highway. Adjacent to the highway at this point, on east side, there is an intervening grassy space, which recedes into a bayou.

Plaintiff’s version of the facts transpiring immediately prior to and at time of the accident is as follows: That he was driving his car at 15 miles per hour in Albany street and when within 200 feet of the intersection with Kings highway he saw defendant’s car 500 feet away coming down the curve in the highway; that when he reached the intersection defendant’s car was 200 feet north of him; that he passed through the intersection, without stopping, made a left turn up the east (his right) side of the highway and observed defendant approaching him at the rate of 40 miles per hour, also on east side of the highway. We quote the following excerpts from plaintiff’s testimony, as they clearly reflect his theory of the case and reveal definitely the ground upon which he stands and hopes to succeed, viz.:

“I remarked to my wife I better get off of the road to avoid an accident, which I did. I cut my car to the right, going out on the grass that was almost even with the road, then I remarked also, as he cut off too, that I must go into the bayou, and a few seconds later he hit me.”
“Q. I will ask you, Mr. Adger, if it is not a fact that this collision happened just after you entered Kings highway off of Albany street?
“A. The collision happened after I made a complete turn towards Shreveport and made thirty fqet, then had turned off of the road and gotten ten feet off of the road on the grass, when I was hit by this Packard car.
“Q. Didn’t that Packard car hit you just as you drove into King’s highway off of Albany street?
"A. No, sir; it hit me after traveling towards Shreveport, having turned across the street and gotten behind a telephone pole.”

Plaintiff testified that the paved portion of the highway was forty feet wide where the accident happened.

Mrs. Adger’s testimony in the main corroborates that of her husband. She states that plaintiff remarked to her twice regarding the manner of defendant’s driving and the location of his car, stating that he would have to get in the bayou to prevent being run into; that the impact of the collision caused the door of the Ford coupe to open and her husband fell out with one foot caught in the car, his body dragging; that she got out of the car and extricated his foot from its fastening, and then the car, having been knocked around, “went,, into the bayou” backwards; that plaintiff was removed to the sanitarium for treatment, and remained there for three days. She is positive plaintiff’s car was off of the highway — ten feet over on the grass— ■when struck by defendant’s car, and going towards the bayou. She did not see defendant’s car until her husband called her attention to it “just after he turned into Kings highway,” and that they had gone about thirty feet up the highway when plaintiff again called her attention to defendant’s car approaching them, and he then turned his car to his right, going towards the bayou. She is also positive both cars were off of the road when contact was had.

Mrs. R. C. Pulton, whq lives in the block west of Albany street, as a witness for plaintiff, stated that she was on her front porch when the cars collided and the noise of the impact attracted her attention in that direction; that both cars were moving when she first observed them. The following testimony given by her we think very significant when considered in connection with the question of the location of the cars at moment of collision:

. “Q. Did you see the Packard car, that was the car of the defendant, just at the instant of the impact?
“A. Ye?, sir; I did.
“Q. What happened tq that car after it hit Mr. Adger’s car?
“A. It drove on down the road.
“Q. How far?
“A. Drove clear across the street, Albany street, because when he stopped he was almost opposite the house on the corner.”

She was positive that no car was closely following that of defendant when the collision occurred.

It is well here to state that there is really no dispute as to to the spot where defendant’s car stopped after the accident. Defendant kept it under control, though the bumper was damaged and pressed against a casing, and stopped it on the grass on the east side of Kings highway a short distance from the intersection.

Defendant testified that he lived on Kings highway; that he farms, and at time of accident operated a bus for the Caddo parish school board, and had been doing so for eleven years, and had never experienced an automobile accident or collision prior to that with plaintiff; that at time of the accident he was returning home from a sanitarium in the city of Shreveport, where one of his boys was a patient; that when in the curve of the highway about Dr. Stamper’s residence he was stopped by an acquaintance named B. C. Gibson and they discussed some business matter for ten or fifteen minutes, and then proceeded down the highway, on his right-hand side, towards Albany street; that he saw plaintiff coming out of this street at a rapid rate of speed and slowed his car down, but that plaintiff undertook to make a left turn at the intersection, headed towards him; and the collision happened; that after the collision he “swung his car around a little and threw it on the grass and killed the motor”; that he then placed plaintiff in his (defendant’s) own car with the intention of carrying him to a hospital but finding the injury to the car such as. to interfere with its free running he transferred plaintiff to the car of a friend who was passing, who drove him to a sanitarium. He further testified that the Ford coupe was turned around as a result of the collision and backed into the bayou on east side of the highway; that plaintiff fell out of his car on the highway and that he paid out $28 to have his own car repaired.

B. C. Gibson testified as a witness for defendant. He lives in the city of Alexandria, La., and had known defendant for six or seven years. He is a contractor, engaged in the erection of buildings, and at time of accident he was some fifty or seventy-five feet above defendant, on the west (his right) side of Kings highway, en route home in his own car; that he stopped defendant, on the highway a few minutes prior to and about a block from the scene of the accident, and they discussed some business matter; that when the talk was over defendant preceded him down the highway towards Albany street; that his attention was attracted first towards the ’place of- accident by the sound of a car’s horn and he saw defendant’s car hit plaintiff’s and “knock it around,” and witness then stopped his car. He is positive defendant’s car was in front of his own, traveling 18 or 20 miles per hour, on the right-hand side of the highway. He saw plaintiff and wife get out of their car. He thought they jumped out of it as it rolled towards the bayou, but was not certain on this point.

Other witnesses testified in the case but their evidence has ho material bearing upon the question of negligence causing the accident.

As obviously appears from the foregoing analysis of the testimony it is 'hopelessly irreconcilable. If plaintiff’s evidence is correct, the cause of the collision lies not only in defendant being on the wrong side of the road but in pursuing plaintiff’s car with his own after plaintiff had quit the road and taken to the grassy plot between the highway and the bayou. We are unable to bring ourselves to the conclusion that the accident happened in this manner. Many accidents happen because of people violating the rule of the road requiring them to drive on their own right-hand side, but this is the first case coming to our knowledge wherein it is contended that one automobile, while in a position of safety, was driven entirely off of the road, seemingly for no other purpose than of colliding with another one.

Mrs. Fulton’s evidence,. while a witness for plaintiff, really corroborates the evidence of defendant and his witness Gibson, with respect to the relative position of the cars at the moment of collision. She states that defendant’s car, immediately after the accident,- crossed Albany street and stopped on the opposite side. Albany street ends with its juncture with Kings highway. Therefore, if defendant’s car crossed this street and stopped on the opposite side of the highway it almost certainly follows that it must have been above the street and on the right-hand side of the highway when the cars collided. The Packard car was much heavier than the Ford coupe of defendant and this contrast in weight accounts for the movement of the cars after accident. Defendant’s was not forced out of its line of travel tq any great extent, while that of„pIaintiff was' knocked around and moved backwards towards the bayou.

If plaintiff is in error as to how the accident happened, and we think he is, it logically follows that defendant’s version of how it occurred is correct. Defendant was traveling á street or highway much more used by traffic than the one plaintiff was on. Plaintiff admits that he did not stop his car at the intersection. It was his duty to do this and wait until it was clearly safe for him to proceed. The fact that the collision occurred in the intersection is convincing proof that defendant’s car was approaching it within such distance as to have impressed plaintiff with the necessity of exercising the utmost care and caution to obviate a collision. As defendant was traveling on a street much more used for traffic than was the side street plaintiff was on, he had the right of way at the intersection, when it was obvious to plaintiff that a collision was probable should he undertake to cross to the opposite side of the highway in front of defendant’s moving car.

Defendant’s reconventional .demand was rejected. He has not asked for any relief from the judgment against him.

For the reasons herein assigned it is ordered that the judgment appealed from be affirmed.


text:
    No. 4128
    Second Circuit (Second Division)
    WILLIAMS v. WARMSLEY
    (December 9, 1931. Opinion and Decree.)
    Smith & Greene, of Shreveport, attorneys for plaintiff, appellant.
    George Thurber and Mabry & Carstarphen, of Shreveport, attorneys for defendant, appellee.
   TALIAFERRO, J.

Plaintiff alleges that while in the employ of defendant, and working with one Arthur Lee, on or about the 14th day of February, 1930, loading cross-ties on a truck, he sustained injury producing a condition of total permanent disability to do work of any reasonable character. He sues for compensation and for an amount to cover medical and surgical expenses. .

Defendant denies that plaintiff was injured while working for him or in his employ; denies that he was working for him or in his employ at time of his alleged injury; and denies that plaintiff was working for anyone employed by defendant at said time or on said date.

Plaintiff’s suit was dismissed and his demand rejected by the district court. He has appealed.

Two questions are presented by the issues. in the case, viz.: The nature and extent of plaintiff’s injuries and whether or not he was in the employ of or was working for defendant or for anyone in his employ when injured.

The decision reached by us makes it un-. necessary to discuss or consider the first question. It is our opinion the evidence; in the case fails to establish the affirmative of the .second question,- and we shall' undertake to give the reasons which impetus to this conclusion.

Plaintiff testified that he was working" with one Arthur Lee who was employed by defendant to haul cross-ties from his mill near Marshall, Texas, to the railroad yard in the city of Shreveport, La., on or about the 14th day of February, 1930, when injured; that he had worked for defendant off and on for two" years; that after being injured (late in the afternoon) he' rode Lee’s truck to his home in the city of Shreveport, and thereafter was unable to resume work. He says he notified defendant of his injury on Saturday, the day after he was injured, and that defendant informed him he was working for Arthur Lee, not him; that Arthur Lee would draw plaintiff’s wages in a check with his own and deliver it to him while they were working together; that he did not consult a physician about his injuries until two months after being hurt.

At date of trial plaintiff was serving a sentence in jail for violating the prohibition law.

Ike Toombs, a witness for plaintiff, testified that in early part of February, 1930, he saw plaintiff and Arthur Lee working together hauling ties for defendant and that after plaintiff was injured he took his place with Lee and worked in hauling ties from defendant’s mill near Marshall. He states thát the first time he saw plaintiff subsequent to being injured was two weeks thereafter at defendant’s office, where plaintiff had come to be paid off. On cross-examination he stated that he did not really know the date of this incident but thought it was in the month of March.

Perry Rendall, a witness for plaintiff, testified that he was at plaintiff’s home on or about February 14th when he arrived on Lee’s truck, complaining of being injured.

A. L. Roberts, who was working for defendant on February 14, 1930, was unable to state definitely" if he noticed plaintiff about defendant’s mill or hauling ties from the mill on that date. The uncertain nature of his evidence may be seen from the following:

“Q. Did you see Napoleon Williams on or about that date?
“A. Well, I don’t know exactly whether I did or not. Don’t know whether I seen him that day or not.. I think I did. Don’t remember whether or not I seen him at all that day.”

E. F. -Coleman, also engaged in hauling ties for defendant during the months of January and February, 1930, could not recall observing plaintiff working at hauling ties during the month of February, but was certain he saw him working with another man during January.

Walter Delcord, a witness for plaintiff, testified that he saw plaintiff working around defendant’s mill in early .part of February, and afterwards saw him working, loading ties. He states, however, that he quit hauling from defendant’s mill about the 10th of February.

The evidence of this witness is contradicted by practically all of the other witnesses in the case. No one, not even plaintiff, claims that he worked at defendant’s mill at any time; and no other witness has testified that plaintiff was loading ties alone.

Arthur Lee testified that plaintiff was working for him after Christmas, 1929, but was uncertain whether he was so engaged in the month of February following; that he did not think he was working for defendant in February as the trucks had been laid off on account of bad weather and shortage of ties; that plaintiff quit working for him for three or four days, during which time he worked for a Mr. Mills, also engaged in the tie business,, after which time he resumed work with this witness, and after three days again quit work, assigning sickness as his reason for so doing; that at this time plaintiff complained of his side and back hurting him. This witness is positive plaintiff was not injured at all while assisting him in hauling ties from defendant’s mill and is equally positive a tie did fall on him at Blanchard, La., prior to the time he ceased to work for him; that he was present and saw the tie fall on plaintiff, but the date of this happening is not fixed; that plaintiff rode to his home in the truck of this witness after the accident, and worked with him no more thereafter.

E. G-. Rowland, a witness for defendant, testified that he worked for a Mr. Mills during the months of January, February and March, ’ 1930, as tie inspector; that Arthur Lee hauled ties for Mr. Mills on February 8th, 10th, 11th, 13th, 14th, 15th and 22nd, from near Blanchard, La. This witness kept a record of the ties he inspected for each hauler and made reports daily to his employer upon which payments for labor and hauling were made. His testimony was given' from a record kept by him during his work of inspection. He also stated that he saw plaintiff often during the time Lee was hauling ties for Mr. Mills in February.

■ John R. Morgan, bookkeeper and assistant manager of defendant, testified that Arthur Lee worked for defendant the first eighteen days of January, but did not work for him at all during February; that he paid off for defendant with checks and that neither Lee nor plaintiff were on the payroll for February; that his records show the name of every person employed by defendant.

Defendant is positive that neither Arthur Lee nor plaintiff worked for him during the month of February, 1930.

Louis Wilson, a witness for defendant, testified that in the month. of June, 1930, he talked with plaintiff on Texas avenue in the city of Shreveport and that plaintiff told him he got hurt while working for Mr. Mills.

A witness by the name of Compract stated that he worked at defendant’s mill during the month of February, 1930, and no one was injured about it in that month.

It appears quite clear to us that plaintiff probably did not know for whom he was working when assisting Arthur Lee to haul cross-ties. He says he was working for Lee. Lee owned or controlled the truck while plaintiff performed the heavy work of carrying the ties to and loading them on the truck, with some assistance from Lee. Lee Collected his own wages and those due plaintiff, both being included in Lee’s check. Lee does not think he worked any for defendant during the month of February, 1930, and this evidence, coupled with that qf Mr. Rowland and of Mr. Morgan, makes it quite certain that neither Lee nor plaintiff did work for defendant during this month.

If plaintiff’s injuries are traceable to an accident occurring while he was engaged in hauling and handling cross-ties for defendant he has failed to establish such fact. He plants himself upon the allegation that the injury happened on or about February 14th. This is impossible in view of the positive record evidence adduced on behalf of defendant, for certainly Arthur Lee, with whom plaintiff labored, was hauling ties for Mr. Miller on and about this date.

It does appear that a tie fell on plaintiff while working with Lee near Blanchard, but it is not shown for whom they were working at the time,,nor is the date of this incident proven.

The evidence adduced on part of plaintiff is indefinite, carries a lack of positiveness, and most of the witnesses acknowledge uncertainty concerning material facts testified about. This may be accounted for from the fact that one year intervened be-' tween the time the facts transpired, about which these witnesses testified, and trial of the case. Without some record or memorandum few people could recall with absolute certainty events happening a year ago unless there was some special reason or cause for them doing so.

The reasons assigned by the trial' court for rejecting plaintiff’s demand are not in the record. We think he correctly disposed of the case.

The judgment appealed from is affirmed.


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    No. 4214
    Second Circuit (Second Division)
    CARTER ET UX. v. CARRAWAY
    (December 9, 1931. Opinion and Decree.)

      Irion & Switzer, of Shreveport, attorneys for plaintiffs, appellants.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

Plaintiffs instituted this suit for damages alleged to have been sustained by them when their minor son was injured as the result of being struck by an automobile driven by the defendant, and, as parents and natural tutors, for damages for injuries sustained by their minor child. The amount sued fo.r is $189 for themselves' for medical expenses, etc., and $10,000 on behalf of their minor child.

They alleged that at about .6 o’clock in' the afternoon on July 22, 1930, their minor child, Hightower Carter, was crossing North Market street in the city of Shreveport at about the "middle of the block; that defendant, driving his automobile at" a rapid rate of speed, bore down upon him, striking and. injuring him. They alleged! with specifieness the injuries sustained by their minor son and the acts of negligence of defendant alleged are as follows:

“That the movement of the said automobile was so sudden and unexpected that the said Hightower, although exercising’ due diligence, care and skill, was unable to avoid or prevent the accident;
“That the accident was due solely to the fault, negligence and lack of skill of defendant;
“That the defendant was operating bis car in a careless, unsafe, negligent and reckless manner, and was not keeping a proper lookout, all in violation of the laws, of the State of Louisiana and the ordinances of the city of Shreveport; and
“That defendant’s excessive speed and other acts set forth above, were the proximate cause of the accident and that High-tower Carter contributed in no way to same.”

They further alleged in the alternative, should the court find Hightower Carter guilty of contributory negligence, "that defendant had thé last clear chance to avoid the accident. In an amended petition they alleged that Hightower Carter was crossing the street on foot from the west to the east side, and that he had almost crossed the street when struck by defendant’s automobile.

Defendant in answer denied the principal allegations of plaintiff’s petition. Further answering, he alleged that he was driving along Market street in a lawful manner, at a moderate rate of speed on the proper side of the road, and keeping a lookout ahead. That the boy, Hightower Carter, suddenly darted out from the west side of the street from behind an oncoming car and ran directly in front of his car,, without any warning or notice to enable him to stop his automobile. That he had no means of knowing that the boy was going to dash across the street in front of his car in the middle of the block. He denied any negligence on his part and alleged that if the boy was injured to any extent, which he denied, it was due to the negligence of the boy. He pleaded contributory negligence on the part of Hightower Carter and on the part of plaintiffs for sending him across the street in the middle of the block, without keeping a proper watch over him. He denied he had the last clear chance to avoid the accident.

The lower court rendered judgment for. defendant and rejected the demands of plaintiffs. From this judgment plaintiffs have appealed.

A careful reading of the pleadings reveals the fact that the negligence charged to defendant is excessive speeding and failing to keep a proper lookout. The defense is that the accident was unavoidable and, in the alternative, contributory negligence on the part of Hightower Carter and his parents.

The alleged negligence of failing to keep a proper lookout falls by the very testimony of plaintiffs’ witnesses who testified that defendant’s car skidded from a point south of Simms street to the scene of the. accident, which is more than one hundred feet, and also by the testimony of one other of plaintiffs’ witnesses, who says he measured the skid marks and they were shown on thg pavement to be about 45 feet. If we should accept this testimony, we would be convinced that defendant saw the boy as soon as he entered the road and as soon as it was possible for him to have seen him. On the other hand, defendant testified that he was keeping a proper lookout; therefore, the charge of negligence by failing to keep a proper lookout passes from the case.

The remaining charge is that defendant was traveling at an excessive rate of speed. The ordinances of the city of Shreveport fixing the speed limit on North Market street was not offered in evidence, and we do not know what it is. The only testimony offered by plaintiffs as to the speed of defendant’s car is that of the mother of the boy, Mrs. Carter, and a witness named Bradley. Mrs. Carter testified that defendant was coming very fast and did not attempt to fix in miles per hour the speed of the car. The witness Bradley testified that defendant was traveling at about 35 or 40 miles per hour. Defendant testified that he was traveling about 15 miles per hour. Mrs. Carter testified that she saw the car before the accident, but we think it improbable, for when she came out after the accident had happened she told defendant that she was in the house at work and heard the noise of the brakes and knew somebody was about to have a wreck. When she got to the door, the first thing she saw was the loaf of bread for which she had sent the boy. However, if she did see the car before the accident, her testimony alone is not sufficient to hold that defendant was speeding.

The testimony qf the witness Bradley is so conflicting and so clearly impeached in so many instances that the court would not be justified in rendering judgment thereon. He fixes the time of the accident in the morning, when in fact it happened near 6 o’clock in the afternoon. He places himself on the gallery of a house on another street, some distance away, and it is clearly shown that at the time of the accident, due to a building that was standing and has since been demolished, it would have been impossible for him to see the car before the accident. He also places himself at the scene of the accident immediately afterwards, yet no other witness saw him there. He saw Mrs. Carter pick up her boy and carry him in the house, when in fact the child walked into the house unassisted. Mr. Bradley is possibly confusing this accident with some other accident he has witnessed, but certainly he did not see this one.

The preponderance of testimony is that defendant’s car skidded about six or seven feet, which corroborates defendant’s testimony that he was traveling about 15 miles per hour. He is further corroborated by the fact that he did not run over the child, as the bumper of the car struck the boy and the car stopped before passing over him. After the accident, the child was still in front of the car. We are convinced that the testimony fails to prove the charge of speeding.

The defendant, a merchant of Ida, Louisiana, a village located in the northern part of Caddo parish, was returning to his home, and, on reaching that part of the city of Shreveport, which was formerly the village of Agurs, the accident occurred. The street or road at that point and continuing on north, is composed of a slab of concrete or asphalt in the center, about wide enough for two cars to pass, and the remainder of the street or road on each side is of dirt and gravel. Necessarily, when one is traveling on the hard surfaced part of the road, as was defendant, going north, the left wheel of the car would be near the center of the road. When defendant reached about the middle of the six hundred block in the former village of Agurs, plaintiffs’ son, seven years and nine months of age, suddenly darted out into the road, running across from the west side to his home on the east side. Defendant, on seeing the child, put on his brakes and cut his car as far as possible to the right-hand side, in an attempt to miss him. The child was struck near the right-hand side of the road and knocked down.

The accident, we think, was unavoidable. Defendant was not guilty of any negligence and acted upon seeing the child run in front of his car, as any prudent man would have done under the circumstances.

Huddy, Cyclopedia of Automobile Law (9th Ed.) vols. 5, 6, sec. 73, p. 113; Huddy, Cyclopedia of Automobile Law (9th Ed.) vols. 5, 6, sec. 43, p. 64; Bass v. Means, 12 La. App. 260, 124 So. 553; Roder v. Legendre et al., 147 La. 295, 84 So. 787; Neville v. Postal Telegraph Cable Co., 13 La. App. 76, 126 So. 720.

. It is urged by plaintiff that a Ford car driven 15 miles per hour can be stopped in two feet. That may be true, but not when the driver was not expecting to have to stop; and the fact that defendant stopped within six or seven feet, we think, shows that he was maintaining a proper lookout and stopped as soon as possible under the circumstances.

It is also urged that defendant had the last clear chance to avoid the accident and that he should have gone to the left instead of to the right, thereby missing the child. Defendant contends he did not turn to the left for the reason that another car was coming and was ready to pass him at the time. That is a very good reason, but if no car was coming towards him from the north, we think he did and acted as any reasonable, prudent man would have done in the emergency and under the circumstances.

“There is no opportunity for the application of the last clear chance doctrine in a case where the injured person passed in front of a machine so suddenly that the collision could not have been avoided had the driver exercised reasonable care.” Huddy, Cyclopedia of Automobile Law (9th Ed.) vols. 5, 6, sec. 125, p. 210, citing the following cases: Thomas v. Natural Gas Producing Co., 9 La. App. 680, 121 So. 649; Roder v. Legendre, supra; Buckley v. Featherstone Garage, Inc., 11 La. App. 564, 123 So. 446; Bass v. Means, supra.

The defendant was traveling in a lawful manner at the time of the accident. He was guilty of no negligence and the accident, in so far as he was concerned, was entirely unavoidable and he is not liable.

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


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    No. 4186
    Second Circuit
    E. B. NORMAN & CO. v. MULHEARN
    (December 9, 1931. Opinion and Decree.)
    Geo. Wesley Smith, of Rayville, attorney for plaintiff, appellee.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for defendant, appellant.
   DREW, J.

This case arose out of an automobile collision between plaintiff’s car and defendant’s car, at a point on the public highway about eight miles south of Columbia, La. Plaintiff sued for the damage to his car, and was awarded judgment in the lower court.

The necessary allegations of negligence on the part of defendant were made, and on trial of the case defendant admitted his negligence and pleaded contributory negligence on the part of plaintiff; therefore the only questions for determination by this court are the plea of contributory negligence, and the amount of damage done to plaintiff’s car.

There were only four witnesses to the accident; plaintiff and his companion, who was riding on the seat with him, and defendant and his companion, who was riding on the seat with him. The admitted facts are that the road had been graded for the purpose of gravelling or paving it, and on each side of the road there was an embankment of dirt and gravel that had been scraped from the road. Between these two embankments, the road was. eighteen -to twenty feet wide, and in very good condition. Plaintiff was traveling north and defendant south at the - time of the accident.

On every important question in the case, the testimony of plaintiff and his companion is the same, and directly in conflict therewith is the testimony of defendant and his companion, which is the same. The accident occurred at the .top- of a slight hill, with a small incline each way, and where there was a slight curve in the road. Plaintiff and his companion testified that he was on his right side of the road traveling about forty miles per hour, that they saw defendant’s car about one hundred feet before it reached the scene of the accident, and that on seeing the approaching car, plaintiff pulled as far as possible to the right, placing his front wheels upon or across the embankment of dirt and gravel, on his right side of the road. Defendant and his companion testified that he was traveling about forty-five miles per hour in the center of the road, with his left wheels to the left of the' center, and that plaintiff was. traveling fifty miles or fifty-five per hour in the center of the road, with his left wheels to his left center of the road; that defendant saw plaintiff’s car when within seventy-five or one hundred feet of the place of accident, at which time both attempted to turn to their right, but it was too late, and the two cars sideswiped.

The testimony of no one of the witnesses is • unreasonable, and, so far as the record discloses, it is of equal credibility. The location of the cars after the accident corroborates the testimony of plaintiff and his companion. After the accident, plaintiff’s car was on its right side of the road, the back end in the ditch, and the front end across the embankment of dirt and gravel, facing towards, plaintiff’s left. Defendant’s car was in the center of the road, facing the defendant’s left. Plaintiff’s car was struck about the front left wheel and cowl, and side-swiped all the way back. Defendant contends that at that point the dust caused by two cars that had passed a few moments before • the accident, together with the smoke from the burning woods on both sides of the road, prevented him and plaintiff from seeing, and that it was negligence for plaintiff to drive at the speed he was traveling under those conditió’ns.

The evidence discloses that the road was dusty, and there was some smoke which created a hazy condition, but did not entirely obscure the vision, as is shown by the testimony of all the witnesses that plaintiff and defendant saw each other at a distance of seventy-five or one hundred feet. Plaintiff testified that the only reason he did not see defendant’s car at a greater distance was due to the slight curve in the road, and not to the dust and smoke.

The cases cited by defendant, viz.: Dominick v. Haynes Bros., 13 La. App. 434, 127 So. 31; Woodley v. Schusters’ Wholesale Produce Co., 170 La. 527, 128 So. 469; Castille v. Richard, 157 La. 274, 102 So. 398, 37 A. L. R. 586; are not applicable under the facts in this case. He who alleges contributory negligence must prove it. The burden is upon him, and in this case defendant has failed. He neither has a preponderance of testimony nor is his testimony corroborated by the physical facts; that is, the location of the cars, after the accident. Defendant and his companion contend that plaintiff admitted his negligence after the accident. This is denied by plaintiff and his companion. The lower court found for plaintiff, and we find no error in the judgment.

The testimony as to the damage of the car is that it required an outlay of $945.90 to put it back in as good shape as it was before the accident, and .that is exactly what the law requires. That is the test of the amount of damage. It is true that the car was not put in the same condition as before the accident, and that plaintiff ■ did not have any work done on it. He sold the car for the towing and' storing charges, and received a credit of $250 on a new car whenever he is ready to buy one. The purchaser of the wrecked car of plaintiff, at a cost of over $500, repaired it with parts taken from another car that had burned. It is shown not to have been put in the same condition as before the accident. There is no denial of the testimony of the garage owner that it would take $945.90 to have repaired the car and make it as good as before the accident. The lower court took this testimony and awarded judgment in that amount, which, we think, is correct. Therefore the judgment of the lower court is affirmed, with all costs.


author: STEPHENS, J.

text:
    No. 4227
    Second Circuit (Second Division)
    WEST MONROE HARDWARE & FURNITURE CO., INC., v. MUNHOLLAND
    (December 9, 1931. Opinion and Decree.)
    Oliver & Digby, of Monroe, attorneys for plaintiff, appellee.
    Munholland & Munholland, of Monroe, attorneys for defendant, appellant.
   STEPHENS, J.

The plaintiff sues for $206.91 and legal interest thereon from judicial demand, alleged to be the balance due on an open account.

The defendant filed an answer admitting a liability on the account sued on of $114'.-25, and tendered therewith and deposited in the registry of the court the sum of $120, which included accrued costs.

Judgment was rendered in favor of plaintiff in the lower court in the sum of $205.41, and the defendant has appealed.

The plaintiff and appellee has moved to dismiss the appeal for the reason that this court is without jurisdiction of the amount involved.

As the amount .in dispute is clearly less than $100 exclusive of interest the motion is sustained and the- appeal dismissed.


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    No. 4218
    Second Circuit
    POULAN v. DEAS
    (December 9, 1931. Opinion and Decree.)
    Oliver & Digby, of Monroe, attorneys for plaintiff, appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellee.
   DREW, J.

Plaintiff sued for $143.85 alleged to be due him for damages to his car caused by a collision with the car of defendant, which was driven by his wife.

Defendant denies liability and reconvenes for damages, in the sum of $250, alleged to have been done his car by the collision.

The lower court rejected the demands of both plaintiff and defendant, and plaintiff has appealed to this court. There is no answer to the appeal, and no appeal was taken by defendant from the judgment rejecting his reconventional demand. Therefore, the demand of, plaintiff is the only thing before us for determination.

Plaintiff, traveling in a Ford car, was going south on Fourth street, and defendant' was traveling east on Glenmar street, in the city of Monroe, La. Defendant’s wife was driving a Lincoln car. At the corner of Fourth and Glenmar is a church. The day of the accident was Easter Sunday, about the noon hour, and services were being held at the church at the time of the accident. Automobiles were parked one behind the other on both sides of Fourth and Glenmar streets, making it necessary to travel between a line of cars on each side of the street in traveling either street, which more or less obstructed the view of one driving a car on either street upon entering the intersection. Fourth street was a right of way street, but, on entering Fourth from Glenmar, the ordinance of the city did not require one to stop. The speed limit fixed by ordinance of the city was twenty-five miles per hour. The preponderance of evidence is, •we think, that plaintiff was traveling at a speed of thirty miles per hour when he entered the intersection, and that defendant was traveling at a speed of about ten miles an hour. The collision occurred in the southeast corner of the intersection, which corroborates the positive testimony that defendant’s car entered the intersection first, and the front of defendant’s car had reached the center of the intersection before plaintiff’s car entered. The speed we find the two cars were making is further corroborative of this fact, for if the car of plaintiff, making thirty miles per hour, had entered the intersection first, it would have crossed the intersection entirely before being struck by defendant’s car, making ten miles per hour. Defejidant’s car, having entered the intersection first and traversed half of said intersection before plaintiff reached the intersection, it was the duty of plaintiff to have had his car under control, and to have allowed defendant to pass on before entering. The number of parked cars on both sides of the street called for extra precaution on the part of plaintiff and defendant, and we are convinced that when plaintiff attempted to cross the said intersection at a rate of speed of thirty miles, or even twenty miles, per hour, as testified to by him, he was guilty of negligence, under the conditions that prevailed at that place at that time.

Although Fourth street was a right of way street, after defendant had got into the intersection, it was the duty of plaintiff to let her cross, and he was not justified, under the law, in attempting to cross said intersection; and his negligence in traveling at an excessive rate of speed on entering the intersection, together with his negligence in entering the intersection, after defendant had halfway crossed it, is sufficient to bar his right to recovery.

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


text:
    No. 4090
    Second Circuit (Second Division)
    PEPPER v. SOUTHERN BELL TEL. & TEL. CO., INC., ET AL.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    (January 4, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Melvin F. Johnson and Malcolm. W. Feist, of Shreveport, attorneys for plaintiff, appellee.
    Foster, Hall, Barrett & Smith and Mabry & Carstarphen, of Shreveport, attorneys for defendants, appellants.
   STEPHENS, J.

The plaintiff sues for damages in the sum of $10,000, for injuries alleged to have been sustained as a result of his having fallen while walking on the sidewalk in the 700 block qn Cane street, in the town of Bossier City, Louisiana.

It is alleged in the petition that the defendant the Town of Bossier granted a permit to the defendant Southern Bell Telephone & Telegraph Company, Inc., to construct a subway for the purpose of laying its conduits under its streets and sidewalks; that it was necessary in the execution of the work to dig a ditch along and through the dirt sidewalk in the 700 block on the north side of Cane street; that the ditch was filled in such a manner as to leave a prominent mound, o.r ridge, which sloped sharply on its sides to the level of the surrounding ground, thus forming a gross inequality between the top of the elevation and general level of the sidewalk.

It is further alleged that the top of the ridge was used by the pedestrian public, and was unsafe and dangerous for the purpose, and exposed those walking upon it to potential injury. It is alleged that on the day the accident occurred, snow and ice covered the ground, and that plaintiff was walking on top of the elevation or ridge, and that he slipped and fell, and as a result thereof, his right thigh bone was broken, his knee permanently stiffened, and his right leg shortened and permanently injured.

He places the responsibility for his injuries upon the Southern Bell Telephone & Telegraph Company, Inc., on the ground that it created a dangerous condition by reason of having failed to properly refill the ditch. The theory upon which he seeks to hold the town of Bossier City liable, is that it was negligent in permitting the dangerous condition qf the sidewalk created by its co-defendant to exist.

Both defendants filed exceptions of vagueness and of no cause or right of action. The former were overruled and the latter referred to the merits, by the district judge.

The' defendants, reserving their rights under the exceptions, answered denying the existence of the alleged dangerous condition, and in the alternative pleaded the contributory negligence of the plaintiff.

A trial resulted in a judgment in favor of the plaintiff and against both defendants, in solido, in the sum of $2,000. The defendants appealed.

The learned district judge found the facts in the case to be as follows:

“That under a permit from the town of Bossier City the telephone Company dug certain ditches through the streets and sidewalks of said town fqr the purpose of laying underground wires or cables, the work being performed under contract by G. M. Guest, contractor, and in the course of the work, probably in November, 1929, dug a ditch practically down the center of a dirt space on the north side of Cane Street, some two or three feet from the curb, which space is and had been for sometime previous, used by pedestrians as a sidewalk.
“That some three or more years before that time, when the street was paved, dirt from the street had been piled out on the north side so that a strip some six feet wide was built up from six to eight inches higher than the curb. This strip had been walked on and packed down, and was fairly level and a good place to walk before the ditch was dug and filled, and was ordinarily used by pedestrians travelling the north side of Cane street in the 700 block.
“That after the ditch was dug and refilled there was a strip of the walk near the center that was some eight to seventeen inches high at the crown and some twelve to fourteen inches across the top that was level and sloping at the sides, and pedestrians ordinarily walked along the top of this ridge. I may add that I have lately made a personal inspection of the walk where the accident was shown to have occurred, and there is still some evidence of this ridge now visible,- higher in some places than in others.
“That the weather was cold' on January 24, 1930, and a snow had covered the ground two or three days previous, and some snow was still on the ground, and that the snow was beaten out on the top of the ridge and the ground frozen.
“That on the morning of the accident the plaintiff was walking along the top of this ridge going in a westerly direction when overtaken by another pedestrian, a Mr. Roy, going in the same direction, and when spoken to by Roy, he stepped to the south side of the walk, which was sloped and his foot slipped from under him and towards the south or curb side, causing him to fall across the ridge in the walk, as a result of which he sustained a broken right thigh.
“That he was confined to the Charity Hospital for some five weeks, and had to remain in a plaster cast three weeks longer, and is still walking on crutches a year from the accident; that he suffered com siderable pain and his right leg is 1% inches shorter than the left, and the muscles of the right' thigh are slightly atrophied; that with a proper built up shoe he will be able to discard crutches and probably cane.
“That the manner in which the ditch was refilled and left by the Telephone Company was negligent.”

This statement of the district judge fairly and accurately reflects the facts as disclosed by the record and we agree with his findings therein as a whole, which includes the conclusion of law in the last paragraph.

The authorities uniformly hold that the question of the responsibility of a municipal corporation for a defective sidewalk depends upon the particular circumstances in a given case. We find the rule stated in McQuillin on Municipal Corporations as follows:

“The municipality need not keep sidewalks absolutely safe, and is not responsible for every defect thereon. The municipality must have been negligent in order to be liable for injuries thereon. What is a defect or obstruction in or on a sidewalk which will constitute negligence on the part of the municipality is governed by no fixed rule, but is to be determined by the facts of the particular case and surrounding circumstances, such as those noted above in connection with the discussion of particular defects in general. s{c
“Finally, municipal negligence may be established by any defect which renders the sidewalk dkngerous or unsafe for use by travelers exercising ordinary care for their own safety.”

Municipalities are responsible for injuries caused by defective sidewalks, if they are of such a nature that danger therefrom may be reasonably anticipated.

“Holes, ruts, or depressions in the street or sidewalk may give rise to a cause of action for injuries caused thereby if they are of such a nature that danger therefrom might be reasonably anticipated. But slight holes or depressions which are not in the nature of traps, and from which danger could not reasonably be anticipated, are not defects for ■which an action will lie.” 43 Corpus Juris, 1014.

The ridge in question was of such a nature as to be safe in good weather, but unsafe and dangerous under the conditions which existed at the time of the accident. As the defendants knew of the possibility of the conditions occurring, which existed at the time of the accident, they are chargeable with the duty of anticipating the danger incident thereto. The defendants, we think, are liable on the' theories advanced by plaintiff unless it be shown that plaintiff failed to observe ordinary care in choosing to walk upon the ridge under the existing conditions and surrounding circumstances.

The plaintiff lived • within a block of where the accident occurred. He walked upon the ridge frequently for a considerable period of time before the accident, and therefore must have been perfectly familiar with the irregularities of its surface, its height and the abruptness of the slope of its sides. The accident occurred in broad daylight; he therefore could not have been unaware of the danger of walking on a frozen irregular surface on a narrow ridge. If, as we have stated, the defendants might have reasonably anticipated the dangerous condition of the ridge, which would be caused by the presence of snow and ice, clearly, the plaintiff, who was confronted with the actual condition in good light, must be charged with appreciation of the danger.

The accident occurred on the north side of Cane street. The street and the sidewalk on its south border are paved. On each side of the ridge there was a path or passageway used to some extent by pedestrians, and which at the time of the accident was covered with snow.

If the plaintiff realized the danger of walking on the ridge where the snow had been beaten down and ice had formed, and in our opinion lie did realize the danger, it was his duty, in observing ordinary care, to use one of the passageways which existed on either side of the ridge, or to cross the street and walk upon the paved sidewalk.

“It is well settled that a traveler who knows, or,' as an ordinarily cautious person, ought to know, that it is dangerous to pass over a defective driveway, cross walk or sidewalk, and does so, although he might have taken another safe and convenient path or course in the same direction, is guilty of such negligence as will defeat recovery for damages in event of injury, caused by the dangerous condition of -the way. Thus, if the walk on the other side of the street is known to be in good condition, and it is not necessary to go upon the unsafe sidewalk, there can be no recovery.” McQuillin on Municipal Corporations (2d Ed.) vol. 7, p. 281.

The paths suggested, each supplied plaintiff with a safe and convenient way leading in the same direction. It is true that it would have been slightly more difficult to walk in the loose snow on the paths suggested than on the frozen surface of beaten snow on the ridge; but this slight difference in the amount of effort required to walk should not have deterred plaintiff in the exercise of ordinary care from choosing a safe passageway, if confronted with a known dangerous one.

We must conclude that the plaintiff was guilty of contributory negligence in choosing an unsafe passageway when a safe and convenient passageway leading in the same direction was available. If he had used ordinary care he could have avoided the injury.

In Moore v. Mayor, etc., of City of Shreveport- 3 La. Ann. 645, in which recovery was sought for injury sustained by a fall in the street caused by an obstruction and the general bad condition of the street, it was held:

“The obstruction complained of was" in the business part of town, and had been permitted to remain for some time. The plaintiff was a clerk in a store, and resided there; and with ordinary caution on his part, the injury would have been avoided.”

The court denied recovery.

In the case of Whalon v. Sewerage & Water Board, 142 La. 735, 77 So. 520, the plaintiff sued for damages alleged to have been suffered by her falling upon a broken and uneven sidewalk. One of the defenses urged was that the plaintiff was aware of the unsafe condition of the sidewalk and could have avoided the danger with ordinary prudence. The Supreme Court in referring to this defense, used the following language:

“We have concluded that the latter defense is sufficient. The accident happened in front of the premises adjoining the plaintiff’s residence. She admitted in her testimony that she was aware of the unsafe condition of the sidewalk, and had, written a complaint to. the • superintendent of the sewerage and water board before the accident. Her testimony convinces us that, with ordinary care, she could have avoided the accident.”

In the case of Barnes v. City of New Orleans, 4 La. App. 503, the plaintiff brought suit alleging that at 7:40 in the morning while walking along one side of Toulouse street, she suddenly fell into a large hole in the banquette which she had not observed, on account of the grass which covered it. We quote from the opinion in this case the following:

“Plaintiff says she could not see the' broken pavement nor the hole in the ground on account of the grass and weeds growing over it three feet high. This court will take judicial cognizance of the fact that in April vegetation has not yet acquired that growth, as she had been walking upon the sidewalk, year in and year out, for several years prior to the accident she was sufficiently acquainted with its condition during all seasons. If that side of Toulouse Street was bad she could have taken the other side. When two roads, one with and the other without danger, are open to plaintiff, and she chooses the former and is hurt, she cannot recover damages.”

This court held in the case, of Nolan v. City of Shreveport, 7 La. App. 218, that plaintiff was barred from recovery because of contributory negligence in that she knew of the existence of the obstruction over which she stumbled and fell, and could have avoided the resulting injury if she had observed ordinary care.

The case relied on by plaintiff as “more similar to the case at bar than any other is” (quotation from plaintiff’s brief), is Blume v. City of New Orleans, 104 La. 345, 29 So. 106. In -that case the injury was caused by plaintiff stumbling' against an abrupt elevation of five inches in the sidewalk. The plaintiff was permitted to recover.

In our opinion, the cited case bears but slight similarity to the present one. The accident in the cited case occurred at night. The place of the accident was unlighted, either by the moon or artificial light. The elevation was across the path of travel and the plaintiff was not shown to have known of its existence. The court in commenting qn the case said:

“As relates to the accident itself, the facts are that, on the night plaintiff fell 'there was no moonlight; it was dark at the place of the accident, that is on the dividing line between the Wood banquette and Rhoel banquette. The banquette on the Rhoel property was raised, in 1895, five inches higher than the banquette on the Wood property. Between the properties the rise was abrupt. There was no incline at all.”

The other cases cited by (plaintiff are distinguished from the instant case, in that the accidents occurred at night under conditions, the knowledge of the danger of which were not chargeable tq the persons injured, because they could not see them, or the accidents resulted from dangerous defects not easily discernible in the daytime by observing ordinary care. To the former class of cases must be assigned Lemoine v. City of Alexandria, 161 La. 562, 92 So. 58, and McCormack v. Robin, 126 La. 594, 52 So. 779, 139 Am. St. Rep. 549; and to the latter class, those commonly spoken of as trap cases, Rock v. American Construction Co., 120 La. 831, 45 So. 741, 14 L. R. A. (N. S.) 653; Burke v. Werlein et al., 143 La. 788, 79 So. 405; O’Neill v. City of New Orleans, 30 La. Ann. 220, 31 Am. Rep. 221; Robertson v. Town of Jennings, 128 La. 795, 55 So. 375.

In the case of Buechner v. City of New Orleans, 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455, cited by plaintiff, contributory negligence was not pleaded as a defense. It can therefore have no application here.

We are of the opinion that the lower court was in error in holding the plaintiff not guilty of contributory negligence.

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


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    No. 4080
    Second Circuit
    BARNETT v. SANDFORD ET AL.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)

      Foster, Hall, Barrett & Smith and Edward Barnett, of Shreveport, attorneys for plaintiff, appellant.
    Murff & Perkins, of Shreveport, attorneys for defendants, appellees.
   TALIAFERRO, J.

The record in- this case presents for decision certain questions of law, and in order to fully understand and appreciate these questions, we must state briefly certain salient facts which are undisputed, and are as follows:

Isaac Sandford et al. sold to one J. A. Chambers certain lands in Caddo parish, Louisiana, retaining a vendor’s lien and mortgage, with the “pact de non alienando” thereon, to secure the purchase price thereof, and the defendant in this case, Isaac Sandford, became the owner of one of the said vendor’s lien notes given by Chambers as part of said purchase price, which note was acquired by Sandford before maturity in good faith, and for a valuable consideration. This sale and note are dated August 25, 1923, the note being made due and payable twenty-four months after date.

That on the 23rd day of October, 1923, which was some several months before the note became due, Chambers transferred the property to one J. A. Rice, stating in the deed that he, Chambers, had in reality purchased the property for Rice, and, therefore, ceded it to. him as its rightful owner.

That on October 24, 1923, the said Rice organized the New Zior. Rest Cemetery, Incorporated, said corporation being capitalized at some $25,000, divided into 250 shares of $100 per share value, and that Rice became president and manager thereof; and on the 18th day of December, 1923, the said Rice deeded the property so1 acquired to the said corporation recently organized by him, in consideration of 248 shares of its capital stock.

That on January 30, 1925, the aforesaid corporation sold the property . to one Vaughan for a certain consideration, partly paid in cash and partly represented by five vendor’s lien notes, and the- purchaser further assumed payment of the note sued on herein and the mortgage and lien given by Chambers on the property at the time he purchased same from Sandford, in the first instance stated above. This transaction was by notarial act.

The plaintiff in this case purchased these notes mentioned in the last paragraph given by Vaughan as part of the consideration and purchase price of said property.

On the 1st day of October, 1925, Vaugh: an transferred this property to one Moore for a cash consideration, and the assump: tion by Moore of the mortgage and vendor’s lien note held by Sandford, described in the act of transfer from Sandford et' ahtp Chambers. .Moore, in this deed, promised to pay the note in question, which-was then held by Sandford.

While Vaughan owned and held record title to this property, he paid interest on ' the mortgage note held by Sandford, endorsed it, and procured extension of time in which to pay same. Moore, while he. owned and held record title, and after he had assumed the Sandford mortgage, also paid interest, endorsed the note, and on August 19, 1926, paid $250 on che principal amount of the note; and Moore continued to pay the interest on said note and procured extension of time thereon up to the 26th day of August, 1929.

On the 2nd day of September, 1930, some few days after five years had elapsed since the maturity of said note of Chambers to Sandford, petition was filed by Isaac Sand-ford against J. A. Chambers, on which he procured an order for a writ of seizure and sale to enforce the payment of said mortgage note.

The plaintiff herein filed an independent and separate suit against the plaintiff in the foreclosure proceeding and the sheriff of Caddo parish wherein she alleged that she was the holder and owner of four of the notes which had been given by Vaughan when he purchased the property from the New Zion Rest Cemetery, Incorporated; further alleging that the note given by Chambers as part of the purchase price when he acquired the property from Isaac Sandford was extinguished by the prescription 'of five years and that the mortgage securing the four notes held by her was the first mortgage on the property, against which Sandford sought foreclosure. She further prayed for the issuance of a writ of injunction, enjoining, and restraining the sale of the property under the writ of ex-ecutory process hereinabove mentioned, which preliminary writ of injunction was granted and issued; whereupon the defendant, Sandford, moved to dissolve the preliminary writ of injunction, and further sought to recover damages in the amount of $100 as attorney’s fees for the dissolution of the writ, and also $10.50 for the amount expended in the advertisement of the property in question. The defendant, Sandford, also then filed his answer to the merits to the suit for injunction and by agreement of counsel the motion to dissolve the writ and trial of the suit on the merits were to be tried at one and the same- time, without prejudice. And on trial thereof, the same evidence was offered, heard and considered by the court as to the motion to dissolve, and on the merits.

There was judgment dissolving the writ of injunction, rejecting the demands for damages and dismissing plaintiff’s suit, at her cost. An application for rehearing was filed and urged, but denied.

We have stated at some length the above facts appearing from the record in this case for the reason that in order to appreciate the issues involved in the case, these facts should be kept constantly in mind.

Now, the two matters submitted for decision are as follows: Was the note involved in suit filed on September 2, 1930, prescribed by the five-year prescription, or had prescription been interrupted by the payments thereon as above enumerated? And should the defendant be awarded damages in the amount of $100 as attorney’s fees, and the amount of $10.50, claimed, as damages for the wrongful and illegal issuance of said writ of injunction?

We do not think the note foreclosed on prescribed before the suit was filed. It must be remembered that at the time of the transfer of the property in question from the New Zion Rest Cemetery, Incorporated, to Vaughan, which transfer involves the notes held by plaintiff in this suit, that the mortgage securing the payment of the Sandford note appeared duly recorded in the mortgage records of Caddo parish, thereby giving legal notice to all parties concerned of‘the 1 existence of said mortgage, resting upon this property, and it must be further remembered that by the transfer of the' property from Chambers to Rice, the transferor merely ceded to the transferee this property, declaring that the transferee was the rightful owner thereof, and that the transfer from Rice to the New Zion Rest Cemetery, Incorporated, was hut an exchange wherein Rice transferred tq a corporation of which he was to all intents and purposes the owner, executive head and manager, and when he, for his company, transferred this property to Vaughan, he required of the said Vaughan the specific assumption of the Sandford note and mortgage; and, as the record discloses, Vaughan and Moore proceeded thereafter to pay on said note in keeping with their assumption of it.

In view of these facts, can it be said that the payments on said note by Vaughan and Moore dq not exonerate the maker thereof to the extent of payments made? If it does exonerate and relieve the maker, then the payments made before the prescriptive period had elapsed would have the effect of interrupting prescription. There is no question that when Vaughan and Moore assumed the payment of this note and mortgage, they became obligated in solido with the maker to pay and discharge this debt, under article 2091 of the Civil. Code. We quote articles 2107, 1760 and 2091 as follows:

“Art. 2107. Obligations In Solido by Effect of Law. There are many contracts in which the obligation is declared by law to be in solido, without any express stipulation to that effect; these will be found in the different chapters which treat of such contracts.”
“Art. 1760. Civil Obligations, in relation to their origin, are of two kinds:
“1. Such as are created by the operation of law.
“2. Such as arise trom the consent of the parties who are bound by them, which are called contracts or conventional obligations.”
“Art. 2091. Obligation in Solido on Part of Debtor. There is an obligation in so-lido, on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them exonerates the others toward the creditor.”

Under the facts of 'this case, we therefore hold that they were in solido debtors, obligated each to pay and satisfy the note in question.

And, it therefore naturally follows that the interruption of prescription by the act of one of the debtors in solido, interrupts prescription with regard to all of the in solido debtors, as provided in article 3552 of the Civil Code, which article is as follows:

“Art. 3552. Debtors in Solido; Heirs. A citation served upon one debtor in so-lido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others and even their heirs.”

We think that ample authority for our holding that prescription of five years cannot be successfully urged here is found in the case of Rhys v. Moody, 163 La. 1039, 113 So. 367, where the principles of law involved in this case are fully and clearly discussed and laid down.

As to the second point raised concerning the right to recover $100 as attorney’s fees and $10.50, being expenses paid for publication of sale in the foreclosure proceedings, we hold that the attorney’s fees cannot be awarded, under authority of Three Rivers Oil Company v. Laurence, 153 La.' 231, 95 So. 652, 654, which is as follows:

“As the injunction issued wrongfully, and as defendant suffered some damages, he is entitled to a judgment for the 'damages suffered. However, in allowing- them, we think the lower court erred in rendering judgment for attorney’s fees. While it is true that a motion to dissolve the writ of injunction was filed, and was referred to the merits, without prejudice to either party, yet it is also true that this motion involved a trial on the merits, and that the injunction was in fact dissolved on the merits, and not on the motion. Under the circumstances, attorney’s fees will not be allowed as damages, for to dp so would be to allow the 'fees virtually for’ defending the suit on the merits, which is not permissible.”

And as to the item of $10.50, we think this should be allowed, under authority of case quoted, supra, and also under the ruling in the case of Jackson v. Whitbeck, 3 La. App. 487.

Accordingly, for the reasons assigned, the judgment appealed from is hereby amended by allowing defendant the sum of $10.50, as damages, and, as amended, it is affirmed; plaintiff and appellant to pay all costs of court.


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    No. 4204
    Second Circuit
    PRICE v. BRENNER ET AL.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    R. G. Pleasant and Nash Johnson, of Shreveport, attorneys for plaintiff, appellee.
    Cook & Cook, of Shreveport, attorneys for defendants, appellants.
   DREW, J.

Plaintiff sued on an appeal bond to recover 10 per cent attorney’s fees under authority of Act No. 225 of 191,8. She alleged: That in suit No. 48,815 on the docket of the First judicial district court for Caddo parish, La., she obtained judgment against the defendant Mrs. Bertha B. Florsheim, for $4,000, with legal interest from judicial demand and for costs. From this judgment Mrs. Florsheim appealed suspensively and devolutively and executed an appeal bond with Charles M. Brenner as surety thereon. That the judgment was affirmed by this court and became final and executory on April 10, 1930. That no part of said judgment has been paid, and that during the month of May, 1930, plaintiff gave written notice to both Mrs. Florsheim and Mr. Brenner, in accordance with Act No. 225 of 1918, that, unless the amount of the judgment was paid within thirty days, suit would be filed in which plaintiff would demand 10 per cent attorney’s fees. That, upon receiving no reply from either and no part of the judgment having been paid, plaintiff took a rule against the surety, Mr. Brenner, and obtained judgment for the full amount of the judgment rendered against his principal. That said judgment on rule reserved to plaintiff the right to sue for 10. per cent attorney’s fees. Availing herself of the provisions of Act No. 225 of 1918, that she is entitled to 10 per cent attorney’s fees on the amount of the judgment rendered against the principal debtor. That she has made amicable demand in writing upon both defendants herein, and that more than thirty days had elapsed from the date said notice was received by defendants. She alleged that she had fully complied with Act No. 225 of 1918, and prayed for service on both defendants and for judgment against both in the sum of 10 per cent of the amount of judgment, principal, and interest and costs in case No. 48,815 on the docket pf the First judicial district court for Caddo parish, La.

Defendants filed an exception of no cause of action, which was sustained as to Mrs. Florsheim and overruled as to the surety, Brenner. Defendant Brenner then answered admitting the allegations as to the original judgment, that it had not been paid, that notice was served as alleged, but denying that it was in accordance with Act No. 225 of 1918. He admitted that judgment on rule was taken against him; in fact, the answer is merely a renewal of the exception of no cause of action, that is, that the plaintiff did not bring herself within the provisions of Act No. 225 of 1918, and that said act did not apply to her case.

On these issues the case was tried, resulting in judgment against the defendant Brenner as prayed for, and from said judgment he has appealed. No appeal was taken by plaintiff as to the principal, Mrs. Florsheim, and she is not before this court. The question before the court is the interpretation of Act No. 225 of 1918, which act, in so far as it applies to sureties on appeal bonds, appears never to have been interpreted by the courts of this state. The act reads as. follows:

“Be it enacted by the General Assembly of the State of Louisiana, That it shall be the duty of every surety on a bond, whether given in a judicial proceeding, building contract or otherwise, to promptly pay its obligation under the bond when it arises to any person, firm or corporation having a claim, demand or right of action on the bond where the principal fails to pay as per the terms of his contract and in the event that the surety should fail to pay his or its obligation as aforesaid, and it should become necessary for such person, firm or corporation to file suit against the principal and surety, for the recovery of the amount due and owing, the said person, firm or corporation so filing suit who, has- employed an attorney, shall be entitled to recover, and the court shall award, ten per cent attorneys fees on the amount recovered, provided, that the said ten per cent attorneys fees shall only be recoverable where the full amount claimed by the suitor is recovered, and that the said suit may only be filed, where attorneys fees are sought to be recovered, after amicable demand for payment has been made in writing on the principal and surety, and thirty days shall elapse from the receipt of said notice by the. principal and surety from the claimant without payment being made.’’

Recovery under the act is conditioned upon it becoming necessary for the claimant “to file suit against the principal and surety, for the recovery of the amount due and owing” the said claimant filing the suit. The statute is a penal one and must be construed strictly. The act does not say “principal and surety, or either,” but conditions the right to recover • thereunder upon it becoming necessary to sue both the principal and surety. If it was the . intention of the Legislature to include sureties on appeal bonds, which might be presumed from the wording at the beginning of the act, “that it shall be the duty of every surety on a bond, whether given in a judicial proceeding, building contract or otherwise, * * *” it has by the very wording of the act conditioning the right to recover upon the necessity of suit being filed against both “principal and surety” eliminated from the act the right to recover against the surety on an appeal bond.

We can think of no case where it would become necessary for a plaintiff, who had secured a final judgment against the defendant, to again sue the defendant for the judgment that was at the time final in his favor against the defendant, the principal on the bond. The only action necessary in such a case is to have a fieri facias issue, and, if same is returned unsatisfied, the right of the judgment creditor against the surety on the appeal bond is fixed by the Code of Practice (articles 596, 755). There is no allegation that a fieri facias was ever issued in this case, and it was unnecessary for the judgment creditor (the claimant) to sue both the judgment debtor (the principal) and the surety on the bond. Under a strict interpretation of Act No. 225 of 1918, which is required of all acts of a penal nature, the exception of no cause of action should have been sustained.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the demands of plaintiff be rejected, with costs.