author: MOUTON, J.

text:
    No. 858
    First Circuit
    PERRY v. FIDELITY & GUARANTY FIRE CORP. OF BALTIMORE, MD.
    (October 7, 1931. Opinion and Decree.)

      Bascom D. Talley, of Bogalusa, attorney for plaintiff, appellee.
    Harvey E. Ellis and Frank B. Ellis, of Covington, attorneys for defendant, appellant.
   MOUTON, J.

October 3, 1929, defendant corporation insured an auto belonging to plaintiff, Mrs. Perry, against fire and theft. In the policy her occupation is given as housewife; that of her husband, crane operator.

The description of the car, cost to owner, etc., is given as follows:

“Model 1928, Chrysler Sport Roadster, Serial No. 757, Motor No. 59753; Horse Power 6 cylinders; actual cost to owner $465.00 and date of purchase October 2nd, 1929.”

It. is stated in the policy that the car will be used for the following purposes, only: Pleasure and business.

The auto was insured for an amount not exceeding $300.

It is declared in the policy that 'the assured’s business, employer’s name and address, the' description of the auto, the facts with respect to its. purchase, the uses to whicli it is and will be put, as contained in the policy, are facts known to the assured to be true. It is also therein stipulated that in the event of any violation by the assured of any agreement, condition or warranty contained in the policy, it shall be void.

The auto was completely destroyed by fire on October 29, 1929. This suit is for the face value of the policy; for interest and attorney’s fees.

Judgment was rendered in favor of Mrs. Perry, and the W. F. Simmons Auto Company, intervener in the case, against defendant corporation for $290, with 8 per cent interest thereon from October 2, 1929, and 15 per cent attorney’s fees.

Plaintiff answers the appeal, asking that the judgment be increased from $290 to $300, by allowing a penalty of 25 per cent instead of 8 per cent, and $100 as attorney’s fees.

Exceptions filed by defendant were overruled.

Counsel for defendant contend, that the covenants, stipulations, and conditions of the contract of insurance, hereinabove referred to, are material and were breached by plaintiff; that even if not essentially material as they were conditions precedent •to the -issuance of the policy, and upon ■which it was. issued, that the misstatements of the plaintiff in reference thereto vitiate the policy, rendering it null and void.

The specified grounds of resistance to plaintiff’s claim are as follows:

First, that the employment of plaintiff’s husband was given as a crane operator in the Great Southern Lumber Company, which was false.

Second, that the actual cost of the car was. stated to be $465, when in reality it was only $290.

Third, that the model of the car was stated to be of 1928, when in truth the model was of 1927.

Fourth, that plaintiff was engaged in no business, that the car was not used for' business and pleasure, as was stated in the policy, was not used in any legitimate business, but was used in an illicit business.

.Fifth, that the proof of loss was not filed within sixty days, as required by the policy.

The last defense as to the filing of proof within the time specified is not pressed in defendant’s brief and we may add, in disposing of it, that it is disproved by the record.

The exceptions, of no cause of action and want of capacity in intervener to sue being waived by counsel in their brief, we shall proceed to pass on the’ defenses in the order hereinabove given.

In making the contract of insurance with defendant, plaintiff was represented by Simmons, intervener; and defendant by Dickerson, its local agent, who testifies that Simmons, told him that P. O. Perry, plaintiff’s husband, was employed as a crane operator in the Great Southern Lumber Company, as was written in the policy. If such a statement in a policy of insurance could be taken as legally affecting its validity, if false, it can have no such effect here, as it was not made by the assured. The fact is, however, that Simmons says positively that he gave no such information to Dickerson, as he did not know where P. O. Perry was employed at the time, if he was then an employee anywhere.

Three witnesses testified that Dickerson had admitted to them that he had stated to them that he had made wrong or shady statements as a witness in the case for his protection or preservation.

With such testimony in the record, we think that credence should be given to the statement of Simmons that he did not tell Dickerson that plaintiff’s husband was employed in the Great Southern Lumber Company.

Even if this information had been given by plaintiff, the assured, and amounted to a warranty vitiating the contract in the event it were false, such a breach could not have increased either the moral or physical hazard under the policy, and could not avail the insurer to avoid liability. Act No. 222, 1928, p. 291; Sigrest v. Federal Insurance Co., 14 La. App. 55, 129 So. 379.

The second defense is in reference to the actual cost of the car stated in the policy at $465.

The auto was sold to plaintiff by' Simmons, he testifies, for $465, $175 cash, the balance of $290 in promissory notes, payable at different dates, which the record shows were placed together with the policy in the hands of the Washington Bank & Trust Company, and to which Simmons, intervener, was subsequently subrogated. It is therefore certain that these notes amounting to $290 formed part of the consideration of the sale of the auto to plaintiff, leaving the question for decision on this issue only as to whether $175 was paid in cash so as to account for the $465 as being the actual cost to plaintiff mentioned in the policy.

In reference to this cash payment Dickerson says that' Hooly, adjuster for defendant, asked Perry how this initial payment was made. Dickerson says, Perry stated he had given Simmons a check for that amount on the People’s Bank of Biloxi, and that his wife had stated this check had been issued by her husband, but that she had torn it up, and had paid Simmons in cash.

The sale by Simmons to plaintiff is authentic, and was executed October 2, 1929. The price for the auto therein stated is for $465, declared to be purchased by plaintiff with her paraphernal funds, of which $175 is acknowledged to be in cash, and the balance in promissory notes. The declarations of this authentic deed are certainly corroborative of the statements made by Simmons, and account for the tearing by Mrs. Perry of her husband’s check issued for the price of the auto and its payment by her, the explanation Dickerson says she gave of the transaction.

Albert Seals testifies that in. 1928 Simmons- 'had sold him the auto in question for $450. This fact does not show that he could not have subsequently sold it to plaintiff for $465, and does not destroy the evidence of Simmons that he got $465 for the car from plaintiff, as it is so stated in the notarial deed to which we have hereinabove referred.

The third contention is that the model given was of 1928 instead of 1927, the correct year. This contention is no factor in. the case, except in this, that a model of the year preceding -the date given could affect the value of the auto. The preponderance of the evidence shows that the auto was worth about the amount it was sold for to Mrs. Perry, and that -the actual cost to her was $465, as declared in the policy.

Simmons, however, denies, that he gave Dickerson the model as- of the year 1927, and we do not believe he did. This, erroneous information, taken independently of the question of the actual cost of the car ■to plaintiff or of its value, could not be considered a breach of warranty, as it would not increase the moral or physical hazard under the policy.

Fourthly, it is contended that plaintiff was engaged in no business. The policy says plaintiff’s occupation is that of housewife. This is not a business in the usual acceptation of the word, but we do not see how this could be a cause authorizing a cancellation of the .policy. In this fourth defense, it is also- stated that the car was not used for pleasure and business as provided for in the contract. There is no proof that it was. not so used. It is also charged that it was used in an illicit business.

It was shown that P. O. Perry, husband of plaintiff, was engaged" in the bootlegging business, but there is no proof whatsoever .to show that the car was used in ■the transportation of whiskey or any other intoxicating liq/uor.

The defenses above disposed of embody a plea in exoneration by defendant of its obligations under its contract of insurance, because of its alleged violation by plaintiff. The proof does not sustain any of the defenses, and defendant was correctly held liable under the terms of the policy; but judgment should have been rendered for $300, the amount of the insurance, and not for $290; which should also have allowed plaintiff 25 per cent damages on the loss and reasonable attorney’s fees for the prosecution and collection of the loss. Act 59, 1921, sec. 3, p. 76.

Counsel for defendant frankly admitted that the work done by the attorney for plaintiff in taking testimony in New Orleans and in the trial of the case, and subsequently to be required on appeal, if one was taken, was worth $100. The record and the briefá' filed by defendant show that a stubborn defense was presented, was carefully -and very ably conducted which was industriously and fully met by counsel for plaintiff.

We think that the sum of $75 should be allowed counsel for plaintiff as attorney’s fees, and that the judgment will have to be accordingly increased as above outlined.

It is therefore ordered, adjudged, and decreed that the judgment be amended by allowing plaintiff $300 instead of $290 on the policy; that plaintiff recover against defendant 25 per cent damages on said $300 instead of 8 per cent allowed below; and that plaintiff be decreed attorney’s fees in the sum of $75 instead of the 15 per cent granted in the judgment; and that as thus amended and increased, the judgment be affirmed.


source: Caselaw Access Project

author: ELLIOTT, J. LeBLANC, J.

license: Public Domain

text:
    No. 857
    First Circuit
    REED v. FIDELITY & GUARANTY FIRE CORP. OF BALTIMORE, MD.
    (October 7, 1931. Opinion and Decree.)

      Bascom D. Talley, of Bogalusa, attorney for plaintiff, appellee.
    Harvey E. Ellis and Frank B. Ellis, of Covington, attorneys for defendant, appellant.
   ELLIOTT, J.

Jesse Reed claims of Fidelity and Guaranty Fire Corporation of Baltimore, Md., the sum of $500 oni an insurance policy, with interest; 25 per cent thereon as statutory damages; and $175 in addition as attorney's fees. He alleges that he insured his automobile in the defendant company against loss by theft, that it was stolen, and that he has never heard of it since.

W. F. Simmons, sole owner and proprietor of the business in Bogalusa known as the W. F. Simmons Auto Company, alleging himself to be the holder and the owner of notes, to secure which the insurance was taken out, intervened in the suit and prays that the amount due on the' policy be paid to him.

Defendant, answering the demand of the plaintiff, denies liability, and alleges that plaintiff obtained the policy by fraud and misrepresentation. That certain facts, warranted in the policy to be true, were false and untrue, and that the policy is not enforceable on said account. It prays that plaintiff’s demand be rejected.

Answering the intervention of Simmons, it reiterates its charges made against the plaintiff; alleges that Simmons was Reed’s agent in making the misrepresentations and in procuring the insurance, and prays that his demand be rejected.

The lower court rendered judgment in favor of plaintiff and intervener for $500 with interest, and for $150 as attorney’s fees, but rejected plaintiff’s demand for1 25 per cent damages. Defendant appealed.

Plaintiff and intervener, answering the appeal, pray that the judgment be amended so as to allow the 25 per cent damages claimed by them; that the judgment be otherwise affirmed.

The defendant filed an exception of no cause or right of action, and also one of nonjoinder. The exception of no cause or right of action was overruled, but that ■ of nonjoinder resulted in an order from , the court that Washington Bank & Trust Company he made a party to the suit.

Washington Bank & Trust Company assigned to Simmons, twelve notes, to secure which the policy-in question had been procured, subrogating him to all its rights against the defendant.

The defendant attacked this subrogation as being null and void, but its attack, not having been acted on in the lower court, is not before us on appeal. It also alleged that Simmons had attempted to appear in court in his trade name of Simmons. Auto Company, and urged that a party could not plead nor act under a trade-name. We construe a statement which we find in defendant’s brief, however, to mean that it does not insist on these exceptions, and that same may be regarded as abandoned. We have, therefore, taken into account only the merits of the case.

Defendant alleges that plaintiff represent-' ed that the car was a 1927 model, when it was in fact a 1925 model. The policy states that, it is to be void if the insured has concealed or misrepresented any material fact or circumstance concerning the insurance or the subject, thereof. Misrepresentation of the model is, under the policy, a breach of warranty.

The evidence shows, that the' car is a 1925 model. The plaintiff, seemingly, apprehensive that the policy might be attacked on this ground, alleges (we abbreviate but do not otherwise change his averment): “That he authorized W. F. Simmons to procure this insurance; * * * ■ and the said W. F. Simmons gave to S. Lacey Dickerson, the agent of the defendant company, the serial and motor number of the automobile and asked him to write the policy, and the said Dickerson had on his desk, and referred to, a little book from which he secured the model of the car and the year of its manufacture; that petitioner did not himself know the year in which the car had been manufactured, and made no representations to defendant’s agent on the subject, but exhibited the car itself,’’ etc.

According to Mr. Reed, he bought the car from Simmons for $675, paying $175 in cash and executed twelve notes, amounting in the aggregate to $500, representing the balance of the purchase price. That under agreement with Simmons, the car was insured to protect the notes. That Simmons and himself went into Washington Bank & Trust Company to have the notes fixed up, and met Dickerson while in the bank; that Simmons asked him if it would be satisfactory to give Dickerson the insurance; that he assented; that they (meaning Simmons and himself) had the car "standing outside the bank; that Mr. Dickerson looked at it, and then went down to his office and fixed up the insurance; that he had a bill of sale of the car, which Mr. Dickerson saw, and made on it a notation, “fire and theft only.” The document in question was produced; it is in fact not a bill of sale, but an invoice, made out with lead pencil. The memoranda which the witness mentioned is on it, and appears to have been written by a different hand than the one by which the invoice was made out. The invoice referred to as a bill of sale shows the price of the car in the sale from Simmons to Reed, its motor and serial number, but does not state the model. Further testifying, he says, that Mr. Dickerson asked him no question concerning the model of the car, and did not in his presence or hearing ask Mr. Simmons any question concerning the same. That he authorized Mr. Simmons to procure the insurance; that Simmons in doing so acted as his. agent; that Simmons and Mr. Dickerson left the bank together; that he remained until they were gone; he did not know what representations Simmons made to Dickerson after they left the bank; that Dickerson did not get the information for writing the policy by an examination of the automobile, but relied upon the information given him by Simmons; that the policy was not delivered to him, but was sent by Dickerson direct to the Washington Bank & Trust Company, to which the loss was made payable.

According to Simmons, he and Reed went into the bank together to have the notes drawn up that were to be given him for the credit price of the car. Dickerson came in, upon which he suggested to Reed that the insurance be given Dickerson, to which Reed assented; that he then handed Dickerson the bill of sale. This paper called a bill of sale is in fact an invoice. He says that it contained the information Dickerson wanted in order to make out the policy. That Dickerson made a notation; that Dickerson and himself then left the bank, Reed not going with them; that he (Simmons) did not go to Dickerson’s office; that Dickerson made the policy payable to and mailed it direct to the bank; that he never represented the model of the car to anybody; that the model was never mentioned in the conversation between him and Dickerson.

Simmons and Reed, however, are not in accord on the question of agency. Simmons says he was not Reed’s agent in procuring the insurance; that he merely suggested to Reed that he give it to Mr. Dickerson, and that Reed assented.

Mr. Simmons, further questioned, says:

“Q. You did not give him any information?
“A. He asked Mr. Reed where he lived and where he was working; and I had given Mr. Reed the bill of sale. Mr. Reed handed Mr. Dickerson the bill of sale, and Mr. Dickerson asked Mr. Reed what kind of insurance he wanted. Mr. Reed said, ‘Fire and theft’; and Mr. Dickerson put the bill of sale in his pocket.”

Dickerson says:

“I happened to meet W. F. Simmons in the Washington Bank and Trust Company, and he gave me a memorandum, of the car number, motor number, and I asked him the year model, and I issued the policy for Jesse Reed, and I never saw Jesse Reed until after the loss occurred.”

Further questioned, he again said that he had a conversation with Simmons in the Washington Bank & Trust Company; that if Reed was present, he did not know it, and did not see him; that no one except Simmons discussed the policy with him prior to the alleged theft; that a memorandum was given him by Simmons in the Washington Bank & Trust Company, and he issued the policy based thereon; that he never saw the car at any time; that Simmons while in the bank, at his request, gave him the model of-the car.

“Q. What was the model of the car he gave you? What year?
“A. 1927, as I remember. Whatever was in the policy.
“Q. Did you have any means of knowing what the model of that car was?
“A. No, sir. Nothing except Mr. Simmons’ word for it—
“Q. Did you, ever see this alleged bill of sale which contains -the motor and serial numbers of the car?
“A. I possibly have. I am not sure; but I got my memoranda from Mr. Simmons. I do not know if this is the original bill of sale.
“Q. Did you get that bill of sale from Mr. Reed?
“A. 'Mr. Simmons.” ,

He was shown the bill of sale which, as stated, is an invoice, and then asked:

“Q. Is the handwriting in the circle on the bill of sale yours?
“A. No, sir.”

He further states that Simmons gave him a memorandum in writing containing the-model of the car; asked to produce it, and he answered:

“It may be in my old office. I don’t know whether it is* or not.”

No memoranda of any kind was produced by him. The only memoranda produced was the invoice produced by Reed and Simmons with the memorandum on it in lead pencil. It seems likely from this that the memorandum which Dickerson received was this invoice, which shows the price that Reed had paid and was to pay for the car, its serial and motor number, but says nothing about the model.

The authentic act of sale conveying the car from Simmons to Reed' is a printed form. Before it was used it had blank spaces left in it for the motor and serial number and the model. The blanks for the serial and motor number were filled up, but the space in which the model was to have been stated was left blank. It would seem from this that the authentic act was likely passed upon the information contained in the invoice produced by Reed and Simmons.

Dickerson thought he wrote the policy the same day he had the conversation with Simmons in the bank. The invoice and the act of sale are both dated September 25, 1929; but the policy was not issued until September 28, 1929.

He who contends that he is exonerated must prove the payment -or the fact which has produced the extinction of the obligation. Civil Code, art. 2232. The defendant cites us cases holding that the misrepresentation of the model of a car is justifiable grounds for refusing payment of a policy; but the question presently in hand does not depend on authorities, but on the credibility of witnesses and the preponderance of proof. According to Messrs. Reed and Simmons, they did not furnish Mr. Dickerson with any information concerning the model of -the car. Dickerson is positive that Simmons furnished him the model appearing in the policy. The burden of proof is on the defendant to show misrepresentation on.the part of the insured. The preponderance of the proof is against the defendant in the matter of misrepresentation concerning the model. And in the matter of credibility we are unable to conclude that the plaintiff and intervener is any less credible than the agent that represented defendant in the matter of the insurance. We therefore decline to hold that the lower court erred in refusing to release the defendant on the ground that plaintiff had misrepresented the model of the car.

The next defense is. that the defendant is discharged because the car was not kept in a garage as the policy requires. The stipulation is that, “The automobile described is usually kept in private garage located on Huron Avenue, Bogalusa, La.”

This is a warranty, and the defendant urges that it was violated.

Reed testifies that on coming home from the Covington Fair, about midnight, on the night of October 20, 1929, he left the automobile in front of his house, and the next morning it was gone. His garage is close to, if not attached to, his residence. He explains his act in leaving the automobile on the street by saying “that it (meaning his garage) was so close to drive in, I left it out.”

It further appears that the transmission of the car could be locked. Reed says, “I had it locked, and the key was in my pocket.” Asked if he knew whether it was locked or not, his answer was, “I tried it and it did not shift.” He insists, that the car was locked, that he locked it. But if he had locked it, he should have had the key and produced it on the trial. Then, again, if the transmission had been locked, the car could not have been driven away unless the key was left in the lock. The policy, however,, did not require that the car be kept in the garage every night nor-that its transmission be kept locked when not in use. The word “usually,” as defined in standard dictionaries, is said to mean “commonly,” “customarily,” “ordinarily.” The language “usually kept in” does not mean that the automobile had to be kept in the garage all the time, nor was more care required in that respect at night than in the daytime. In a doubtful case the agreement is interpreted against him who has contracted the obligation. Civil Code, arts. 1957, 1958.

We do not feel justified in holding that the policy is. not enforceable on this account. The warranty of the policy on this subject is not shown to have been violated within the sense and meaning of the policy.

Defendant alleges that plaintiff did not render proper assistance in helping to recover the car.

The defense is:

“That plaintiff failed to assist your defendant in tracing and locating said automobile alleged to have been stolen, in that numbers of the license on said car were given as number 23-358 and 23-385; that your defendant investigated said license numbers, and neither of them were taken out in the name of plaintiff or covered said car.”

The plaintiff furnished defendant, as the license number, one of the numbers mentioned. It was investigated and found to be incorrect. He then furnished the other number above mentioned, and it was investigated, and was found to be incorrect.

Reed testified that the car had on it, when stolen, the same license that was on it when he bought it from Simmons. He obtained from Simmons the same license number he furnished the defendant.

Simmons, questioned at length on the subject, says that he bought the car from H. A. Testard. That he first sold it to a man named Greenburg, who returned it; that he then sold it to a man living near Bogalusa, whose name he could not remember, keeping no record of this sale. This man, he says, paid a small price, for which he gave him a receipt; that the man kept the car' about a month and bought a license for it, then returned it. That he knew this man’s uncle; that the uncle lived in Bogalusa. Asked the uncle’s name, he had forgotten the name of the uncle. After this man returned the car, he sold it to Reed for $675, from whom he claims to have exacted $175 cash and took notes amounting to $500 representing the balance of the purchase price; that the insurance, the subject of this suit, was taken out in order .to protect these notes. In ease of recovery, the amount recovered goes to Simmons.

The facts in the case of Mrs. Nell Perry v. Fidelity & Guaranty Fire Corp., 17 La. App. 563, 136 So. 755, This day decided, in which a similar situation exists, and defendant’s contention in that case have been kept in mind.

The policy stipulation on the subject of co-operation is as follows:

“In the event of loss, and whenever requested by the defendant, assured shall assist in the recovery of the property insured hereunder, by means of replevin proceedings or otherwise; in effecting settlement, securing evidence, obtaining the attendance of witnesses and prosecuting suits to such an extent and in such manner as is deemed desirable by the Company; and this Company shall reimburse the assured for any expenses incurred at its request.”

The co-operation required by the policy does not consist in furnishing the insurer with the license number of the car in case it is stolen. The co-operátion required concerns other matters.

Consequently, assured’s failure to furnish the correct license number is not a ground for holding that plaintiff’s failure in that respect constituted a breach of the policy.

Defendant finally alleges that the terms of the policy were violated, in that no proof of loss was filed with defendant within sixty days after said alleged loss, as provided in the policy, which fact estops plaintiff and intervener from claiming any damages under the terms of the policy.

The plaintiff alleges, that on or before October 25, 1929, he and W. F. Simmons made demand on the defendant for blanks upon which to make proof of loss and furnished .the defendant with all the data required in the ordinary proof of loss; that the company refused to give them blanks on which to make proof of loss until they arrived at an amicable settlement; that more than sixty days had elapsed since making said demand.

The evidence shows that this demand was made within two or three days after the loss of the car. It is sufficient to find in the record proof of loss made out in due form, dated October 22, 1929.

Under the law, Act 59 of 1921, sec. 3, defendant’s failure to furnish blanks for proof, of loss when requested by the plaintiff, and to pay .the loss within sixty days thereafter, renders the insurance company liable to the statutory damages, provided for in. that act, and at the same time creates a statutory right in the assured to demand the same. This defense, therefore, cannot prevail.

The judgment appealed from, to the extent that plaintiff’s demand for 25 per cent damages under the Act 59 of 1921, sec. 3, was refused, is erroneous.. In all other respects it is correct.

The judgment appealed from is therefore annulled, avoided, and set aside to the extent that plaintiff’s demand for 25 per cent damages is refused; and it is now ordered, adjudged, and decreed that plaintiff, Jesse Reed, have and recover judgment against Fidelity and Guaranty Fire Corporation of Baltimore, Md., for 25 per cent damages as provided in Act 59 of 1921, see. 3; that the judgment herein appealed from in all other respects be affirmed.

Defendant-appellant to pay costs of both courts.

LeBLANC, J.

(dissenting). In this case I agree with the majority opinion in all points except as .to the alleged breach of warranty, regarding the description of the automobile. The opinion concedes that the age of the car is misstated in the policy. It holds, however, that there was no misrepresentation on .the part of Simmons, who acted as plaintiff’s agent, as he did not supply the information regarding the age of the automobile. If Simmons did not give that information as the agent testifies he did, I am at a loss .to know from what source it was derived. Simmons’ testimony in my opinion is not any more worthy of belief than Dickerson’s, the insurance agent.

The circumstances, I believe, favor Dickerson on this point, and for these reasons I respectfully dissent.


text:
    No. 852
    First Circuit
    THOMAN v. DELIBERTO
    (October 7, 1931. Opinion and Decree.)
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellant.
    Ellis, Ellis & Ellis, of Amite, attorneys for defendant, appellee.
   MOUTON, J.

Vincent Deliberto was di’iving a truck belonging to his father, defendant, southward on Cherry street in Hammond, which crosses East Charles street running east and west.

Thoman, plaintiff, was driving a car on East Charles street, eastward.

A collision occurred between the car ánd the truck in the intersection of the two streets, south of the center.

Plaintiff is suing defendant for personal injuries and damages to his car suffered in the collision.

Judgment was rendered rejecting his demand, from which he appeals.

Plaintiff testifies that he first saw the truck when he was about ten feet from the intersection and was then traveling between twelve and fifteen miles an hour. At that time, he says, the truck was fifteen or twenty feet from the crossing and was going between thirty-five and forty miles an hour.

As neither street was a right of way street, plaintiff should not have attempted to cross the intersection in the pathway of a truck going at that speed, and at that time fifteen or .twenty feet from the northern line of the intersection. He was traveling, he says, at about twelve or fifteen miles an hour, and should have immediately realized that he could not negotiate the crossing in time to avert an accident. In venturing to go across in the face of such imminent danger, when he could easily have stopped his ear which he testifies was moving at the slow speed to which we have referred, plaintiff failed co exercise the ordinary care which the situation demanded, and was .therefore at fault when he drove into the intersection.

We shall not, however, base our finding on that issue, but will pass to the dominant question in the case, which is as to which of the two vehicles first entered the intersection, as it is well settled that the one which enters first has the right to proceed across whether the street he enters is a right of way street or not.

Plaintiff swears he entered first. Vincent Deliber.to, driver of the truck, says he had almost passed the center of the crossing when plaintiff’s car ran into the back wheel of the truck. In that statement he is corroborated by Mitchel, a negro, who was sitting in .the cab of the truck on Deliberto’s right, and by Herbert, another colored boy, who was sitting between them. According to the testimony of these three witnesses the truck entered the intersection first. All three say also that when the truck reached the crossing it was going at about fifteen miles an hour, in that respect flatly contradicting the evidence of the plaintiff, which was to the effect that it was. then traveling some thirty-five or forty miles an hour.

Another witness, Sugar Gorman, colored, says he was at the corner of East Charles and North Cherry streets when the accident occurred. His testimony is likewise that the truck had about passed the center of the intersection when the car ran into its back wheel. Accoiding to his testimony, the truck entered the crossing first.

Mr. Finn, witness for plaintiff, who did not see the collision but heard the crash and came up. to .the scene of the wreck immediately after its occurrence, says lie did not see Sugar Gorman around there at the time. It appears, that Mr. Finn saw plaintiff drop on the ground after the collision and went to his rescue. No doubt he was under some excitement, was looking towards assisting plaintiff, and gave little attention in reference to the presence of any one else at the time. The fact is he said there was one negro in the truck while the proof unquestionably shows that there were two. This shows that, in the excitement which usually occurs at incidents of this character, those present and proffering assistance may overlook the presence of others.

In testifying as. to those who were present, plaintiff says also that, besides Mr. Finn, a negro boy, and Deliberto in the truck, there was no other soul at the scene. Plaintiff and Finn were therefore both mistaken in that respect, as it is certain there was another negro in the truck.

This shows, how easily the presence of a party may escape the notice of persons caught in a wreck, or who are suddenly assisting others in emergencies of that character.

The judge below, we presume, believed the account given of the occurrence by Gorman, and we have been unable to find in the facts and circumstances of the case any evidence that could lead us. to a contrary conclusion. Even if we were to disregard his testimony, we would still be confronted with testimony of Vincent Deliberto, driver of the truck, and the two negro boys who were sitting next to him who testified that the truck was in the intersection when the car entered.

Counsel for plaintiff refers to certain discrepancies in the testimony of these three witnesses. In most all cases of sudden emergencies there is seldom perfect harmony in the testimony of those who happen to see the accident, due usually to the different positions occupied by the witnesses at the time. Here, for instance, Deliberto says he looked to his right and left when he got to the crossing, and did not see plaintiff’s car, which it is shown was. coming from the west. Mitchel says he saw it just hefore it reached the west line of the crossing. This can be explained by .the fact that he was sitting on the right of Deliberto, the driver, and was in a better position to see the auto which was advancing next to him in its course eastward.

Herbert, who> was sitting between Deliberto and Mitchel, says ne did not see plaintiff’s car until it struck the truck or immediately -thereafter.

The different positions which these witnesses occupied in the cab of the truck account for the fact that they did not all see exactly alike as to what then occurred. These unimportant variations in their testimony show, however, that there had been no understanding between them to give a concocted _ story of the collision for the benefit of ithe defendant.

Here we have only one witness testifying he entered the crossing first. On this fact, the pivotal issue, four for defendant testify he had entered first. True, the absolute teat of the probative value of testimony does not depend on the number of witnesses, a fact, however, which is entitled to some consideration in the determination of a case. Although we recognize that such is not an absolute test, where, as in this case, there are no facts or circumstances destroying the value of the testimony "of such witnesses, and the lower court has given credence thereto, the appellate court, which does, not know the witnesses and is deprived of the advantage of seeing and hearing them testify, will not interfere in the exercise of its appellate jurisdiction with the finding below and indulge in the reversal of a judgment grounded on a question of fact, which is the case here.

The judgment is therefore affirmed.


author: LeBLANC, J.

text:
    No. 851
    First Circuit
    BARDWELL v. PICKWICK GREYHOUND LINES, INC.
    (October 7, 1931. Opinion and Decree.)
    F. Otway Denny, of Hammond, attorney for plaintiff, appellee.
    B. & M. Purser, of Amite, attorneys for defendant, appellant.
   LeBLANC, J.

Plaintiff, driver . of . a school transfer, sues the defendant bus. line for damages for personal injuries and also to his school bus, arising out of a collision which occurred on the highway between Hammond and' Covington, on December 10, 1929.

In his pleadings, he avers in effect that on the date mentioned, at about 8 o'clock in the morning, he was conveying a number of children to school; that he was driving south along a side road known as the Dalton Well road which intersects, with the HammondrCovington highway,' which runs east and west; that, on reaching the intersection, he came to a stop before entering same; that, after he had turned into the highway and gone into the direction of Covington, which is east, some 75 or 80 feet, he was run into by one of the passenger busses of the defendant company, with the resulting damages and injuries for which he seeks to recover. His claim is for a total of $300, and, as the items do not seem to be disputed, it will be unnecessary to have to refer to them. He charges the driver of the bus with negligence in operating it at a careless, negligent, and excessive rate of speed.

The defendant’s answer is practically a denial of all the allegations of plaintiff’s petition and an averment to the effect that the damages suffered by him were caused solely and entirely by.his own fault and gross negligence. The answer also contains, a reeonventional demand for damages to the bus in the sum of $150 and for a reimbursement of various sums which it alleges it had paid several of the children who were in the school bus at the time of the accident. These payments, are itemized, and they amount .to $959.20.

, Prom a judgment in favor of the plaintiff for the full amount he demanded and rejecting its reconventional demand, the defendant has appealed.

The morning of the accident was very-foggy; the road being hardly perceptible at a distance of more than 50 yards ahead; .that of itself was a condition which required more than ordinary prudence on the part of an automobile- driver. That the plaintiff was observing that care seems to be borne out by the fact, as appears from the testimony which is not contradicted, that he came to a full stop before entering the intersection of the Dalton Well road with, the Covington-Hammond highway, and also that, as his bus took its course on the highway, in an easterly direction, he drove it at a very moderate rate of speed.

The passenger bus was traveling westward, and therefore in the opposite direction to that in which the school bus was going. Not long before the accident it had passed a log truck' on the road, and as it neared the intersection of the Dalton Well road another such truck loomed" in front of it.

The ^plaintiff charges that it was the bus driver’s attempt to pass this last truck without looking to seé if the road was clear ahead of him -that caused the accident. On seeing the school bus, he realized that he could not pass ahead of the log truck, but it was too late for him to fall back of it again. In trying to swerve the bus around again, the rear end collided with the .left front- side of .the school bus, causing the damage complained of. He also charges the bus driver with driving too fast under the atmospheric conditions that existed at the moment.

The bus driver. contends ‘that -the collision occurred at or very near the intersection of the two roads, and that defendant ran into him because he did not take the necessary driving precaution in entering the main highway. He further maintains that he never intended to pass ahead of the log truck until after .they would both have passed the intersection. The course of instruction which they take for six weeks before driving a passenger bus, he says, teaches .them not to pass any vehicle at an intersection.

The only witness, to the accident besides the drivers of the two vehicles was a man named Martin Thomas who works at a store situated just east of the intersection of the Dalton Well road with the main road, and about 30 feet from the center of the main road which it faces. He testifies that the collision occurred in front of him,, and that he saw it all. He even saw the plaintiff’s school bus as it emerged from the side road, and says that it came to a full stop before entering the intersection. That the .collision did not .take place at the intersection is borne out by his testimony; otherwise it would not have happened in front of him. His. testimony, moreover, is clear and positive on the point that the driver of the passenger bus had attempted to get ahead of the log truck in front of him, and, . on realizing that he could not do so, swerved back from the left to the right of the road, and in so doing struck the trailer of the log truck and the front end of the school bus which at the time occupied about the center of the highway. The testimony of this witness. produces a preponderance of the evidence in favor of the plaintiff.

The act of the passenger bus driver in attempting to pass the log truck without properly looking ahead for a clearance in which to safely pass was, in our opinion, the proximate cause of the accident. Besides constituting negligence on his part in failing to observe the usual and ordinary care required of him under the circumstances, it was a violation of one of the provisions of the state statute regulating the operation of motor vehicles of the highway. Section 15 (a) of Act 296 of 1928 requires of a driver that he “shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless, such left side is clearly visible and is free of on-coming traffic for a sufficient distance ahead to permit such overtaking and passing tq be made in safety.”

The heavy fog of the morning which no doubt impaired his visibility imposed a stricter degree of care on this bus driver in this respect, and he was. correctly held at fault for the accident.

The ground on which we hold this defendant liable makes it unnecessary for us .to comment on the case of Martens v. Pen-ton, 15 La. App. 35, 130 So. 354, to which we are referred by counsel for defendant as authority for the reason that the accident in that case was strictly an intersectional one, and did not involve the question of an automobile attempting to overtake a vehicle traveling ahead of it.

The judgment of the lower court, being without any manifest error as we are able to find, is affirmed.


text:
    No. 834
    First Circuit
    LEWIS v. LAKE CHARLES STEVEDORES, INC.
    (June 30, 1931. Opinion and Decree.)

      C. Y. Pattison, of Lake Charles, attorney for plaintiff, appellant.
    Moss & Siess, of Lake Charles, attorneys for defendant, appellee.
   MOUTON, J.

In May, 1930, plaintiff, while unloading a railroad box car at the docks at Lake Charles, was injured by a piece of timber that fell on his head. He alleges his brain and skull were seriously injured, causing as a direct result, complete loss of his sense of taste and smell, stiffness of the neck, and the Toss of feeling in his left leg.

He alleges total disability to do work of any reasonable character as being the result of the foregoing alleged injuries. In case the court denied him compensation for total disability,’ he asks in the alternative compensation at $20 a week for •100 weeks on the ground that the usefulness of the physical function of taste and smell- has been seriously impaired.

He appeals from a judgment rejecting his demand.

Plaintiff testified that the blow he received knocked him unconscious. Two or three witnesses who were unloading the 'timber with him, saw when he was struck on the head, and all say that they immediately .thereafter talked with him, and that he was certainly not unconscious.

Dr. Kushner saw plaintiff on the day of the accident-and treated the wound. His testimony is that he suffered a lacerated scalp wound, about an inch long, that had just gone through the skin, had not affected the tissues underneath, was not gaping, and did not require stitching.

An injury of that character is not likely to seriously affect a man’s brain and skull, which plaintiff alleges he suffered as a result of the blow. The fact is, that there is no evidence that he was so affected. There was certainly no fracture of his skull, which is shown by the x-ray examination of his head; also by the testi mony of the physicians. Where there has been no ■ fracture qf the skull the clear preponderance of the expert testimony shows that there will be no loss of the sense of smell and taste.

Dr. Goldsmith, expert witness for plaintiff, was asked when the injury received did not fracture the skull whether it could affect the sense of taste and smell. He answered: “It is possible.” Was then asked: “Is it likely?” To which he said: “There is a possibility which is not so probable.” Even according to the testimony of Dr. Goldsmith .such a loss did not fall within the range of probabilities.

Plaintiff testified that since the injury he had lost his sense of taste and smell, and some tests were made for the purpose of ascertaining his condition in that respect. The majority of the experts, including Dr. Goldsmith, testified that tests to ascertain as to whether there is a loss of the sense of taste and smell are purely subjective, and that the party testing must rely on the patient for information.

In testifying on this subject, Dr. Holcombe said: “If he has a total absence of smell and taste lie is without a parallel in any traumatism I have ever seen, because he would have to have an injury on both sides of his brain, on the back of his brain and the front of his brain.”

There was no such injury in this case and it is impossible to conclude from the evidence of the expert testimony, and the nature of the wound plaintiff suffered, to say if he really had no sense of taste or smell and that if he suffered therewith, it had any causal connection with the blow on his head. No such conclusion can be reached from an examination of the evidence.

Plaintiff claims that he suffered a wry neck, also the loss of feeling in his left leg, as a result of the accident.

It was shown by Dr. Kushner and a number of employees at the docks where plaintiff was working, that prior to the accident he always carried his head on the side, the same as he did thereafter.

• Dr. Bordelon, expert witness for plaintiff, said that there are many causes bringing about a stiff neck, due, he said, sometimes to congenital deformity, occupational work, etc.

. Dr. Watkins said that - it might be the result of chronic prostrate gland or bad tonsils. Such a trouble as appears from the expert evidence might be the result of various causes.

As it appears that plaintiff had a wry neck before he received the blow, it would be reasonable to infer that it might have been a congenital deformity or had. been the result of one of the many causes which the physicians said may bring about such a trouble. It would certainly be illogical to say with legal certainty that the accident was the real cause of plaintiff’s wry neck.

Drs. Bordelon and Goldsmith pricked his left leg with a needle or pin, and say he showed no muscular reaction or apparent sensations of pain. Dr. Goldsmith said it would take a. man of iron courage to stand that test without manifesting sensations of pain. Dr. Kushner says a person can, if he makes up his mind, withstand such a test with a small needle.

Dr. Watkins made a test with a pin. His testimony is that plaintiff said he felt it; also, that he did not feel as well in the left as he did in the right leg.

This Question is left much in doubt by the evidence, and leaves still more in doubt the issue as to whether the condition of plaintiff’s leg, if it had lost all sensibility as contended for by plaintiff, was, as alleged by him, the result of the injury he suffered.

It is impossible to say from the evidence in this record what is the cause or causes which brought about the troubles of which plaintiff complains. There is a possibility or a probability that these troubles were the result of the accident but that is not sufficient to sustain plaintiff’s demand. He should have established that fact with legal certainty to entitle him to recover. Having failed to do so his demand was correctly rejected.


text:
    No. 844
    First Circuit
    HEBERT v. CULLOM
    (October 7, 1931. Opinion and Decree.)
    S. S. Reid, of Amite, attorney for plaintiff, appellee.
    J. H. Inman, of Ponchatoula, attorney for defendant, appellant.
   LeBLANC, J.

This case presents a clear issue of fact which the trial court decided in favor of the plaintiff, and the defendant has appealed.

The suit grows out of an automobile accident which occurred in a settlement known as Wadesboro in the Seventh ward of Tangipahoa parish. Plaintiff was driving southward on the highway and was rounding a curve which led into another road running east and west. The defendant’s car was being driven west on the east and west road, by his minor son Carl Cullom, who lived with him. Plaintiff charges that defendant’s son was driving on the left-hand side of the highway, at a speed of not less than fifty miles per hour, and that he failed and refused to turn to the right when he met him, continuing to go at the same high rate of, speed and struck his automobile on the left-hand side near the front, causing damage to the extent of $139.93 which he had to pay in order to have it repaired. In addition to this amount, he also demands the sum of $1 per day for the. loss of the use of his car during the 37 days it was being repaired. His total claim therefore is for $176.93.

The defense is a denial of any negligence on the part of the driver of defendant’s. car and a charge of negligence on the part of plaintiff in having failed to bring his car to a full and safe stop before entering the intersection of the two roads. In a reconventional demand, the defendant asks for a judgment in the sum of $50 against plaintiff for damage to his automobile.

The testimony points .to the negligence and carelessness of the young man driving the defendant’s car.

The north and south road does' not completely intersect the east and west road at the point where the collision occurred. Traffic on the north and south road must either drive east or west after reaching the other road/ Plaintiff had already driven entirely across the east and west road when he was run into by defendant’s son. He testifies that when he first saw the other car coming it was approximately forty or fifty feet away from him. There is no issue about who entered the intersection first. When he saw the Cullom car coming on at such a fast rate of speed on the left-hand side of the road, he drove his car almost into the ditch on the south side of the east and west road, which was his right-hand side, and gave the other car ample room in which to pass; but' in spite of all his efforts to avoid a collision, defendant’s car never took to the right of the road, kept coming on its. left-hand side, and struck his car on the front door on the left side of the body. That there was plenty room for the defendant’s car to have passed to the right is shown by the testimony of Mr. Yanrankin, driver of a school truck, who says that after the accident he drove his truck over the road, and passed between the two cars, before either of them had been moved.

Defendant’s son did not testify and no explanation is offered why he did not. Plaintiff’s testimony as to the actual occurrence stands without any contradiction, and we have no reason to disbelieve it. Besides, other witnesses, without interest whatever in the matter, testified that following the accident, Carl Cullom, defendant’s son, stated in their presence that he was going fifty miles an hour, was looking at a suit of clothes belonging to his father, which was. hanging in the rear of the car, and that he saw the other automobile too late to avert the collision. One of these witnesses also testifies positively that after his son Carl had practically admitted he was in the wrong, his father, the defendant, told the plaintiff to have his car fixed and that he would pay for the repairs. It appears, also that he had two mechanics to make estimates of what these repairs would cost, and one of them, Mr. Prejean, says that after he had made his estimate, Mr. Cullom told him to do the work and he would pay the bill. Mr. Cullom, virtually admits that he so told Mr. Prejean as he wanted to avoid litigation, but later changed his mind as he became convinced that his son was not at fault. His counsel would have it appear that his offer to pay the repairs was in the nature of a compromise only by which he is not bound. ‘ In view of all the other testimony, however, we do not so regard it and consider it with the reported statements of his son. as a further admission of liability.

The preponderance of the evidence strongly favors the plaintiff in the case, and as there is no dispute about the amount, the judgment will stand affirmed as it is.


author: MOUTON, J. MOUTON, J.

text:
    No. 814
    First Circuit
    HOLLOWAY v. THE PURE OIL CO.
    (June 16, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused, Reasons Attached.)
    Robert R. Stone, of Lake Charles, attorney for plaintiff, appellee.

      McCoy, Moss & King, of Lake Charles, attorneys for defendant, appellant.
   MOUTON, J.

Alvin street runs -north and south through the city of Lake Charles; Ryan street east and west. Incline street enters Ryan street from the south a little east of the line where Alvin street intersects with Ryan street. Hence Incline street is to some extent a continuation of Alvin street to the south of Ryan street.

At about 8:30 o’clock on the night of January 7, 1930, a Ford car which plaintiff Holloway, was driving collided, at the intersection of the streets above named, with a load of drill pipes attached to a truck of defendant company driven .by Turner, one of its employees.

Plaintiff was severely injured by the collision and was given judgment for $3,000 against defendant company from which it appeals. Plaintiff is asking for an increase of $500, on the amount allowed.

Defendant denies any negligence whatsoever on its part, and also pleads contributory negligence.

In his opinion the district judge says:

“That defendant’s action in permitting its truck to be stopped on the south side of Ryan street, with a nine inch load of pipe extending from the truck across Ryan street, into Alvin street, on a rather dark, rainy night, without lights or other signals on the pipe, and at a place - where the pipe was invisible except from a very short distance, therefrom, was the grossest sort of negligence, and unquestionably caused the accident.”

The foregoing statement of the court, taken in connection with the plea of contributory negligence, presents the vital issue in the case.

The record shows that the total length from the bumper of the truck to the end of the pipes, at the time of the collision, was 56 feet. The width of Ryan street is 36 feet, and of Alvin street 35.10 feet.

Turner, driver of the truck, was driving southward in Alvin street, and says when he got to the point where that street intersects Ryan street he stopped to a standstill. He then observed, he testifies, a car coming on Ryan street from the east, then about a block away. At that time he says he started his truck again, driving slowly to go across Ryan street, and to make a safe turn as he was. going eastward towards Welsh, his point of destination. His •testimony is,- that the ear coming from the west on Ryan street, and which the record shows was plaintiff’s car, kept advancing or coming towards him without apparent check, and that he blew his horn, hollered, and that as he realized the car would run into, the pipes, he “stopped the truck dead still,” and says that the truck was not moving when plaintiff’s car ran into it. In answer to a question as to whether the truck at that time was headed east, he said, “Not exactly.” The proof is that, when the truck came to that dead stop, the end of the pipes was extended about 8 or 10 feet into Alvin street. This is easily accounted for by the fact that Ryan street is 36 feet wide, and the truck, with the trailer and pipes, was in all 56 feet long. As the end of the pipes was projected about 8 or 10 feet in Alvin street, necessarily there must have been a well-pronounced angle in the pipes that were connected to the truck by the tongue of the trailer. The proof shows, according to the witnesses for defendant that the trailer and the pipes were at about 12 or 14 feet from the northeastern corner of Alvin street; and; according to the evidence of plaintiff’s witnesses, at about 10 or 12 feet from that corner. It is shown that the width of the trailer from outside to outside of wheels was 11 feet and 3% inches. Accepting, for the purpose of this observation, that the trailer and the pipes were at the distance of 12 or 14 feet from the east edge of Alvin street, this fact shows that there must have been a considerable angle from the end of the truck, where the pipes were connected, therewith, and the end of these pipes which were projecting beyond the trailer into Alvin street. The curve or angle of the pipes began, no doubt, from the back of the truck where they must necessarily have been connected with a bolt or coupling pin, thus giving flexibility to the movement of the pipes which were trailing behind.

The witnesses that testified on the subject say that there was an angle between the truck and the pipes, more or less acute in their opinion. The facts to which we have referred, showing the relative positions of the truck and the end of the pipes, at the time, justify us to infer, independently of the testimony of these witnesses, that there was quite an angle or deflection between the end of the . pipes and the truck, starting in close proximity to the back of the truck.

Turner says he had a spotlight on the back of the cab about 2 feet 6 inches above the pipes, and that this light was thrown on the entire load for the benefit of the driver and traffic. No doubt when the trailer and pipes were following the truck on a straight' line the light was thrown along or over the load from the spotlight which was attached to the back of the cab. This was not, however, the situation existing at the time of the impact when the pi-pes were pointing in Alvin street in a northwesterly direction and the head of the truck was pointing eastward, if “not exactly” in that direction, as testified to by Turner. As. the truck and the pipes were then situated, the rays of light from that spotlight were falling south or west of the pipes and beginning at an extremely short distance from where the trailer, with the pipes, was connected through a coupling pin or revolving bolt attached to the truck.

Subsection b, of section 44, Act No. 296 of 1928, page 647, reads as follows:

“The draw bar or other connection between any two vehicles, one of which is ’ towing or drawing the other on a highway, shall not exceed fifteen feet in length from one vehicle to the other.
“Whenever such connection consists of a chain, rope or cable, there shall be displayed upon such connection a red flag or other signal or cloth not less than twelve inches both in length and width.”

The connecting drawbar in this case between the truck and trailer was 21 feet long, and therefore over the 15 feet mentioned in the first paragraph of the subsection, above reproduced, but this fact is of no importance, as -the length of the connection had nothing to do with the accident.

We must therefore direct our attention to the second paragraph of the subsection. Counsel for defendant call our attention to that part of the subsection which they say refers to the signals, therein provided for where the connection between the two vehicles consists “of a chain, rope or cable.” They contend that it is because of that character of a connection, so small in size that it could hardly be seen or that it would be practically invisible, that the statute requires a display thereon of a red flag1 or other signal.

In this case, the pipes that were being carried, were 9 inches in thickness. The connection therefore did not consist of a “chain, rope or cable,” and in size were much larger. Because of the difference in the size between the pipes, defendant was trailing and the size of a chain, rope, or cable, mentioned- in the statute, counsel say, that the defendant was not required to make the display of the signals, referred to in the statute. We do not think the law. attaches so much importance to the size of the connection between the vehicles as it does to the ■ question of easy detection or visibility.

The subsection says the signal on the connection consisting of a “rope, chain or cable,” must be a red flag or other signal or cloth not less than 12 inches both iñ length and width. There was no such signal as. a red flag or cloth on the pipes or connection between the trailer and truck in this case. We cannot say, and it is not shown if a cloth signal of the character mentioned would have afforded any protection at night when the collision occurred. The subsection, it will be noted, refers to the requirement of a red flag “or other signal” or cloth. The other signal, under the statute, evidently may be of another character. The evident purpose of the statute was therefore to require some signal displayed on the connection between the truck and trailer which would afford protection to travelers through the streets of our cities or highways of the state.

In the instant case, defendant was -trailing pipes which were of a dark or brownish color, and, under the requirement of a flag or “other signal,” referred to in the statute, defendant should have had a light on the pipes which formed the connection between the truck and trailer. The fact is that defendant company, in placing the spotlight back of the cab, was endeavoring to throw the light along and over the pipes it was carrying. That fixture failed to project its light, as intended when the turn was made in Ryan street towards the east, as hereinabove explained. It was the duty of defendant to so arrange its spotlight or other light that it would shine on the connection between the truck and trailer when it turned the corners of the streets or highways, thus creating an angle between the vehicles. In failing to so provide an effective signal, defendant company was guilty of gross and inexcusable negligence.

The next question is as. to whether or not plaintiff was guilty of contributory negligence, because, if he himself was guilty of any fault which contributed proximately to the 'accident, regardless of the negligence of defendant, he cannot recover. This principle is immune from debato.

Plaintiff, when the accident happened, was traveling westward on Ryan street. He testifies when about 150 or 200 feet from the scene of the collision he was going at a speed of about 16 to 18 miles an hour. It was then that he saw the lights of what he took for an ordinary automobile, and which was crossing to the south side of Ryan street. In order to let the car pass, plaintiff says he slowed down to about 10 or 12 miles an hour, and for the first time saw" the pipes when about 10 or 12 feet therefrom, and that it was too late then to stop.

Obviously, as he explains, he thought that it was an ordinary car that was crossing Ryan street, and certainly he' did not have the slightest reason to believe that it was a truck that was making the turn with a long string of- pipes behind it. Naturally he kept his eye on this truck, thinking it was an auto, and slowed his car to allow it to pass him on the south side of Ryan street. When about 10 or 12 feet from the pipes, he looked through his windshield and saw, for the first time, the pipes in his pathway, but at a time too late .to avoid the collision.

Testifying on this subject, plaintiff says:

“By that time I was looking through the Windshield and seen there was something in front of me . looks like pipe, then I decided -to turn; after deciding it was oil field pipe or some kind. I decided to turn into Alvin street, I found that way blocked and stepping on the brakes about the same time, the pipes were so close I didn’t know what to do, etc.”

The weather at the .time was cloudy or misty, as appears from a preponderance of the evidence. The pipes were dark and brownish in color, about 4 feet above the pavement; and could not be easily seen or were barely discernible under such conditions.

There was a street light of ordinary size at the southwest corner of Alvin and Ryan streets on the night of the accident, but the light it was giving did not make the load of pipes visible, as was. found by the district judge.

The fact is that Dr. "Holcombe came down Alvin street shortly after the collision, before the truck' had been removed, and, on account of the poor visibility of that corner light, came near running into the load of pipes before he saw it. Plaintiff coming on Ryan street from the east was certainly not in a better position than was Dr. Holcombe to see that load of pipes.. He is not chargeable with lack of attention or ordinary care because he failed to see the pipes before getting at the distance when he says he saw them for the first time.

Counsel for defendant contend that the brakes on plaintiff’s car were not in good condition; otherwise, by applying his brakes, as he claims he did, that he should have stopped his auto before running into the pipes.

Plaintiff swears that his brakes were effective, and says a week before the accident he had had brake linings put on. He says Mr. Fisher from New Orleans had tested the brakes, and, from the description given by him of the test, his brakes were not defective. Mr. Fisher was representing at the time the. surety company that held the risk on .the Pure Oil Company’s trucks.' He came to make an investigation as to whether this claim should be paid. From his testimony, it would seem that he made no examination of the brakes on plaintiff’s car. Other evidence was also given in reference to the brakes on plaintiff’s ear at the time of the accident. The lower court was inclined to believe that his brakes were in good condition at the time, and we find no reason to think otherwise.

The lower court, though of the opinion that the brakes were in good condition, said that whether they were or not was of no consequence in the case, as plaintiff did not see, and could not have seen, the pipes in time to stop his car so as to avert the accident.

In his testimony, plaintiff says that, when he realized that oil pipes were in his way, he decided to turn into Alvin street but found that the way there was blocked, and then says, “and stepping on the brakes about the same time, the pipes, were so close I didn’t know what to do.”

When he first saw the pipes, it must be remembered, he¡ was then at 10 or 12 feet from them. The pipes were so close, evidently he did not know what to do, as he testifies, i,nd about that time he stepped' on the brakes. He had then unquestionably moved on from the 10 or 12 feet when he first saw the pipes and when he applied the brakes, even if they were in good condition, it was then too late to keep his car from running into the pipes. The question in reference to the condition of the brakes was therefore of no importance in the solution of the issue.

Counsel for defendant company contend that plaintiff, after seeing the pipes, was at fault because he did not turn to his right and pass between the trailer, the end of the pipes, and .the northeastern corner of Alvin-street.

Mr. Young, who was trying to rush plaintiff to the hospital, says there was no room to pass his auto between the trailer, pipes, and the corner of that street, and that he had gone around the block. Mrs. young, Mr. Paukes, and Mrs. Nellie Carter, who were at the scene soon after the accident, all testify that there was not, in their opinion, enough room for the passage of an auto at the time between that corner and the pipes.

It was shown that an ambulance, which came up after plaintiff had gone to the hospital, passed safely between trailer, pipes, and corner of that street. Hence defendant contends that plaintiff could have passed there safely and was at fault because he did not.

- As before explained, this trailer and pipes across Ryan street, with the end of the pipes extending into Alvin street, had placed plaintiff in a perilous position when he attempted to cross Ryan street. Plaintiff was therefore confronted with a sudden and unexpected peril when he came in close proximity to this trailer and pipes. There were two hazards which suddenly presented themselves, .and which were created by the fault of defendant’s employee. Plaintiff, in order to avoid injury or disaster, had to choose between the two hazards by either applying his brakes or to turn to his right and attempt to pass between the trailer, pipes,, and the corner of Alvin street. In such a situation a person is not expected to exercise his full judgment and his reasoning faculties. If he exercises, as we had occasion to say in Pope v. Locascio, 13 La. App. 304, 126 So. 727, 729, “the care and caution in an emergency (of that character) which an ordinary prudent person would have exercised under similar circumstances, he is not negligent because he fails to exercise the best judgment.” Navailles v. Dielmann, 124 La. 421, 50 So. 449, 134 Am. St. Rep. 508; Weinfield v. Yellow Cab Co., 10 La. App. 316, 120 So. 420.

If one, under such circumstances, is compelled to choose instantly between two hazards, he will not be guilty of contributory negligence, although the one he selects results in injury, as was stated by us in that ease.

In the instant case, if plaintiff made an error in stepping on the gas instead of attempting to go by Alvin street when confronted with the peril ahead of him, he cannot be charged with contributory negligence.

Plaintiff received injuries of a very serious character, and which to a certain extent will affect him in the future. It is unnecessary for us to describe the injuries he suffered for which the court gave him damages for $3,000, which we find to be a fair and just allowance, calling neither for an increase or decrease.

ON APPLICATION FOR REHEARING

MOUTON, J.

In this case we are favored by a written - opinion of the trial judge which passes on all the questions of law and fact presented by counsel.

In the course of the opinion, the court took occasion to say as follows:

“Counsel for both sides requested the Court to view the scene of the accident at night, and to test the visibility of a truck load of pipe of identically the same kind and dimensions as that which was in the collision, and this was done. Frankly, before the demonstration, I was of the opinion, notwithstanding the testimony referred to in the preceding paragraph, that the plaintiff should have seen the pipe in time to stop. The demonstration convinced me, however, that because of the poor visibility of the pipe, any ordinary person would likely drive into it as did the plaintiff on the night of the accident.” '

The scene of the accident was not reenacted for our benefit, but, after a most careful study of this record, we are unable to find any error in the conclusion of fact reached below on this, the most vital issue in the case, as expressed in the foregoing quotation.

In our original opinion, we said it was-shown that the trailer and pipes were across Ryan street with the end of the pipes extending into Alvin street, which had placed plaintiff in a perilous position when he attempted to cross Ryan street.

Continuing, we said:

“Plaintiff was therefore confronted with a sudden and unexpected peril when he came in close proximity to this trailer and pipes. There were two hazards which suddenly presented themselves, and which were created by the fault of defendant’s employee. Plaintiff, in order to avoid injury or disaster, had to choose between the two hazards by either applying his. brakes or to turn to his right and attempt to pass between the trailer, pipes., and the corner of Alvin street. * * * If one, under such circumstances, is compelled to choose instantly between two hazards, he will not be guilty of contributory negligence, although the one he selects results in injury.”

Counsel for applicant says:

“We believe we are correct in assuming that the Court did not intend to say that the plaintiff was confronted with two hazards.”

In 45 Cyc. 963 et al., cited in Weinfield v. Yellow Cab Company, Inc., 10 La. App. page 316, 120 So. 420, 422, body of decision, we find the following:

“So also where by the negligence of another, one is compelled to choose instantly between two hazards he will not be guilty of contributory negligence, although the one he selects results in injury and he might have escaped had he chosen the other, or had he done nothing at all.”

The language used in our opinion, on this subject, is almost identical with the words reproduced from the foregoing excerpt. If there be any inaccuracy in the language employed by us, credit for it must be given to the above excerpt from Cyc., almost literally followed in our original opinion. The only difference existing between what we said and what is stated in that excerpt is, that when a party is placed in such a perilous situation by the negligence of another, in the event that he has “done nothing at all,” he cannot he held for contributory negligence. In the instant case, plaintiff took a chance by stepping on the brake to stop his auto but without avail. It cannot be- held that he was at fault, and could not have been so held, even if he had “done nothing at all.” If plaintiff made a mistake in stepping on the brake instead of attempting to go around the pipes by Alvin street, and failed to exercise the “best judgment,” under the circumstances, he cannot, as was originally stated by us, be held to have been at fault or negligent.

In this, case the truck and trailer wore connected by pipes 'nine inches in thickness, which, as explained in our original opinion, were brownish in color, and were invisible at .the time of the accident to plaintiff, situated as he was.

Counsel, in discussing this subject, says the statute referred to (Act No. 296, of .1928, sec. 44 (b)), reads as follows:

“Whenever such connection consists of a chain, rope or cable, there shall be displayed upon such connection a red flag or other signal or cloth not less than ■twelve inches both in length and width.”

As the connection in the instant case' did not consist of a chain, rope, or cable, counsel contends that defendant company was not required to have a signal on the pipes. The record shows that defendant had placed a light at the rear of the cab, and counsel argues very strenuously that it streamed along the pipes, which should have been seen by plaintiff in time to avert the accident. We found, as stated in our original opinion, that the light back of the cab fell south or west of the pipes, and which were not visible to plaintiff. In the application for the rehearing, counsel now contends that the'use of the light at .the rear of the cab was not required by the statute.

This argument leads to the conclusion that in this case, if defendant’s cab had been connected with the trailer by only one pipe, however small in size, and although of color, black, no signal or light would have been necessary on that pipe for protection to the traveling public, because not specifically required under the provisions of the statute. One pipe of the color stated between two vehicles at night would be practically invisible under almost all conditions, without a light placed on it. Without such a signal at night, traveling over the streets of a city of the size of Lake Charles, where • there is constant traffic, would be in total disregard of the dictates of common prudence and ordinary care. A party so traveling would be guilty of the grossest negligence.

Although the statute does not specifically provide that a light or signal be used where a pipe or link of such character connects two vehicles, it is demanded by the general rules of law for protection against palpable and inexcusable negligence. Here, it is true, the cab and trailer were linked, not by one pipe, color, black, referred to above merely for illustration, but'were connected by several pipes. They were brownish in color, but were, however, not visible to plaintiff before he ran into them, and in time to avoid the collision. The danger lurked in their invisibility, and, though there were several pipes, a light should have been placed on them or used in such a way that they might have been visible to .those traveling on the streets in autos or similar vehicles. The light being behind the cab afforded no such protection, the defendant was at fault, guilty of gross and inexcusable negligence, for which it was properly held in damages.


text:
    No. 804
    First Circuit
    CLOUD v. INDUSTRIAL LBR. CO.
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.) (Reasons Attached.)
    (October 6, 1931. Writ of Certiorari and Review- Refused by Supreme Court.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   MOUTON, J.

In this case counsel for appellant has made no appearance by brief or oral argument to point out any grounds of complaint. In such cases the judgment of the district court will be affirmed on the presumption of its correctness where it is apparently sustained by the record. Traders Securities Co. v. Heartfield Allen Drug Co., 8 La. App. 518; Succession of Suner, 5 La. App. 121; Schwan v. Peterman, 123 La. 726, 49 So. 486; Saenger-Ehrlich Enterprise, Inc., v. Stephens, 10 La. App. 188, 120 So. 778.

In this case, which presents questions of fact, we have, however, gone carefully over the evidence and find that the written opinion of the district judge is fully supported by the record, and have discovered no error to warrant a reversal.

ON APPLICATION FOR A REHEARING-

MOUTON, J.

The judgment of the district court was affirmed by us on the presumption of its correctness, no brief having, at that time, been filed in this court for plaintiff. Since the affirmance of the judgment, the brief which had been delayed through no fault of counsel for plaintiff, has been filed herein.

In our original examination of the case we had gone over the evidence as was stated in our original opinion and we have again gone over this record with the assistance of the brief of counsel for plaintiff.

While cutting timber for defendant company about July 28, 1928, plaintiff was struck on the left eye by a piece of flying knot or limb of a tree. By the effect of the blow he lost that eye completely and was paid compensation for 102 weeks by defendant company, being a payment in excess by the sum of $19.50 of the amount of damages due for that kind of injury.

Plaintiff alleges that the blow he received by this flying knot or piece of limb over his left eye and his forehead seriously injured his brain, nerves and both of his eyes, fractured the bones about his nose and eyes and fractured his skull in that area; that the said injury and blow caused his right eye to be impaired at once after the blow, and the said right eye has gradually grown worse and more impaired since the said blow as a result thereof. The foregoing allegations embody substantially his cause of action.

Plaintiff testifies that he was knocked over the left eye with the piece of a knot or limb, for a few minutes was blinded in both eyes, and when he got where he could see, he sat down in the shade. He says he was not cut over the eye as a result of the blow, which left a bruise but no discoloration on his head.

Wisenbacker, foreman of defendant company, saw plaintiff immediately after the accident sitting over a log, we presume in the shade where plaintiff says he had taken a seat and says that he saw the lick plaintiff had received, and that there was no bruise or blood. Dr. Mangham who was in charge of the hospital for defendant company where plaintiff was sent soon after the accident says plaintiff’s left eye was red and inflamed and that there was no evidence of any fracture of the bones of his head or nose, or injury thereto. In September, 1930, two years after the date of the accident, Dr. Rand, an expert in x-ray work, made an exam- , ination of plaintiff’s head, and could find no signs of any fracture of any bones of the head and saw no scars. As to scars, however, his examination being superficial.

It is therefore safe to say that there is no evidence to support the allegation of plaintiff that the blow had fractured the bones in and about his face and fractured the skull in that area. It is on that character of injury upon which plaintiff based his averment that the blow had caused his right eye to be impaired at once, and which subsequently continued to gradually grow worse. A blow of the nature alleged certainly did not cause the subsequent injury to his right eye as by him alleged. This does not, however, preclude him from the right of recovery if the blow he did receive was not so severe as alleged but had, however, caused the weakness in his right eye of which he complains. Plaintiff says there was no effect to his right eye when he lost his left eye; that when he got warm his right eye bothered him, and he noticed a weakness in that eye about a couple of months after the accident. Plaintiff also says that after the accident he suffered from nose bleeding particularly when he got hot and before he was injured he had never experienced any such trouble or any weakness of sight or vision in his right eye. Close neighbors of the plaintiff also testify that prior to the accident, plaintiff did not suffer with such troubles.

All of that may be true but the question is as to whether or not the injury was the cause of the weak vision in plaintiff’s right eye upon which is based his claim for compensation.

Dr. Rand, who made the x-ray examination, says that he found no indication of any injury to (plaintiff’s head or eye that could have caused his nose bleeding. He explains that this trouble, when people are overheated, will show itself in many individuals, in childhood and old age. Besides, there is no evidence, expert or otherwise, showing that this bleeding of the nose could have affected plaintiff’s eyesight. Dr. Peters, ear, nose and throat specialist of Alexandria, made an examination of plaintiff in September, 1930.

He found his vision in the right eye nearly normal, about normal, and no vision in the left eye. He says the examination showed a scar in the center of the left eye which accounted for the loss of its central vision. He testifies that there was not any injury to that eye which could have had the tendency to impair the vision in the other eye. He concludes on this subject by saying that he could not find anything wrong with his right eye which could be attributable to a lick over the left eye in July, 1928. Dr. Peters was an expert called by defendant company, so were Drs. Mangham and Rand.

Dr. Simonton was sworn as an expert by plaintiff. According to his examination, (plaintiff had a distance vision in his right eye of twenty-fourty, therefore defective to that extent, but his near vision, he found, to be seventy-five one hundredths, which was normal. He stated, that a terrific injury to one eye causing blindness will sometimes produce sympathetic blindness in the other. There was no terrific injury suffered by plaintiff in this case, although it is true that he lost his left eye. Dr. Simonton was asked the following question: “Well, suppose this, if it should be shown in this case that this man’s Sight was good in-both eyes, especially in the eye he now has, before this injury, and there is nothing else to show why it was impaired, wouldn’t you consider it would be reasonable to attribute to it that the injury had something to do with it?” Answer: “It is possible; yes, sir.” He repeats that it would be possible, if he had had a severe lick on the head, and one eye had been put out.

Here, the lick was not severe, as there was no cut on the head, only a sore spot, a mere bruise from which had not resulted any discoloration. Even if a severe blow had been inflicted upon which was predicated the hypothetical question to Dr, Simonton, expert witness for plaintiff, the answer of the physician was that the weakness of the good eye might possibly be the result- of. the blow. Hence, the answer is of the possibility of such a result, and which it seems did not fall within the line of probabilities. The examination of Dr. Simonton was made in August, 1930; that of Dr. Peters, for defendant, in September, 1930, when the right eye of plaintiff must have been in practically the same condition. Dr. Peters, being questioned on the same subject, says that the weakness of plaintiff’s right eye could not be attributed to the lick he had received on his left eye. His answer is positive to the effect that there was no evidence whatever that this lick had influenced the weakened condition of the right eye.

Dr. Simonton said it was possible that the right eye had been affected by the blow plaintiff had received qn his left eye, while Dr. Peters was of the positive opinion that no such effect could have resulted therefrom. From the testimony of Dr. Simonton we cannot say that such a result was even probable, while, we must, should we accept Dr. Peters’ opinion, conclude that such a result would have been an impossibility. It is therefore safe to say that plaintiff has, from the expert testimony in the case, failed to even make his cause of action probable. The proof shows that plaintiff had a tonsilar affection when the examinations were made, and on this point, Drs. Simonton and Peters happen to agree. Dr. Simonton says that infected tonsils, just as any other local infection in any part of the body, may cause weakness of the eyes. In this particular case, he remarks, however, that he could not say that it was the cause. Dr. Peters said on this subject that a tonsilar infection might have accounted for the condition of plaintiff’s eye, but that he did not really think that it was the cause. A correct analysis of the testimony of these two experts, on that subject, shows that there was, if not a probability, at most a possibility, that the trouble in plaintiff’s right eye was caused by his infected tonsils. According to the testimony of the two physicians there was less probability that the condition of that eye was the result of the lick plaintiff had received on the other eye. At most, there exists a possibility . that the trouble in plaintiff’s eye was. the result either of the injury to his left eye suffered in 1928 or to the diseased condition of his tonsils. The question arises to which of the two causes the weakness of that eye must be ascribed. The experts could not say and in a case of this character, we must, take them as our guide, unless the evidence is of such a nature that the court must conclude otherwise. There is no such evidence in this record, an.d we must conclude that plaintiff has failed to prove his case with legal certainty, which is fatal to his claim for compensation.

His demand was properly rejected, and the amount in reeonvention was correctly allowed. Rehearing refused.


author: ELLIOTT, J.

text:
    No. 799
    First Circuit
    COLLIGAN v. BENOIT (In Re Rule on Carmouche and Brunson, Sureties)
    (June 30, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)

      See also, 17 La. App. 597, 135 So. 616
    Medlenka, Bruner & Chambers, of Crowley, attorneys for plaintiff, appellee.
    W. _ J. Carmouche and H. G. Brunson, of Crowley, attorneys for defendant, appellant.
   ELLIOTT, J.

This case grew out of the suit entitled Theodore Colligan v. Eraste Benoit, in which the plaintiff Colligan brought suit against Eraste Benoit, defendant, provisionally seized his crop and recovered judgment against him for $468.63, with interest, maintaining the seizure of part of the crop, certain bales of cotton seized being ordered released.

The judgment in that case was suspensively appealed from by Eraste Benoit with W. J. Carmouche and H. Gordon Brunson as sureties on his appeal bond.

The -judgment appealed from was affirmed. See Colligan v. Benoit, 13 La. App. 612, 128 So. 688.

Upon the return.of the case to the lower court Colligan caused a writ of fieri facias to issue against Eraste Benoit on the judgment against him, which was returned nulla bona.

Colligan then proceeded by rule against Carmouche and Brunson, sureties on his appeal bond to show why judgment should not be entered up against them in solido for the amount due him on said judgment' by Eraste Benoit. .

They each appeared and urged in defense that Eraste Benoit had an equity ■in a crop which should be first applied to said indebtedness and furthermore that Mrs. Dorestine Benoit, surety on the forthcoming bond under which the property seized had been released, was liable before them. That property belonging to her had been seized and proceedings against them should be stayed until the property belonging to her had been sold and the proceeds applied to the judgment.

The trial resulted in judgment in favor of the plaintiff in rule and against Carmouche and Brunson as prayed for. Carmouche and Brunson each have appealed. This is the appeal now before us.

The record shows that Carmouche and Brunson both joined in the petition for and were granted a suspensive appeal from the judgment against them; both perfected their appeals, but when the case was called for hearing in this court neither appeared. Colligan, appellee, appeared and for answer ■ to the appeal alleged that it was frivolous. He prayed that the judgment appealed from be affirmed. He alleges in his answer that appellants have abused the right by prosecuting a frivolous. appeal and prays that they be condemned to pay damages for having done so.

W. J. Carmouche, after perfecting his appeal, departed this life. Emile A. Carmouche was. appointed administrator of his estate.

Colligan, appellee, by the order of this court had his administrator made a party appellant in decedent’s place.

After the appeal had been thus submitted to the court, but before any action on the appeal was taken in this court, H. Gordon. Brunson, the other appellant, also departed this life, leaving a widow, Mrs. Martha Ellis Brunson and a minor child, Hugh Ellis Brunson, his sole heir. Emile A. Carmouche was by the order of this court upon the petition of appellee appointed tutor ad hoc for the minor, and the said Martha Ellis Brunson and the said Emile A. Carmouche, in his capacity of tutor ad hoc, were made parties appellant in this court in place of the decedent, H. Gordon Brunson, and given 25 days from the service of notice of the order making them appellants in which to appear in support of the appeal. The required time having elapsed, and no brief nor other effort having been made by either of the appellants to support the appeal, we proceed to dispose of the case. An examination of the record does not disclose any error in the judgment appealed from. The judgment appears to be correct.

Appellee urges that the appeal was an abuse of the right and frivolous, and that appellants should be condemned to pay damages for having prosecuted a frivolous appeal. We can see no reasonable ground for the appeal, but, under the existing circumstances, we refrain from imposing any penalty on the present parties appellant.

Judgment affirmed. Appellants to pay the costs in both courts, but no execution is to issue on the judgment against W. J. Carmouche and H. Gordon Brunson signed in the district court on October 14, 1930, except for any balance that may remain due after process against Mrs. Dorestine Benoit on the judgment against her signed in the district court qn September 5, 1930, has failed te obtain satisfaction of the amount due said Colligan on his judgment against Eraste Benoit signed in the district court on January 14, 1930.


text:
    No. 800
    First Circuit
    BENOIT v. COLLIGAN
    (June 30, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    See also, 17 La. App. 595, 135 So. 615.
    H. G. Brunson, of Crowley, attorney for plaintiff, appellant.

      Medlenka, Bruner & Chambers, of Crowley, attorneys for defendant, appellee.
   ELLIOTT, J.

In the case entitled Theodore Colligan v. Eraste Benoit, 17 La. App. 595, 135 So. 615, the present defendant, Colligan, obtained a writ of provisional seizure, under which a crop belonging to Eraste Benoit was seized. Eraste Benoit obtained the release of .the property seized by giving a forthcoming bond which his. mother Mrs. Dorestine Benoit signed as surety.

There was judgment in the case in favor of Colligan, and the defendant Eraste Benoit appealed to this court. In this court the judgment appealed from was affirmed. See 13 La. App. 612, 128 So. 688. Upon •the return of the case to the lower court Colligan issued a writ of fieri facias against Eraste Benoit, which was returned nulla bona.

. .Colligan then proceeded by rule against Mrs. Dorestine Benoit, surety on the forthcoming bond, to show cause why judgment should not be entered up against her for the amount of his judgment against Eraste Benoit, which was for $468.24, with interest thereon, with $72.75 clerk’s cost and $17.24 sheriff’s cost, and for cost of the rule.

Mrs. Benoit, although duly served with notice to appear and answer the rule, made no appearance. The rule was in due course made absolute, and judgment was entered up against her in favor of Colligan as prayed for. Colligan then caused a writ of fieri facias to issue on his judgment against Mrs. Benoit, under which certain immovable property belonging to her was seized and advertised for sale to pay the amount due on his judgment against her. ■

Mrs. Benoit obtained a preliminary injunction against Colligan, but in doing so she was. required to give an injunction bond for $725, which was signed by. H. B. Baker as surety.

Her allegations may be summed up with the statement that in her petition for injunction she refers to the judgment rendered against her on the rule as a pretended judgment; but there is no direct attack alleging its nullity on any ground. She alleges that Eraste Benoit had been, reserved the right in the judgment which Colligan had obtained against him in said suit to bring a certain action against Colligan, which suit would soon be filed, etc.; that in the judgment which Colligan had obtained against Eraste Benoit she could not be held liable on said forthcoming bond for' the cotton which had been seized and the seizure of which had been maintained, etc.

No effort that we can see was made by her to make good her demands. .The injunction was resisted by Colligan on a number of grounds. In the lower court there was judgment against her and H. B. Baker, the surety on her bond, dissolving the injunction and condemning them in solido to pay Colligan $65 damages on account' of the wrongful obtainment of the same.

Mrs. Benoit took the present suspensive appeal to this court.

Colligan has answered the appeal, praying that the judgment appealed from be affirmed, except that the damages allowed in the lower court be increased to 20 per cent of the amount due him on said judgment, and that she be condemned to pay him 10 per cent in addition thereon for having abused the right of appeal by bringing before the court a frivolous appeal. No appearance has been made nor brief filed in behalf of Mrs. Benoit in this court. The record has been examined, but we find no error in the judgment appealed from. The claim of Colligan for an increase of damages and his prayer that Mrs. Benoit be penalized for having abused the privilege of the law by bringing before the court a frivolous appeal has received our consideration.

We do not think the amount of damages allowed in the lower court should be increased. The attorneys representing Mrs. Benoit have both departed this life. Under the circumstances, we have decided not ■ to impose any penalty against her.

The judgment appealed from is' correct. Judgment affirmed; plaintiff-appellant to pay the cost in both courts.


text:
    No. 791
    First Circuit
    TOWN OF LEESVILLE v. KAPOTSY
    (June 16, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    A. B. Cavanaugh, of Leesville, attorney for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendant, appellant.
   ON MOTION TO DISMISS

MOUTON, J.

An appeal was granted in this case, returnable to this court, June 20, 1930.

Appellant filed a motion in this court, June 18, 1930, alleging that the clerk of court for Vernon parish would be unable to file the transcript within the time fixed for the return day, and asked for an extension of time until July 20, 1930, to allow the clerk to transcribe the notes of evidence, and complete the record.

The record should have been completed and filed here within the time fixed under the extension granted by this court, or a further extension should have been applied for within the delay fixed in the extension. J. S. Terry Const. Co. v. James K. Sutherlin Co., 145 La. 397, 82 So. 384.

The record has again been lodged in this court in the same state of incompleteness, without a legal certificate of the clerk, bill of exception, statement of facts, or assignment of errors, and after the expiration of the time fixed for the extension of the return day for the appeal.

The motion for a dismissal filed by appellee must prevail, and the appeal is therefore dismissed at appellant’s cost.