text:
    No. 3774
    Second Circuit
    MATSLER v. JONES MOTOR CO., INC., ET AL.
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)
    Shotwell & Brown, of Monroe, attorneys for plaintiff, appellee.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendants, appellants.
   DREW, J.

Plaintiff, on June 4, 1929, brought suit against Jones Motor Company, Inc., and Y. J. Maish, alleging that said defendants were indebted unto plaintiff in solido in the full sum of $20,339 for injuries sustained by plaintiff by being struck and knocked down by an automobile driven by Y. J. Maish, an employee of Jones Motor Company, Inc., while acting within the scope of his employment and in the discharge of his duties; plaintiff further alleged that, at the time she was run into by said automobile, she was crossing De Siard street in the city of Monroe at the point where Third street intersects De Siard street; that plaintiff was within the white lines marked off at said intersection for the use of pedestrians; that she had observed the condition of the traffic at said point before crossing the street and had reached a point beyond the center of the street, traveling from the southern to the northern side of De Siard street, when the car then being driven by V. J. Maish, in an easterly direction along De Siard street, was driven into plaintiff with such force and violence as to hurl plaintiff to the pavement, whereby she sustained a vertical fracture of the outer condyle of the tibia (the larger bone of the lower leg); that a fragment was broken off of said bone, being about one inch in width and one and one-half inches in length, which was displaced outward, approximately one-half of an inch; that the head of the fibula (the smaller bone of the lower leg) sustained a splitting fracture running obliquely across the head and shaft and extending inward and upward. That in addition to the injury to petitioner’s knee as above set out, petitioner sustained numerous bruises and contusions about the body; that her back and shoulders were badly wrenched and sprained, all of which caused her great bodily suffering and soreness and greatly impaired her general health. That, as a result of said injuries, plaintiff was confined to her bed for a period of twelve weeks with her left leg packed in sand bags, during which period she suffered great pain and inconvenience attendant upon being confined to bed without being able to move or shift her body; that, after being able to leave her bed, she could move about only by the use of a wheel chair which was being used by petitioner at the time her suit was brought, and she further averred permanent disability and that in the event she should regain any future use of her limbs, that mobilization would always be attended with severe pain.

Plaintiff itemized her damages as follows:

(a) Pain and suffering undergone by petitioner because of said accident ....................................$ 5,000.00
(b) Permanent disability; impairment of petitioner’s health; inability to do any work of any reasonable character; impairment of petitioner’s general health and loss of resistive power ________________________ 10,000.00
(c) Pain and suffering which
your petitioner will have to undergo through the balance of her natural life on account of said injury______________ 5,000.00
(d) Expenses:
Sanitarium bill____________$ 14.00
Drugs and medicines 31.00'
Nurses’ bill---------------------- 144.00
Doctors’ bill__________________ 100.00
Wheel chair, crutches and other incidental expenses________ 50.00
-- 339.00
Total.......................... $20,339.00

Plaintiff further alleged that said accident resulting in her injuries was caused solely by the carelessness, negligence, and wanton disregard of her rights on the part of the said Y. J. Maish in the operation of the Hudson brougham automobile which he drove into plaintiff at said street intersection while running at a high rate of speed and without giving warning by the sounding of his horn or otherwise.

Defendants filed answer admitting the occurrence of the accident, but denying that it resulted through the negligence of the said V. J. Maish in operating the Hudson brougham automobile which they denied he was driving in a careless or negligent manner, and further admitted that plaintiff received some injuries, but denied that she was injured to the extern; which she alleged and further alleged that such injuries as plaintiff sustained were due to plaintiff’s fault or negligence in walking into or onto the street directly in front of a moving car which was being operated in a lawful, prudent manner.

Defendant, Jones Motor Company, Inc., further admitted that the car or truck which was being driven by the said Y. J. Maish was owned by defendant, Jones Motor Company, Inc., and that the said V. J. Maish was the servant and employee of the said Jones Motor Company, Inc., and was then acting within the scope of his employment.

Upon the issues so made, the case was tried and submitted to the district court and judgment was rendered in favor of the plaintiff and against the defendants, Jones Motor Company, Inc., and V. J. Maish in solido, in the sum of $8,500, together with legal interest from judicial demand and all costs. From the judgment thus rendered, the defendants prosecute this appeal. Plaintiff has answered the appeal praying that the judgment of the lower court be increased to $12,500 or $15,000.

Dr. Julie B. Matsler, plaintiff in this case, is a widow, who, prior to the accident, earned her livelihood by the practice of her profession of osteopathy in the city of Monroe, which profession she has followed since 1904. It was her sole means of support.

The accident occurred about one o’clock in the day on January 12, 1929, at the corner of De Siard and Third streets in the city of Monroe, La. The sun was shining and the street at this point was paved with asphalt and was dry and in good condition. The street is forty feet wide, with a street car track in the center. It is about twenty feet from the curb on the south side of said street to the street car track, and there were no automobiles parked on the south side of said street at the time of the accident. There was sufficient space south of the street car track for three cars to travel abreast. Plaintiff, before attempting to cross the street, stopped and looked in both directions. There was no car coming from the east, but she did see a car down the street some distance, coming from the west. Realizing she had plenty of time to cross in safety, she proceeded to walk slowly across the street, walking within the white lines marked off for pedestrians. She had either reached the car track in the center of the street or was within a few feet of it when she was struck by defendant’s car. The testimony of all witnesses, including the statement signed by the defendant driver immediately after the accident, shows that plaintiff fell on the south rail of the street car track. The defendant driver testified that he saw plaintiff when she was three or four feet from the curb, when she stopped and looked in both directions and then started on across the street; that he did not see her any more until he was in the act of striking her with his car, and that he swerved to the right to keep from running over her with his wheels.

There was no obstruction in the street and nothing to prevent the defendant driver from seeing plaintiff continuously from the time she entered the street, when he admits he did see her, until she had crossed the street, and the fact that he did not see her is because he was not looking and was not keeping a lookout for pedestrians at street crossings, which the law clearly makes his duty.

It was clearly the duty of the defendant driver, upon seeing plaintiff enter the street, to have, put his car under control, to have sounded his horn and to have kept a close lookout ahead. He did not sound his horn and, admittedly, did not keep a lookout ahead. His failure to do so was the proximate cause of the accident and was gross negligence on the part of the defendant driver.

Defendant driver admitted to several witnesses immediately after the accident that he was not looking or watching for pedestrians when he struck plaintiff. This only corroborates the testimony given by him on trial and the physical facts in the case. For this court to hold that he was keeping a proper lookout would necessitate our holding that lie purposely ran over the plaintiff, which is not contended, nor do we think a fact, for he had sixteen or eighteen feet to his right in which to pass the plaintiff, had he been looking where he was going. The evidence is convincing that defendant was driving in the center of the street, possibly straddling the car rails, for plaintiff was struck while on the car track or very near to it, and defendant driver testifies that he swerved to the right before striking her. This testimony, we think, is conclusive that he was not driving on the right-hand side of the street where the law of the road requires him to drive.

Blashfield on Automobiles lays down the following principles of law that are sound:

“A person in charge of a vehicle approaching a street crossing is bound to the reasonable use of his senses to prevent injury to persons on foot using the crossing, and is bound to exercise such reasonable caution as an ordinarily careful and prudent person would exercise in like circumstances; such ordinary care and prudence requiring the driver to exercise the greatest caution, or, as it is expressed in some jurisdictions, requiring him to be highly vigilant and maintain control so that he can, on the shortest possible notice, stop his vehicle if necessary to prevent danger to pedestrians, or so as to obviate, as far as reasonably possible, a collision with pedestrians.” Blashfield’s Cyclopedia of Auto-, mobile Law, Vol. 1, p. 598.
“Greater care is required from a motorist to avoid accident on a street crossing ■or in the crowded streets of the city than in streets of the open or suburban parts.
* * *” Blashfield’s Cyclopedia of Automo-
bile Law, Vol. 1, p. 599.
“In the performance of such duty, besides having his car under reasonable control the driver of an automobile must keep a lookout ahead, operate his machine at a reasonable speed, having regard to the traffic, and give reasonable and timely warning of his approach by the usual and customary signal.” Blashfield’s Cyclopedia of Automobile Law, Vol. 1, p. 600.

In the case of Johnson v. Boyle, 5 La. App. 362, the court said:

“Drivers of motor vehicles owe children, aged, infirm and drunken pedestrians, especial care, particularly at intersections, where pedestrians, observing police regulations, have the right of way.”

And in the case of Da Ponte v. Uzzo, 5 La. App. 105, the court said:

“Upon approaching the intersection of two much frequented streets within the limits of this city, it is the duty of a chauffeur to check up his speed and to use more than ordinary care to avoid injury to persons or property.”

Where this accident occurred is in the heart of the business district of the city of Monroe, and the principles laid down in the above citation are applicable to this case, and the defendant driver has signally failed in his duty to the plaintiff. She was observing police regulations and was within the white lines marked off for use of pedestrians and had reached a point of safety before being struck by the defendant driver. She was guilty of no negligence, while the negligence of defendant driver is such as to amount, almost if not entirely, to criminal negligence.

Defendant, Jones Motor Company, Inc., admits that V. J. Maish, the driver of the automobile, was in its employ, driving its car, and was at the time acting within the scope of his employment, therefore it is unnecessary to discuss this point.

The judgment of the lower court holding both defendants liable in solido is correct, and the only remaining question is the amount of damages to be allowed.

Plaintiff’s injuries, as set out in the pleadings, have been fully established and without contradiction. She was well and healthy at the time of the accident and engaged actively in her profession of osteopathy. Since the accident she has aged greatly due to the intense suffering; she has become melancholy and at the time of trial was still suffering constantly; she has been entirely deprived of practicing her profession, her sole means of support, and has been made a charge for her daughter; she can get about, only with the aid of crutches and the uncontradicted testimony is that she will have to use crutches, or possibly a stick, the remainder of her life. She can never stand on her feet again to practice her profession. She cannot practice her profession sitting down.

The lower court’s award of $8,500 is not far out of line; however, we think a judgment for $10,000 will be nearer an adequate award.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court in favor of the plaintiff and against the defendants, Jones Motor Company, Inc., and V. J. Maish, in solido, be increased from the sum of $8,500 to $10,000, and as amended, that the judgment of the lower court be affirmed.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3792
    Second Circuit
    AULTMAN v. LOUISIANA CENTRAL LUMBER CO.
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)
    Thornton, Gist & Richey, of Alexandria, attorneys for plaintiff in rule, appellant.

      Vinson M. Mouser, of Columbia, attorney-fox’ defendant in rule, appellee.
   WEBB, J.

On March 10, 1925, C. E. Aultman was awarded judgment for compensation for disability resulting from injury sustained by him on May 23, 1924, while he was employed by the Louisiana Central Lumber Company, and the judgment was affirmed on appeal. Aultman v. Louisiana Central Lumber Co., 3 La. App. 132.

The award was for permanent total disability to do work of any 'reasonable character (subsection 1(b), section 8, Act No. 20 of 1914, as amended by Act No. 43 of 1922), or for weekly payments during the period of disability, not to exceed four hundred weeks, the payments beginning on the date of the injury, and the amount of the payments was fixed at $9.90, or 60 per cent of the weekly wages earned by Aultman prior to the injury. Compensation was paid for two hundred seventy-eight weeks, or until September 26, 1929, and, on October 24, 1929, the Louisiaxxa Central Lumber Company proceeded by rule under the provisions of sectioxx 20 of the statute, to have the judgment modified, on the ground that Aultman’s disability had ceased, and to be relieved of further payments under the judgment. On trial, the rule being recalled and discharged, the lumber company appealed.

The injux’y which disabled Aultman was caused by a piece of lumber being thrown against his back, and on the date of the trial, March 10, 1925, he stated that he suffered with continuous pain in the lumbar region of his back and at times with extreme nervousness, and that he had been totally unable to do any work since the accident; and radiographs of his back, taken about the time of the trial, showed he had sustained a sprain of the sacroiliac joint.

On trial of the rule, January 15, 1930, evidence was introduced on behalf of plaintiff in rule showing Aultman had leased a farm in 1926, where he resided until about July, 1927, when he entered the service of the village of Bonita as night watchman and marshal at a salary of $75 per month, where he remained until about March, 1929, and that about July, 1929, he was employed as night watchman by a lumber company at a salary of $50 per month in which employmexxt he remained two or three months. It is conceded that Aultmaxx performed some manual labor on the farm and while employed by the village of Bonita, the work in the latter employment consisting of repairing bridges, gi’ading work, posting a signal light, which required him to climb a ladder about twenty feet in height, and making the rounds of the village about seven times each night; and evidence was also introduced showixxg that there was not -any indication in Aultman’s carriage of disability, and a physician was called, who stated that a radio-graph of Aultman’s back, taken about the time of the trial of the rule, did not indicate any injury of the sacroiliac joint.

On behalf of the defendant in the rule, ■Aultman said that he suffered at times with pain in his back, especially at night, and that he could not lift heavy objects, and although he admitted he had done some work, as stated above, we gather from his evidence that, with the exception of making the rounds of the village, the work was not continuous and did not require any great physical effort.

His statement, relative to suffering at night, was supported by the testimony of his wife, and his statement, that the wox’k done by him while employed by the village of Bonita did not require any great physical effort, was supported by the testimony of a co-employee; and a physician was called who said the radiograph referred to above indicated that there had been an injury to the sacroiliac joint, but he agreed with the physician called by plaintiff in the rule that one suffering with a serious sprain of the sacroiliac joint could not do much walking, and that if Aultman was able to climb a ladder there could not have been any serious sprain of the sacroiliac joint at that time.

The evidence conclusively establishes that Aultman had, for a considerable period of time since the award, earned an amount in excess of the amount earned prior to the accident, and the award being based on disability to work, and the period and amount of compensation being fixed at the probable duration of disability and earnings of the employee, it is obvious that the facts relative to his employment subsequent to the award indicate that Aultman had recovered from the disability existing at the time of the award, and that the award should be modified (Skelton Lead & Zinc Co. v. State Industrial Commission, 100 Okla. 188, 229 P. 255; In re Ginley, 244 Mass. 346, 138 N. E. 719); but it is urged that the employment was extraordinary and required very little physical effort, and should be given little consideration in determining whether Aultman had recovered from the disability; or, as we gather from the argument, while it is conceded that Aultman was able to perform the duties of a night watchman, it is contended that the employment was of such an unusual character it should not be regarded as any criterion of Aultman’s ability to earn wages, or as indicating that he had recovered from the disability existing at the» time of the award.

There was not any evidence introduced that tended to show that the employment of night watchman was exceptional, and the period during which Aultman was engaged in such employment does not indicate that it was merely casual; and, while the evidence does not show that the employment required the same physical effort as the employment in. which he was engaged at the time of the accident, it does show that physical effort was required, and that defendant in the rule performed work of a character which he could not have performed had there been at that time a sprain of the sacroiliac joint; and we are of the opinion that the preponderance of the evidence establishes that Aultman had recovered from the injury and disability existing at the time of the award, and that plaintiff in the rule should have been relieved of further payments under the judgment.

It is therefore ordered that the judgment appealed from be avoided and reversed, and that the order suspending further payments of compensation be reinstated, and that the rule issued be maintained, and that the Louisiana Central Lumber Company, plaintiff in the rule, have and recover judgment against Charles E. Aultman, defendant in the rule, relieving the Louisiana Central Lumber Company from further payments of compensation under the judgment rendered in the cause of Charles E. Aultman v. Louisiana Central Lumber Company, No. 2828 on the docket of the Eighth Judicial District court of Caldwell parish, La. It is further ordered that Charles E. Aultman pay-all costs of the proceeding under the rule.


author: REYNOLDS, J. ODOM, J.

text:
    No. 3577
    Second Circuit
    CLEMENTS ET AL. v. LUBY OIL CO., INC.
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)
    (May 5, 1930. Reversed by Supreme Court on Writ of Certiorari and Review and Remanded.)
    Foster, Hall, Barrett & Smith, of Shreveport, attorneys for plaintiffs, appellees.
    Cook & Cook and John B. Files, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

This suit is by S. Q. Clements and Ellis Clements, majors, and Mrs. Evie Clements, for herself and as natural tutrix of Irma Jane Clements and Donald Clements, minors, against the Luby Oil Company, Inc. Mrs. Clements is alleged to be the widow of William E. Clements, deceased, and the others to be the issue of their marriage.

They seek judgment against defendant for the death of the husband and father, in favor of the widow and minors, under the Workmen’s Compensation Act (Act No. 20 of 1914, as amended) for $8,000, payable in installments of $20 a week, beginning as of December 17, 1927, with legal interest on each payment from its maturity, and for $400 as necessary expenses incident to the last illness and burial of the deceased, and, in the alternative, in favor of all of them, under article,2315 of the Civil Code, for $15,400, with legal interest thereon from December 10, 1927.

Plaintiffs allege that on December 10, 1927, the deceased was in the employ of defendant in the capacity of a manual laborer at a weekly wage of $37.50, and that on that date ‘‘in the course of his work in constructing a derrick for defendant --- was engaged in nailing the braces on said derrick; that the construction had progressed for some distance from the ground; and that in walking along a girder the said William E. Clements stepped on a brace, which broke under his weight; that he attempted to save himself by gripping a cross-brace as he fell, but his grasp was loosened by the force of his fall, and that he fell to the floor of the derrick, a distance of thirty-four feet; that he was rushed, in an unconscious condition, to the office of a physician in Vivian, and then brought to a hospital in Shreveport, where he died on the following day.”

It is further alleged that the construction of the derrick was under the supervision and direction of the president of the defendant, and that the material for its construction was supplied by defendant and that the deceased had no voice in the selection thereof; “that it is customary among prudent and careful rig builders to step upon these braces in the construction of a derrick, and that a sound brace of the same size is amply strong to support the weight of a rig builder so stepping upon it, and that crossing these braces by means of walking upon them is a necessary part of the construction of the derrick;* * * that the section of lumber used for the brace which broke and caused the death of William E. Clements was of the customary size and length used for such braces in constructing such derricks, and that, if said brace had been sound, the injury that caused the death of said William E. Clements would no’t have occurred, but that said section of lumber used for said brace was faulty by reason of a hidden defect not visible or known to the deceased; and that such defect or weakness was known, or should have been known, to defendant, and was the proximate, direct and immediate cause of the injury to the said William E. Clements and of his death.”

The defendant admitted the relationship of plaintiffs to the deceased as alleged by them, and also admitted the accident to and death of the deceased as alleged, but denied that the deceased was in its employ, or that the brace was faulty.

Further answering plaintiffs’ petition, defendant alleged that at and prior to the time of the accident to and death of the deceased 'the deceased was a partner in a partnership composed of himself and M. F. Lester and doing business under the name of Clements & Lester; that defendant had contracted with the firm of Clements & Lester to construct a derrick for a certain price, the material for which was to be furnished by defendant, and that at the time of the accident to the deceased he was engaged in constructing the derrick for the partnership of which he was a member, pursuant to the contract between defendant and the partnership; that under the contract between defendant and the partnership it was the duty of the deceased or whoever else performed the work for the partnership to choose the material out of which the derrick was to be constructed from a larger lot of material suitable for that purpose; that, acting for the partnership, the deceased selected the particular material that was used in the construction of the derrick, and that if the brace was defective he knew, or by the exercise of reasonable diligence could have known, that fact, and was negligent in not discovering it, and in using material that he knew or should have known was unsound, and is barred from recovery by his own fault.

On these issues the case was tried, and judgment was rendered in favor of the widow and minor children, under the Workmen’s Compensation Law, for $8,000, payable in installments of $20 weekly, the first payment being decreed due as of December 17, 1927, with legal interest on each payment from its maturity, and in the further sums of $100 for medical service to the deceased during his last illness and $150 for his burial expenses, with legal interest thereon from judicial demand.

. From this judgment the defendant appealed, and all of the plaintiffs answered the appeal and ask that the judgment appealed from be affirmed, and, in the alternative, ask that, if this court should be of opinion that the widow and minors are not entitled to judgment under the Workmen’s Compensation Act, judgment be rendered in favor of all of the plaintiffs against the defendant, under article 2315 of the Civil Code, for $15,400.

OPINION

The view that we take of the case renders it unnecessary for us to consider plaintiffs’ alternative demand. Under the pleadings and the evidence, the only question to be determined by us is whether the deceased was an employee of defendant or an independent contractor.

The deceased was a member of a partnership called Clements & Lester, the other member of which was M. P. Lester. The partnership was engaged in the business of building derricks or rigs for use in drilling wells for the discovery of petroleum. The partnership had contracted with defendant to construct for the latter a derrick or rig, the material therefor to be supplied by defendant. In respect of the business arrangement under which the derrick was being erected, M. E. Lester testified:

“Q. You were associated with Mr. Clements?
“A. Yes, sir.
“Q. How were you associated with" him?
“A. We were partners.
“Q. What kind of business were you all engaged in?
“A. The rig-building business.
“Q. What was your partnership known as? What name was it known by?
“A. We just called it Clements & Lester.
“Q. Was that an equal partnership — to share equally in the profits of the partnership?
“A. Yes, sir.
“Q. At the time of his death, what were you all doing, Mr. Lester?
“A. We were working on a derrick for the Luby Oil Company, Inc., near Hosston.
“Q. What kind of a contract or arrangement did Clements & Lester have with the Luby Oil Company, Inc., for the erection of that derrick, or for the doing of that work, Mr. Lester?
“A. We were doing — we were to do the job for so much.
“Q. How much, if you remember?
“A. Sixty-five dollars.
“Q. What were you all to furnish in the construction of that derrick?
“A. We were to furnish the labor.
“Q. Where were you all to get the material from, Mr. Lester?
“A. Well, we were not to get the material: it was to furnish the material.
“Q. The Luby 'Oil Company, Inc., then was to furnish the material?
“A. Yes, sir. * * *
“Q. Just what direction, if any, did Mr. Austin, of the Luby Oil Company, Inc., give you and Mr. Clements with reference to the obtaining of that material or lumber?
“A. He just told us that the material was there to build the derrick with.
“Q. Now, was that new or. secondhand material?
“A. It was both.
“Q. Did he give any directions as to what pieces of material weré to be used, and those that were not to be used, or what were his instructions as to that?
“A. He only told us that the lumber was there for the building of the derrick.
“Q. Did Mr. Austin make any statement about using any material that was fit or unfit?
“A. ' Well, he pointed out the lumber, and told us not to use anything that was not fit, and we picked out the best that we could find.
“Q. Now, how long had Mr. Clements been in the derrick-building business?
“A. Ten years, I reckon; eight or ten years, I guess.
“Q. How long have you been in the business?
“A. The same as Mr. Clements; about the same as him.
“Q. In your business, is it part of that business to select timbers, and select material frequently from used material, and use those timbers?
“A. Yes; and we always select the best that we are able to find, and, of’ course, use all of it that we find that is good, and, of couse, there is some in there that is not good, that we can’t use.”

The witness alsu testified that not all of the lumber that was used in constructing the derrick was obtained from the lot that Mr. Austin pointed out for use, but that the deceased “went upon the hill and came back with” some pieces of 1x4 lumber, and that—

“Q. Mr. Lester, is 1x4 the usual and proper timber to use for braces?
“A. No.
“Q. Well, Mr. Lester, did you have any discussion with Mr. Clements with reference to getting up on those timbers?
“A. When he came back, I asked him what he was going to do with them, and he said he was going to- use them; going to make braces out of them.
“Q. Did you discuss with him whether they were suitable for that or unfit?
“A. I told him that we had never used •1x4 for derrick braces.
■ “Q. Well, what did he say?
“A. He said we would have to do it; that there was nothing else there.
“Q. Do you know whether either you or Mr. Clements requested Mr. Austin for proper material of that kind, that is, 2x6, before you put up the 1x4?
“A. No, sir; Mr. Austin was not there that day.”

The witness further testified that the contract between the defendant and the firm of Clements & Lester was oral, and that the partnership had before built other derricks for the defendant under similar contracts, and that—

“Q. What was the contract with reference to the payment of the price? When was it to be paid?
“A. We had no particular time; they generally paid when we got through with the work; sometimes 30 days afterward.”

Subsection 8 of section 3 of Act No. 85, p. 113, of 1926, provides;

“A person rendering ser\ice for another in any of i,he trades, businesses or occupations covered by this act (other than as an independent contractor, which is expressly excluded hereunder) is presumed to be an employee under this act. The term, ‘independent contractor’ shall be considered to mean, for the purpose of this act, any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his worlc only, and not as to tihe means by which such result is accomplished.” (Italics ours.)

It being undisputed that the deceased, at the time of the accident, was performing manual labor for defendant, he was, under the plain and unambiguous language of the law, an employee of defendant, and, as such, his widow and minor children are entitled to the compensation for his death that the act provides. The fact that the relation of employer and employee did not exist between the deceased and defendant, or that the deceased was performing the manual labor for the firm of which he was a member, in the execution of the contract between his firm and defendant for the construction of the derrick, does not, in our opinion, exclude the widow and minor children from the benefits of the law, for the reason that under the definition a person who performs manual labor for another in a hazardous occupation is not an independent contractor, but an employee by virtue of the statute.

Or, as stated by our learned brother of the district court, in a written opinion, filed in the record:

“It seems to us that the framers of the amendment had a specific purpose in mind, and that that was to include the general definition of an independent contractor (which is applicable under all circumstances) and, in addition thereto, to protect the laborer on the job (the paramount purpose of the act) by adding an additional requirement, that a laborer could, under no circumstances (so far as that act was concerned), be an independent contractor. * * * ”

Defendant contends that, inasmuch as compensation is only in ratio to wages (except as to a minimum of $3 a week and a maximum of $20 a week), and varies with such ratio, and also inasmuch as the deceased was not earning wages, but possible profit, no basis exists for computing the compensation the widow and minors are entitled to, conceding that they are entitled to some.

This, of course, is a difficulty, but not an insoluble one, and it was solved correctly, we think, by the lower court. Subsection 3 of section 8 of Act No. 85 of 1926, p. 119, provides that—

“The term ‘wages’ as used in this act is defined to mean the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury. * * * ”

The evidence shows that the derrick could have been built by four workmen in one day, and that the deceased and the three others working with him at the time of the accident could and would have completed it in a day, but for the accident. The evidence also shows that the ’ aggregate of the daily wages paid the three workmen other than deceased was $28. This would have netted the firm of Clements & Lester a net profit of $37 on the job, and, as the deceased was an equal partner with Lester, he would have been entitled to one-half this amount.

The compensation to which- a widow and two or more children are entitled to is 65 per cent of wages for not exceeding 300 weeks (Act No. 85 of 1926, p. 117, sec. 8. subsec. 2, cl. (E), par. 3; Bass v. Weber-King Mfg. Co., 168 La. 651, 123 So. 112); but in no event more than $20 per week (same act, same section, subsection 3). Computing deceased’s earnings on the basis of $18.50 a day, his weekly earnings were more than enough to entitle the widow and minors to the maximum compensation of $20 a week that the law allows.

However, they were not entitled to judgment for this sum for any ‘definite number of weeks, but during not exceeding 300 weeks. Defendant’s liability to pay compensation may not continue for full 300 weeks. Same act, same section, subsection 2, clause (P). The judgment appealed from does not fix the time during which defendant’s obligation to pay compensation shall continue, and in that respect is erroneous and must be amended.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, so as to award Mrs. Evie Clements, individually and as tutrix, for the common benefit of herself and two minor children, Irma Jane Clements and Donald Clements, compensation of $20 a week during not exceeding 300 weeks, the first weekly payment commencing as of date December 17, 1927, with legal interest on each payment from its maturity until paid.

It is further ordered, adjudged, and decreed that, in all other respects, the judgment appealed from be affirmed. Plaintiffs to pay the cost of the appeal.

ODOM, J.

(dissenting). I respectfully dissent from the majority holding in this case, for the reason that in my opinion the deceased was an independent contractor. An independent contractor, under the act cited and quoted in the majority opinion, is one “who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his work only and not as to the means by which such result is accomplished.” Act No. 85 of 1926, p. 113, sec. 3, subsec. 8.

Deceased and his partner contracted to build for defendant a derrick complete. The specified recompense was $65, and the specified result was the completed derrick. As to the means of building the derrick, the deceased and his partner were in no sense under the control or direction of defendant. They were under the control of defendant as to the result of the work only. All they had to do under the contract, in' order to receive the specified recompense, was to complete the derrick according to specifications. My associates concede, as I understand them, that in these essentials deceased was an independent contractor. But, in the majority opinion, it is stated:

“It being undisputed that the deceased, at the time of the accident, was performing manual labor for defendant, he was, under the plain and unambiguous language of the law, an employee of defendant, and as such, his widow and minor children are entitled to the compensation for his death that the act provides.”

In my opinion, a wrong interpretation has been placed upon the statute. It specifically provides and recognizes that a man may render two kinds of service for another. He may render service as an independent contractor — that is, to do work “for a specified recompense for a specified result” — or he may render service purely and simply as a laborer for a daily or weekly wage. In one case, he is under the control of his employer “as to the results of his work only,’’ and is excluded from the benefits of the statute; while, in the other, he works under the direction of his employer, and compensation is due in case of injury or death.

. Deceased was at the time of his death rendering service for defendant; but he was rendering that service as an independent contractor, and not as a laborer. The distinction between the two kinds of service is clearly and manifestly pointed out in the statute itself. The effect of the majority holding is that one cannot be an independent contractor if the service to be rendered in order to accomplish the specified result involves manual labor. To so hold, in my opinion, is to render null and ineffective that portion of the statute which provides that independent contractors are not entitled to compensation.

Under the statute, compensation is due if an employee is accidentally injured or killed while “performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation in the following hazardous trades, businesses and occupations.” Act No. 20 of 1914, sec. 1. Following the above-quoted portion of the statute, the kinds of trades, businesses, and occupations deemed to be hazardous are enumerated, and palpably each and every one named involves manual labor. No house, railroad, sawmill, factory, or ofher structure can be built without manual labor; but all such structures may be undertaken or built by an independent contractor, who by express terms is denied compensation under the law.

Now, when a man undertakes to build a house, a derrick, or other structure as an independent contractor, what difference does it make in so far as his relation to his employer is concerned, under the law, whether he does the work with his hands, or hires it done by another? None whatever, in my opinion.

What occurred in the case at bar was that deceased and his partner agreed to build a derrick for defendant for $65. It is conceded that they were “under the control of his (their) principal as to the results of the work only and not as to the means by which such result is (was) accomplished.” They chose to do the work with their own hands, and while they were doing the work they were laborers, of course. But they were not employed to render service for defendant as laborers, but as independent contractors. As laborers, they were working for themselves, and not for defendant.

The judgment appealed from should have been reversed.


author: DREW, J.

text:
    No. 3828
    Second Circuit
    BARNES v. RED RIVER & GULF R. R.
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1980. Rehearing Refused.)

      Hawthorn, Stafford & Pitts, of Alexandria, attorneys for plaintiff, appellee.
    Jackson & Smith, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

The district judge has handed down a well-prepared written opinion in this case, and to a great extent we have adopted it as the opinion of this court.

Plaintiff sued for damages arising out of the death of her husband, John C. Barnes, on June 24, 1929, due to an accident on June 22, 1929, caused by a train of defendant’s lessee running into him while he was walking across a trestle over Bayou Boeul on the track of defendant near Lecompte, Rapides parish. Deceased was at the time of the accident employed by defendant as section foreman and was on his way home for the noon dinner. The train that ran into him and caused his death belonged to and was operated by the Gifford-Hill & Company, Inc., over the tracks of defendant with the knowledge and consent of defendant under a contract of lease granting the right and privilege to Gifford-Hill & Company, Inc., to use said track in the operation of its trains to haul gravel from its pit to Lecompte, La.

The right and privilege granted to Gifford-Hill & Company, Inc., under said lease agreement was for the sole and only purpose of hauling gravel over defendant’s tracks and was limited to one train a day each way unless special permit was given for other trains. It was required to operate under orders given by defendant’s dispatcher.

On the occasion of the accident, Mr. Barnes was on his way to his home for dinner and was walking the track, it being the shortest and most convenient way for him to reach his house. He had been in the habit of walking the track in going to and from home for several years to the knowledge of his superiors, the roadmaster, and other officials; when he arrived at the trestle, which was more than three hundred feet long, there was no train in sight, and he proceeded to walk across the same; just how far he had gone on the trestle when he was struck no one knows; however, the greater part of the evidence is that he was near the east end, that is, had nearly gotten across the trestle when he was struck; the trestle was very little wider than the train and no chance for him to step to one side and let the train pass; the trestle was very high and over water, which prevented him from jumping off the trestle.

The train had some time previous gone into Lecompte with a load of gravel and was at the time on its way back to the (pit with twenty empty cars; it had no regular schedule and there was no way for the deceased to know when it was coming. There was no train in sight when the deceased entered on the trestle, and he proceeded to walk across with his head down, undoubtedly watching his step to prevent falling through the trestle; the train came out of Lecompte headed west, and on reaching the highway, some two hundred or more feet from the trestle, gave its usual signals for highway crossings but did not give any other signals. At the time there were two other trains in the yards at Lecompte, both of which were making the usual noise that goes with operating a train, all of which easily accounts for deceased not giving notice if he heard it to the oncoming train. The engineer, due to a curve in the track, could not see the trestle until he had nearly reached it, but the fireman had a plain view of the trestle and did see it and the deceased, whom . he recognized for more than two hundred feet before the train reached the trestle.

Deceased was a man seventy years of age and therefore not very fast in his pace; the train was traveling at a rate of speed of from eight to ten miles an hour, and according to the testimony of trainmen could have been stopped within a distance of eighty or ninety feet. When the fireman saw deceased on the trestle he did not notify the engineer; neither did he ever give any signals for the deceased, his reason being that he thought deceased had sufficient time to reach the east end of the trestle before the train would get there. He testified that the deceased never looked up and was not aware of the presence of the train until it was right on him, and that when the train was nearly onto the deceased, he (the fireman) notified the engineer, who attempted to stop the train but was too close to the deceased to escape striking him. When the deceased saw the train, it was in the act of striking him, and the only thing for him to do in an effort to save his life was to step upon the pilot, which he did, and rode the engine across the trestle, where the train was slowed down and he got off. In hopping on the moving train he was struck in the abdomen and received internal injuries that brought on his death within about sixty hours.

Plaintiff first claimed compensation under the Employers’ Liability Act of Louisiana (Act No. 20 of 1914, as amended). Upon defendant answering, alleging that deceased was engaged in interstate commerce, and that both defendant and Gifford-Hill Company, Inc., and their employees were engaged in interstate commerce just before and at the time of the accident, plaintiff filed a supplemental petition with an alternative plea that in the event the court held the case to come within the interstate commerce rule, she asked for judgment under the Federal Employer’s Liability Law in a total sum of $45,476.50, itemizing said claim.

The testimony shows conclusively that the case is one coming under the provisions of the Federal Employers’ Liability Act (45 USCA secs. 51-59), and in this court both cousel for plaintiff and counsel for defendant admit that to be the case.

Plaintiff sued, in her alternative plea, as administratrix of her husband’s estate, alleging negligence upon the part of GiffordHill Company, Inc., and that the defendant, the lessor, is legally responsible for said negligence. She also prays for financial support for an adopted daughter living with her, for whose support a portion of her deceased husband’s earnings were used. We will dispose of that matter at this time. There were’ no children of the marriage of plaintiff and her deceased husband, and no one but plaintiff herself can be considered in estimating the amount of the award. She cannot recover for or on account of the adopted child.

Defendant filed an exception of no cause of action, based upon the reason that the contract between defendant and its lessee Gifford-Hill Company, Inc., is for a limited purpose, that of hauling gravel from its pit to Lecompte, and not a general use of the road, and that holding one person responsible for the acts of another is a well-recognized legal fiction, and that in such cases responsibility must be clearly established, and that the rule of law that the owner of a railroad is responsible for the acts of the lessee is a rule always dependent upon the local law, and that the law of this state does not allow recovery of the lessor for acts of negligence of the lessee where the lessee’s right of use of the railroad is limited to a specific purpose, such as hauling of gravel or logs and not allowed to use said railroad for any other purpose.

Counsel for defendant relies upon the case of Johnson v. Louisiana Railway & Navigation Company, 129 La. 332, 56 So. 301, 36 L. R. A. (N. S.) 887. We do not think the case in point. In that case the plaintiff was riding on the train'of lessee by invitation of one of the lessee’s employees and fell off when the train was suddenly stopped. The lessee was operating under a lease that only authorized it to haul logs and not passengers. The syllabus of the case correctly sets out what the court held.

“1. A railroad company which has leased to a lumber company the right to use its tracks only for logging trains, under the superintendence of the lessee, cannot be held liable for the death of one who was riding on a logging train belonging to the lumber company.
“2. A corporation operating a train for the purpose of carrying logs cannot be held liable for the death of one who accepts an invitation of the crew to ride on the train, especially when it was apparent to him that there was danger in so doing.
“3. It is not negligence for an engineer of a logging train, not intended to carry passengers, to suddenly stop his train on getting an emergency signal.
“4. Where one is warned that the position which he has taken upon a logging train is a very dangerous and insecure one, and he is thrown off by the sudden jolting of the train in coming to an emergency stop, and killed, the owner of the train will not be held responsible.”

The case was decided upon the facts of the case, and the court held that the logging company was not negligent.

The general rule of law is that a railroad company is liable for injuries to persons by the wrongful and negligent operation of the cars upon the road, whether operated by itself or by any other corporation, to which it has leased it.

This rule has been adopted by the Supreme Court of this state and is the law governing in all cases arising under the Federal Employers’ Liability Act in Louisiana.

In the case of Taylor v. Louisiana & Northwest Railroad Company, 129 La. 113, 55 So. 732, the court said:

“Where a railroad company leased a portion. of its track to a lumber company, which subleased to a logging company, a workman injured by collision of a hand ear on which he was riding with a train operated by the logging company carrying logs for the lumber company, for which injuries the lessees are liable, is also entitled to recover from the lessor. * * *
“In an action against a railroad company and its lessees for injuries caused by operation of a train by one of the lessees, the judgment should be, not only against the railroad company, but against the railroad company and its lessees in solido.”

The court further said, in that case:

“That the lessor railroad company is also liable in case its lessees are found to have been responsible for the injury and to be liable is not seriously contested, arid is clear under the doctrine of the Muntz case, 111 La. 423, 35 So. 624, 64 L. R. A. 222, 100 Am. St. Rep. 495.”

In the case of Bailey v. Louisiana & Northwest Railroad Company, 129 La. 1029, 57 So. 325, the court said:

“Whether a railroad company shall operate its road by itself or by another is a question for it, within certain limits, to determine; but the determination of that question cannot relieve it of the consequences to others of negligence in such operation.”

In the case of Kansas City Railway Co. v. Nectaux (C. C. A.) 26 F. (2d) 317, 319, a Louisiana case, the court said:

“It is settled that a railroad is responsible to a passenger for damages occasioned by the negligence of a licensee using its tracks. Illinois Central R. R. v. Barron, 5 Wall. 90, 18 L. Ed. 591. The decisions are not harmonious in applying this rule to an employee, but in Louisiana an employee of a railroad permitting another to use its tracks jointly may recover from his employer for injuries caused by the negligence of the agents of the licensee, though the rule is different as applied to the employees of the licensee. It is not necessary that the technical relation of lessor and lessee, in the sense that the entire operation of the road is turned over to the lessee, should exist. The rule is the same if there is contemporaneous joint usage of the road. Ingram v. La. & N. W. R. Co., 128 La. 933, 55 So. 580; Taylor v. La. & N. W. R. Co., 129 La. 113, 55 So. 732; Bailey v. La. & N. W. R. Co., 129 La. 1029, 57 So. 325. A rule of local law imposing liability may be enforced in suits under the Federal Employers’ Liability Act. North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 34 S. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159.”

The lessees in the above-cited cases were limited to the right or privilege of hauling logs over lessors’ road, as in this case the lessee was limited to hauling gravel. We think the above decisions are decisive of the question, and that if deceased was killed through the negligence of the lessee, the lessor, defendant herein, is liable. Therefore the exception of no cause of action was properly overruled.

Deceased was not an employee of the lessee, but was an employee of the lessor, and insofar as the lessee is concerned was a stranger, and his relation to the lessee was the same as the relation between the lessee and the public, and it cannot be denied that if a stranger to both companies had been injured by the negligence of the lessee, the lessor -would have been liable.

Defendant contends that the accident was caused by the negligence of the deceased in going on the trestle when lie could, by going a longer distance, have kept off the trestle, and that when he went on the trestle he assumed the risk attached thereto.

Contributory negligence is not a bar to recovery under the Federal Employers’ Liability Act, and it is pleaded in this case only for the ¡purpose of mitigating the amount of damage. Plaintiff, denying negligence on the part of deceased, pleads that if he was negligent, the defendant had the last clear chance to save the life of deceased and therefore is liable.

Deceased was the section foreman, and his work required him to be on the track of said railroad all the time during work hours; it was his duty to repair the tracks and bridges and keep same in good condition; it necessitated his inspecting the track and bridges and trestles, and he would have been within his rights and where he belonged if he had gone on this trestle at any time to make inspection of it or to repair it. His work required him to be on the track constantly, and in going to and from his home, to and from work, the shortest and most convenient route was down the track and across this trestle; he had been using this route for several years, with the knowledge and consent of his superiors, and had walked it with his superiors. It would be foolish to say that one whose work required him to be on the track all day should leave the track and take a circuitous route home for his meals, and that if he did not that he would assume all risk of any injury received by walking on the track. If his work on this particular day had required him to be a great distance from home and Required the use of a hand car, it could not have been said that he was negligent in crossing this bridge or trestle on a hand car in returning to his home for dinner. Due to the nature of his work, we do not think it can be said that he was negligent in attempting to cross the trestle in going to and from his home for meals at a time when no train vas in sight and where any train that might come would have had ample time to see him and stop before striking him.

The fireman testified that he saw the deceased more than two hundred feet before the train reached the trestle and that he recognized him; that deceased was walking with his head down and did not take any notice of the train; and that the train could have been stopped within eighty or ninety feet at the speed it was going. He did not tell the engineer that a man was on the trestle, nor did he give any warning or signal to the deceased, but states that he thought deceased had sufficient time to get off the trestle. It was clearly 'the duty of the fireman to have notified the engineer and to have given signals by blowing the whistle and ringing the bell and, if necessary, to apply the brakes and stop the train. It is convincing that deceased did not know the train was coming until it was too late for him to save himself, while it is equally as convincing that the fireman, who saw the deceased on the trestle, could have had the train stopped when it was within one hundred feet of the bridge and have saved the life of deceased. The last clear • chance was with the defendant, and it was the duty of the defendant to have stopped the train.

The court said, in the case of Simmons v. Louisiana Railway & Navigation Company, 149 La. 686, 90 So. 24, 28:

“So much was his attention concentrated on his work that the testimony of every witness who saw him points to the conclusion that he heard no signal from, and was wholly unconscious of the approach of, the train; and that he was so unconscious was apparent. The purpose of such signals as may have been given, therefore, failed, and those by whom they were given knew that they had failed, for the engineer admits that up to the last moment, where, at a distance of 40 or 50 feet his view of the foreman was cut off by the tender, he had observed that his eyes were directed toward the tower, from which the concrete was pouring in a steady stream; and the lookout testifies that up to the moment that his view was cut off, at a distance of 15 feet, he had not looked in the direction of the train. If, then, the purpose of a signal be to attract the attention of, and convey information to, the person to whom it is directed, and if he who gives it sees and knows, or has reason to believe, that it fails of its purpose, and a human life is at stake, it seems plain that something else should be done, or attempted; and, in this instance, there appears to have been at least two things that might have been done, to-wit: The whistle might have been blown, and the air brakes might have been applied, as at 40 or 50 feet the foreman, still oblivious to the approach of the train, was cut off from the view of the engineer. But nothmg was done, except to run over the foreman and kill him, and, though it was daylight and he was in plain view of those members of the train crew, and it is said by them that the train was moving at only 2% or 3 miles an hour, not one of them saw him killed, and only one of them (the engineer) ventured to make the guess that he had committed suicide by walking into the train, or that he might have fallen off the platform, 4 feet outside of the west rail, and have been run over on the track between the rails. Our conclusions are that the negligence of the engineer and crew of the train was the proximate cause of the accident, that the decedent was not at fault, and that he did not assume the risk of that negligence. St. Louis, etc.. R. Co. v. Jackson. 78 Ark. 100. 93 S. W. 746. 8 Ann. Cas. 328 and note, 6 L. R. A. (N. S.) 646 and note; Dobyns v. Yazoo & M. V. R. Co., 119 La. 72, 43 So. 934: Bailev v. La. & N. W. R. Co., 129 La. 1029, 57 So. 325; Wirth v. Alex Dussel Iron Works, 140 La. 1056, 74 So. 551.”

The reasoning as set out in the above case is very applicable to this case.

The lower court held that the proximate cause of the accident was the negligence of the train crew in not stopping the train and in not giving the proper signals to attract the attention of deceased, and that the deceased did not’ assume the risk of the negligence of the train crew, and that the accident was caused by the negligence, of the lessee of defendant, and that defendant was responsible for their acts.. We think the finding of the lower court is correct, in that respect.

As to the amount of damages, the lower court said:

“The amount claimed for pain and suffering is $10,000.00. Dr. Lett who treated Mr. Barnes testified as to the nature of the injuries, the treatment given, the extent of pain and suffering and duration of time between the injury and death. Evidently the man suffered intensely, and for the length of time he lived, undergoing such intense suffering, the amount of damages in this respect should be substantial. The Court feels that $4,000.00 is not an excessive amount and this sum will be awarded.
“Defendant’s counsel insists urgently that compensatory damages should be reduced greatly from the earnings of the deceased on account of the fact that at the time of bus death and for some time prior, support was being given to an adopted child and the aged father of Mrs. Barnes in the home. The rule of law laid down in the decision cited is that the cash value is the estimate of what the deceased would have contributed to the support of his beneficiaries during the term of his life expectancy, according to the evidence in the case. It is true that the adopted child and the aged father of Mrs. Barnes will Rave to be eliminated from consideration ms beneficiaries, as they cannot be considered as legal beneficiaries of Mrs. Barnes.
“The Court can only estimate the amount ' of the husband’s earnings which went to the support of the wife. According to the testimony, Mr. Barnes spent very little upon himself, and verv little was evidently spent upon the father of Mrs. Barnes. Both of these men were old and lived simple lives, which necessarily called for small expenditures of cash money. The adopted child is quite young, only 9 years of age, living in the home and going to school. The actual amount of money spent for the child was likely small. Mr. Barnes was earning $1372.80 per annum. Taking into consideration the circumstances of the mode and manner of living and the ages of the husband, the father and the adopted child, the Court feels that fully the sum of $900.00 of the $1372.80 would have contributed to the support of plaintiff, and that estimate will be -fixed.”

The rule of law as to who is entitled to recover and the mode of arriving at the amount as set out in the opinion of the lower court is correct, but we think the .amounts allowed are excessive.

In accordance with the jurisprudence of this state, we think the amount that should be allowed for the pain and suffering of the deceased should be reduced to $2,500. and the compensatory damages to the wife should be reduced from $900 of the $1,-372.80 received by deceased per annum, to $800, that would have been contributed to the support of the plaintiff per year.

Deceased was 70 years of age, and being engaged as a section foreman rated him up four years, making the basis to figure his life expectancy from as 74 years. On this basis, the life expectancy of deceased .is 6 7/10 years. Using the rule laid down in the case of Jones v. Kansas City So. Ry. Co., 143 La. 307, 78 So. 568, the court fixes the cash value of $800 per year for 6 7/10 years to be as follows:

Year Amount Rate 1 $800 1.05
. 2 800 1.10
3 800 1.15
4 800 1.20
Discount Cash Value
39.10 $ 761.90
72.73 727.27
105.22 694.78
133.34 666.66
5 800 1.25 160.00 640.00
6 800 1.30 184.70 615.30
7 560 1.35 145.19 414.80
■ $4520.72

Under the law there can be no recovery for deprivation of the comfort, society, etc. nor for mental anguish, etc., nor for doctor’s bill, funeral expenses, etc., as claimed by defendant, and same were properly rejected by the lower court.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by reducing the amount of judgment in favor of plaintiff for pain and suffering of the deceased from $4,000 to $2,500 and for loss of financial support from $5,086.97 to $4,520.72, and as so amended that the judgment of the lower court be affirmed.

Costs of appeal to be paid by plaintiff and appellee.


text:
    No. 3762
    Second Circuit
    WILLIAMS v. MOST WORSHIPFUL ST. JOHN’S GRAND LODGE OF ANCIENT FREE AND ACCEPTED MASONS FOR THE STATE OF LOUISIANA
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)

      Isaac Wahlder, of Alexandria, attorney for plaintiff, appellee.
    Charles M. Roberson, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, Farie Williams, widow of Leroy Williams, and beneficiary under an insurance policy issued on the life of her husband by defendant, Most Worshipful St. John’s Grand Lodge of Ancient Free and Accepted Masons for the State of Louisiana, a fraternal benefit association, brought this action on the death of her husband to recover on the policy, and defendant appeals from a judgment rendered in favor of plaintiff.

Deceased was a member of a subordinate lodge, and there is a provision in the articles of defendant association that monthly dues or premium on policies held by members of the subordinate lodges must be paid to the subordinate lodge in time for the secretary of the subordinate lodge to remit to the Grand Lodge not later than noon of the 10th of the month in which the premium was due, and the defence interposed is that deceased had not paid the premium due on the policy for the month of February, and that the secretary of the subordinate lodge had not remitted to the Grand Lodge.

The evidence established that Leroy Williams had been ill for some time, and that the monthly premiums due had been paid by the subordinate lodge of which he was a member, and the secretary of the subordinate lodge testified that there had been drawn from the treasury of the lodge the amount of premium due by the deceased for the month of February, and that the same had been paid to him prior to the 10th of February, 1929, but the evidence does not show that the amount was remitted by the secretary to the Grand Lodge. It was shown, however, that the remittances from the subordinate lodge of premiums due on policies issued by the Grand Lodge to members of the subordinate lodge had always been remitted by the secretary of the subordinate lodge, and we are of the opinion that the secretary of the subordinate lodge must, under the provisions of the articles of the association, as well as under the evidence showing the course of business between the subordinate lodge and the Grand Lodge, be regarded as the representative of the latter. The evidence establishing that the premium due by the deceased was paid to the secretary of the subordinate lodge of which the deceased was a member, prior to the 10th of the month in which the insured died, it was sufficient, and the policy was in effect on the 12th day of February, the date of the insured’s death. Edwards v. Grand United Order, 6 La. App. 693.

The judgment appealed from is therefore affirmed.


author: WEBB, J. DREW, J.

text:
    No. 3642
    Second Circuit
    UNION INDEMNITY CO. v. CROW
    (March 24, 1930. Opinion and Decree.)
    (July 5, 1930. Opinion and Decree on Rehearing.)
    John T. Carpenter and John R. Pleasant, of Shreveport, attorneys for plaintiff, appellee.
    J. Fair Hardin, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

This action arises out of a collision between a motortruck owned by the Schuster Wholesale Produce Company which was, at the time of the accident, being operated by one of its employees, and an automobile owned by defendant, J. B.. Crow, which was being driven by his minor son.

The motortruck which x was damaged in the collision was insured by the plaintiff company, and this suit was brought to recover an amount alleged to have been paid by plaintiff to the Schuster Wholesale Produce Company to cover the damage insured against under the policy which provided that, in case of payment of loss under the policy, the insurer shall be subrogated to all of the rights of the assured against any person, etc., as respects such loss.

The defendant excepted that the petition failed to state a cause of action, in that plaintiff failed to allege that the Schuster Wholesale Produce Company had subrogated plaintiff to its rights at the time of the alleged payment, and, the exception being overruled, defendant, under reservation of his rights in the exception, answered, denying plaintiff’s allegations.

On trial, judgment was rendered against the defendant for the amount claimed. Defendant appeals, and urges that the exception of no cause of action should have been sustained, and, further, that the evidence did not show plaintiff had paid the Schuster Wholesale Produce Company anything under the policy for the damage alleged to have been sustained, and, further, that the evidence established that the driver of the truck was negligent and that his negligence was the proximate or a contributing cause of the collision.

We are of the opinion that the exception of no cause of action was properly overruled, as plaintiff alleged that it had paid the Schuster Wholesale Produce Company the amount claimed, to cover the damage insured against under the policy, and, if so, it became subrogated under the terms of the policy to the rights of the Schuster Wholesale Produce Company against the defendant. Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766; Maryland Casualty Co. v. Muller, 9 La. App. 700, 119 So. 764.

The evidence as to the question of negligence was, as usual, conflicting, but we do not deem it necessary to review the evidence, as to that question, as plaintiff failed to offer any evidence whatsoever to prove its allegation that it had paid the Schuster Wholesale Produce Company, and, defendant having denied any payment had been made, plaintiff’s demands should .have been rejected.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed and avoided, and that plaintiff’s demands be rejected at its cost.

ON REHEARING

DREW, J.

This action arises out of a collision between a motortruck owned by the Schuster Wholesale Produce Company, which was at the time being operated by one of its employees and an automobile owned by the defendant, which was being driven by his minor son.

The motortruck, which was damaged in the collision, was insured by the plaintiff company, and this suit was brought to recover an amount alleged to have been paid by plaintiff to the Schuster Wholesale Produce Company to cover the damage insured against under the policy, which provided that, in case of “payment of loss under the policy, the insurer shall be subrogated to all the rights of the assured against the person, etc., whose acts were the cause of the lo'ss and damage.

The defendant excepted that the petition failed to state a cause of action in that plaintiff failed to allege that the Schuster Wholesale Produce Company had subrogated plaintiff to the rights of the assured at the time of the alleged payment. The exception was overruled by the lower court, and, under his reservation of his rights, the defendant answered denying liability.

The lower court rendered judgment in favor of plaintiff, as prayed for, and defendant has appealed to this court.

This court rendered judgment reversing the lower court, however, sustaining the lower court in its ruling on the exception of no cause of action. A rehearing was applied for and granted, and the case is now before us on rehearing.

The former judgment of this court on the exception of no cause of action, wherein same was overruled, was correct, and we now reinstate and adopt as the opinion of this court that part of our former judgment in so far as the same applies to the exception of no cause of action, and pass on to the merits of the case.

The defendant’s car and the Schuster truck were both traveling in the same direction, north on Louisiana street in the city of Shreveport. Both were traveling at a moderate rate of speed with the defendant’s car in the lead, the Schuster car immediately behind it, and the car of the witness, Lucas, immediately behind the Schuster truck. As the defendant’s car reached the intersection of the alley with Louisiana street, the driver of same attempted to turn into said alley, a left-hand turn, and at the same time the Schuster truck was attempting to pass defendant’s car. The result was a collision and the turning over of the Schuster truck, with the resulting damage sued for herein. Defendant’s car was only slightly damaged, having the hub cap of the left front wheel knocked off and the fender bent.

Plaintiff contends that the defendant was negligent in not giving the signal for making a left turn or looking to see if any one was attempting to pass him, and offers, in support of his contention, three witnesses. The driver of the car who testified that he blew his horn very loud before attempting to pass the defendant’s car, and that young Crow, driver of defendant’s car, did not give any signal for the turn. He claims to have nearly passed the defendant’s car when the said young Crow deliberately turned into him. His next witness is Mr. Lucas, who was directly behind the Schuster truck and who testifies that the driver of the Schuster truck did not blow his horn, and thsrt he did not see young Mr. Crow give any signal for the turn. It is shown by the testimony of Mr. Lucas that the Schuster truck had a cab on it and high side planks and that it was between Lucas and the defendant’s car until the very act of turning had begun. At the time young Mr. Crow should have given his signal for the turn, it would have been impossible _ for Lucas to have seen either the signal or the car and his testimony on that point is worthless. The only other witness offered by plaintiff was J. B. Crow, Jr., the driver of the defendant car, who testified positively that he did give the signal for the left-hand turn before arriving at the intersection, and that the tips of his fingers were injured by the Schuster truck in attempting to pass him while his hand was extended.

Defendant offered one eye witness who testified that J. B. Crow, Jr., did give the signal to turn, and that the driver of the Schuster truck did not blow his horn, also the testimony of two policemen who testified that the Schuster driver did not blow his horn. J. B. Crow, Sr., corroborates his son in regard to his fingers being struck by the Schuster truck, and an insurance inspector testified that the driver of the Schuster truck admitted to him that he did not blow his horn.

The preponderance of the testimony is that J. B. Crow, Jr., on or before reaching the point of the intersection of the alley and Louisiana street, gave the proper signal for a left turn; that he was traveling at a moderate rate of speed, and, in attempting to make the turn after complying with the law, that the accident occurred due to the Schuster truck attempting to rush by him. The driver of the Schuster truck either did not see the signal, he having only one eye, or he was so close to the defendant’s car that he could not stop, and the only alternative was to try to rush by. The testimony is that the Schuster truck was driving within a few feet of the defendant’s car, and, undoubtedly, too close behind to stop. The preponderance of testimony, in fact all the testimony, with the exception of that of the driver of Schuster’s truck, is that he sounded no warning of his intention to pass. The law is clear that, when desiring to pass another vehicle, you must give the necessary signal by blowing the horn, etc. This, Schuster’s driver failed to do. It is argued that J. B. Crow, Jr., is a deaf mute, and a signal would have been of no avail. That may be true, but, if he had perfect hearing, it would have been the same, for no signal was given, and it is not shown that the driver of the Schuster truck knew that defendant’s driver was deaf. J. B. Crow, ■Jr., testified that he can hear a little in the left ear. It is not shown that he could not have heard a horn on an automobile, if blown as loud as claimed by the driver of Schuster’s truck. The extent of his hearing is not shown by the evidence other than his own testimony.

We are unable to find from the testimony where J. B. Crow, Jr., violated any traffic law, and are convinced that the accident was caused by the driver of Schuster’s truck driving too close to defendant’s car to stop after the signal for a left turn was given, if he saw the signal, and in his attempt to rush by the Crow car in violation of the law and without giving any warning of his attempt to pass. The driver of Schuster’s truck was intent on making the green light aT the street intersection and took a chance on getting by the defendant’s car.

Plaintiff has completely failed to make out its case with a preponderance of evidence and the preponderance of evidence is with the defendant.

■ It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the plaintiff’s demands be rejected at its cost in both courts. i


author: ODOM, J.

text:
    No. 3809
    Second Circuit
    HARPER v. OUACHITA NEHI BOTTLING CO.
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)
    Julius T. Long, of Shreveport, and D. J. Anders, of Winnsboro, attorneys for plaintiffs, appellants.
    Munholland & Munholland, of Monroe, attorneys for defendant, appellee.
   ODOM, J.

These plaintiffs were both seriously injured when the Ford car in which they were riding collided with defendant’s motortruck on a highway. They sue for damages and appeal from a judgment rejecting their demands.

Mr. Harper, who was sixty-four years old, and his daughter, Inez, 'who was fifteen, left Winnsboro late in the afternoon on October 13, 1928, in a Ford car and drove north on a graveled highway to Crowville, about eight miles away, the daughter driving with the father on Uie front seat with her. They reached Crow-ville at about 7:30, after dark, and at a point about twenty feet south of the Bass garage and filling station, which is east of and adjacent to the highway, and therefore on their right-hand side, their car collided with defendant’s truck, which was being driven in the opposite direction, or south, towards Winnsboro. Plaintiffs allege and contend that the truck driver left his side and turned southeast, angling across the road, and ran the truck against their car over on the east, or their right-hand side of the road. Defendant alleges and contends that Miss Harper, driver of the Ford, left her side of the road, turned to the left, angling across in a northwesterly direction, and ran the Ford against the truck over on the west side of the road — defendant’s right-hand side.

Crowville is a small village or settlement on the highway with several business establishments such as stores, filling stations, a garage, and an icehouse, situated along the edge or side of the road, and we gather from the testimony that there are also residences located near the road. The road is straight and is twenty-four feet wide, and there was, therefore, room enough for the Ford and the truck to pass if each had kept its side. Each vehicle was equipped with lights. The driver of the Ford saw the truck, or rather its lights, and the driver of the truck saw the Ford, and, notwithstanding that, the two vehicles collided. Plaintiffs contend that the collision was due to the fault and negligence of the truck driver; defendant contends that it was due solely to the fault and negligence of Miss Harper, who was driving the Ford.

A careful reading of .the voluminous record convinces us that the collision was due to the fault and negligence of plaintiffs. The testimony establishes beyond question that the Ford car left its side of the road, turned tq the left and ran into the truck over on its side. Young Greer, the truck driver, says that is the way it happened. Miss Harper and her father both testified to the contrary; but they are unquestionably mistaken. There would be room for doubt on this point, in view of the conflicting testimony, if the physical facts did not prove it.

The vehicles went together at an angle —not head-on. The left front of the Ford collided with the left front wheel of the truck. That is admittedly true. When the vehicles came to rest, they were both over on the east or plaintiffs’ right-hand side of the road. The truck was standing in the road angling about forty-five degrees facing southeast, with the front wheels near the ditch at the edge of the road. The Ford was out of the road, with its rear end across the ditch and its front wheels in the ditch. All the testimony shows that the truck shoved the Ford back about fifteen feet. Counsel for plaintiffs argue that these facts prove their case — that is, that the truck left its' side of the road, ran angling across and hit th'e Ford over on its side of the road and that the Ford did not leave its side at all, did not swerve. Both Miss Harper and her father testified that the Ford when struck was not only close to its side of the road, but was headed straight up the road and did not swerve. But, in view of other undisputed testimony and the physical facts, that cannot, we think, be true.

All the testimony shows that the truck immediately prior to the collision was moving south on the west side of the road and that it turned to the left and went angling across at about forty-five degrees to where it stopped after the collision, and that, in going across, it shoved the Ford back, not to the side, but back. Admittedly, it was the front ends of the vehicles which collided. Now if the Ford had been going straight ahead, north, when the truck, going angling forty-five degrees across, struck it on the front end, the front end of the Ford would have been knocked or shoved off the road farther than the rear end. The rear end of the Ford was not touched, and only one front wheel of the truck collided with the Ford and that at the front end. The back end of the Ford was not hit by the truck, and it was not shoved sideways off the road. The Ford, when it came to rest, was across the ditch, except the front wheels which were in it. Plaintiffs proved that by their witnesses De Witt Harper, a brother of one of the plaintiffs and the son of the other, who was called by plaintiffs, makes this clear. On page 101 of the testimony, he said:

“Well, the car my father and sister were in was completely across the ditch except the front end was in the ditch on their right hand side of the road and the truck, the front end was jammed against it.”

Mr. Fox, who was riding in the Ford with the Harpers, said (page 65 of the evidence) that the truck pushed the Ford backwards into the ditch, and on page .66 was asked if the Ford was knocked across the ditch, and he said:

“Yes, in the ditch I don’t know — the back' end' wasn’t up on the bank on the other side; the ditch was shallow there. I believe the front wheels were down in the ditch.”

Mr. Spearman, another witness called by plaintiffs, said (on page 131):

“The wrecked car was knocked on the east side of the road, the rear being knocked across the ditch on the east, and the front wheels of the car was in the ditch and the left front wheel spokes broken in it. * * *”

As stated, when the vehicles came to rest, the left front wheel of the truck was jammed against the front end of the Ford ion its left front end. The witnesses, in speaking of the collision, say that the truck "pushed,” “shoved,” or “knocked” the Ford back across the ditch, not sideways across it. In other words, the Ford was rolled back and left with its front wheels in the ditch and the rear wheels over across. For this to happen, the Ford must have been fronting at an angle across the road while being shoved back. It could not have been fronting straight north ,up the road; if' it had been, the impact would have shoved the front end off the road and the front end would have been farther over than the rear end. This view is in accord with defendant’s theory as detailed by the truck driver, Greer. He says that he was proceeding south on his right-hand or west side of the road; that he saw the Ford coming towards him; that he was not blinded by the lights; and that, when some distance away, he saw the Ford swerve to its left, angling across the road towards him, and he assumed that the driver would turn back to the right-hand side, but she did not; that the left front wheel of plaintiffs’ car hit the left front wheel of the truck and knocked it back under the fender which caused both front wheels of the truck to cut to the left, angling southeast across the road; that the impact broke the steering device of the truck so that he could not cut the wheels to the right; that it was a heavy truck, heavily loaded, and that its momentum carried it angling across the road shoving the Ford back. The mechanic and all others who testified on the point said that in some way the front wheels of the truck were literally locked in this angling position, and some say that they had to be pried apart with a bar of iron, although the wheels would revolve. When the wheels became set in that position, the truck necessarily moved at an angle across the road. This theory is consistent with the physical facts which we have mentioned, that is, that the Ford was backed across the road and over the ditch at an angle. It having been shoved back at an angle, it must have been going at an angle when the collision took place.

Miss Harper and her father say that their car did not turn across the road. They are no doubt honest in that statement, but, as we have said, they are unquestionably mistaken. The facts are, as stated by themselves, that they were so completely blinded by the lights of the truck that they could not tell what course their car took immediately prior, to the collision. They both say they were blinded. Miss Harper says that she ran fifty or sixty feet while she was blinded by the lights of the truck, that she could see practically nothing except the lights; that she leaned to the right towards her father trying to keep the lights from her eyes. Blinded and confused as she was, she could not tell just what direction the car took. We think that when she leaned over towards her father, she momentarily and unconsciously lost control of the car, and that it swerved to the left across the road.

Defendant attempted to prove that Miss Harper deliberately turned to the 'left in order to stop at her brother’s store, which was on the left side of the road farther up. The testimony to that effect is not convincing. We accept the testimony of plaintiffs that they intended to stop at the Bass garage, which was on the east side of • the road.

There is other testimony and other physical facts tending to support defendant’s contention that plaintiffs were at fault and that the collision took place over on the west or defendant’s side of the road. Mr. Fox was a guest passenger in the Harper car, riding on the back seat. He was paying but little attention, did not see the truck until the two vehicles were almost together. However, we are convinced that he thought Miss Harper was at fault. He was a witness in the case called by plaintiffs and was asked if he did not state after the accident that she was at fault, and he said that he did not remember. But after the accident he told Moore and Jackson that she was. He told Ezell that from the “leaning of the car” it must have turned to the left.

Again, there is testimony that there were skid marks or scars on the road west of the center where Greer says the collision took place. After the collision, the truck was rolled back across the road to the west side, and it followed closely the tracks it had made when it crossed, because the front wheels were still set at the same angle. People had tramped the road and no doubt cars had passed before these observations were made, and the marks on the east of the center of the road were practically obliterated. But on the west of the center near where the truck was standing after being moved back the skid marks were plain. One witness said that the surface of the road was plowéd up.

The truck was loaded with “Nelli” bottles (Nehi is a cold drink). Bottles were picked up from the ditch on the west side of the road and put back on the truck. Evidently they fell from the truck at the moment of the collision. If the collision had taken place on the east side of the road, as plaintiffs claim it did, it is inconceivable that the bottles would have fallen into the ditch on the west side of the road. The windshields of the truck and of the Ford were shattered and bottles were broken. There was broken glass all over the road, east side, center, and west side.

We have - considered plaintiffs’ contention that there was a car parked on the west side of the road in front of the Bass garage, and the contention that the driver of the truck, in order to miss this parked car, swerved to the left and ran against the Ford. The testimony as to whether there was a parked car there is very conflicting. Our conclusion, however, is that there was. Mr. Bass, the owner of the garage just across the road, who was at his place of business at the time, but did not see the collision, says the car was there. He was very positive in the statement and his testimony, taken in connection -with that of other witnesses, convinces us that a car was parked there. But the presence of that car did not cause the truck driver to swerve. He says that he did not see it. If his testimony on that point be discredited, the fact remains that the.Harper car turned to the left across the road and the collision took place over on the west side.

The district judge in a written opinion reviewed all the facts and held that under ■the facts plaintiffs cannot recover. We think his judgment is correct, and it is therefore affirmed, with all costs. j


text:
    No. 3801
    Second Circuit
    RUSTON LUMBER & SUPPLY CO. v. BECKHAM ET AL.
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)

      Barksdale, Warren & McBride, of Ruston, attorneys for plaintiff, appellant.
    J. W. Elder, of Ruston, and B. K. Watson, of Marion, attorneys for defendants, appellees.
   WEBB, J.

In this action plaintiff, Ruston Lumber & Supply Company, a partnership, seeks to recover judgment for an alleged balance due _on the purchase price of building material sold to John Chilcote, a building contractor, and used by him in executing a contract entered into by Chilcote with the owners of the property, the community existing between H. H. Beck-ham and wife, Wilma Beckham, and for a like judgment against the owner of the property, with recognition of a privilege on the property and improvements to secure the payment of the judgment, interest, and costs.

The action, as against the community, and for recognition of a privilege on the property and improvements, is based on the provisions of section 12 of the building-statute, Act No. 298 of 1926, under which the furnisher of material to the contractor, who complies with the provisions of the statute, obtains the right to proceed against the owner of the property for the price of the material furnished, and for recognition of a privilege on the property and improvements to secure the payment of the judgment, where the owner of the property has failed to record the contract and require bond of the contractor as required by the statute.

There was not any defense by the contractor, but Beckham and wife denied plaintiff’s allegations, and also pleaded that Chilcote was the agent of plaintiff, and that the latter was the real contractor and liable in solido with Chilcote for the performance of the contract and work undertaken by Chilcote, and that the contract had not been complied with and work completed, and that defendants had paid out $1,000 above the contract price, and would have to expend $400 to complete the work, and were entitled to recover judgment against plaintiff and Chilcote, in reconvention, for $1,400; and defendants Beckham and wife further alleged that they had instructed plaintiff not to furnish Chilcote with material in excess of the value of $1,600, and that plaintiff had acceded to the request, and that defendants Beckham and wife had tendered to plaintiff $150, the difference between the amount which plaintiff had been paid, and $1,600, and they prayed that plaintiff’s demands be rejected, and for judgment against plaintiff, in re-convention, in the sum of $1,400.

Plaintiff moved to strike out the special pleas, and, in the alternative, that defendants should be ordered to elect, and, the motion to strike out being overruled, and the motion to elect referred to the merits, plaintiff, on trial, objected to any evidence in support of the special pleas, which was overruled, and judgment was rendered in favor of plaintiff against Chilcote as demanded and as against Beckham and wife in the sum of $150, without cost or interest, and rejecting plaintiff’s demand for recognition of a privilege on the property.

Plaintiff appeals, and urges that the court erred in overruling the motion to strike out and in referring the motion to elect to the merits, and, further, in overruling plaintiff’s objection to any evidence in support of the special pleas, and, on the merits, appellant urges that it should have had judgment against Beckham and wife as demanded, and that in any event the court erred in refusing to allow judgment recognizing a privilege on the property for the amount of the judgment and tor costs.

Considering the motions to strike out and to elect, and the objection to the evidence, it is urged that the special pleas were inconsistent with the denial of liability and the plea that Chilcote was the agent of .plaintiff and the latter the real contractor, and that the demand in reconvention was inconsistent with the tender, and that the plea that defendants had instructed plaintiff not to furnish Chilcote with material in excess of $1,600 was not any defense in the absence of any allegation that Chilcote was the agent of defendants or that plaintiff and defendants had agreed the latter would be liable for the material furnished to Chilcote to the extent of $1,600, without regard to the liability of defendants under the statute.

While we are of the opinion that defendants’ pleas were inconsistent, and that the motion to strike out as well as the motion to elect and the objection to the admission of any evidence in support of the pleas should have been sustained (Cross, Pleading, p. 64, No. 57), yet in view of the fact that there was not any evidence offered in support of the plea that Chilcote was the agent of plaintiff, or that the latter was the real contractor, or in support of the re-conventional demand based upon the plea, we shall consider the cause on the merits.

The evidence established that the material was furnished by plaintiff for the purpose of being used in executing the contract entered into by Chilcote with Beckham and wife, and that the material was used in improving and enhancing the value of the property of the community, and, the owner of the property having failed to comply with the statute by recording the contract and requiring bond of the contractor, and the evidence establishing that plaintiff complied with section 12 of the statute, plaintiff acquired the right to proceed against the owner and the property, and to recover judgment against the owner with recognition of a privilege on the property (Jahncke Service, Inc., v, McGuire, 9 La. App. 698, 119 So. 765), unless there was an agreement to the contrary.

There was not any evidence offered to show that plaintiff agreed to waive its rights, and the only 'evidence introduced tending to show any understanding between plaintiff and defendants Beckham and wife which could affect the rights of plai-ntiff was that Beckham and wife has instructed plaintiff not to furnish Chilcote with material in excess of the value of $1600 and that plaintiff had agreed not to do so. There is not, however, any suggestion that there were any contractual relations between plaintiff and Beckham and wife, or that Chilcote was the agent of Beckham and wife; and, while it may be that one who furnishes material to a contractor to be used and which was used as in the present instance, who may acquire the right to proceed against the owner of the property or the property itself for payment of the amount due, may by his actions waive or limit the extent of the right, we do not think the present case presents such an instance.

Plaintiff’s right to proceed as it has done is based upon the statute, while the defense is based upon an agreement which was admittedly without consideration and which at most could be considered as an agreement that plaintiff would superintend the work undertaken by Chilcote, which the evidence does not indicate was contemplated by the parties; and we are of the opinion that plaintiff should have had judgment against the owner of the property with recognition of a privilege thereon to secure the payment of the judgment.

Counsel have not discussed the right of plaintiff -to a personal judgment against Mrs. Beckham, but it was alleged and the evidence established that the property belonged to the community existing between Beckham and wife, and the judgment should be restricted to the contractor and the husband, the piaster of the community, with recognition of the privilege on the property.

It is therefore ordered that the judgment appealed from be amended, and that plaintiff, Ruston Lumber & Supply Company, have and recover judgment against defendants John Chileote and H. H. Beckham in solido in the sum of $752.42, with legal interest thereon from judicial demand until paid, and all cost of suit, with recognition of a privilege on the following described property, to-wit: A lot 62% feet wide north and south, by a depth of 150 feet east and west, more particularly described as follows: Beginning at southeast corner of the following described property, to-wit: Across the section line between the N. E. % of N. E. %, Sec. 25, and N. W. % of N. W. Vi, Sec. 24, Tp. 18 N., R. 3 W„ being a lot adjoining and on the west side of Vienna and Ruston road, beginning 60 feet west; of northwest corner of Mrs. Mattie Watts’ lot on east side of said road and running north parallel with said road 209 feet, thence west 300 feet, thence south 209 feet, thence east 300 feet to place of beginning; and from this southeast corner run north 62% feet, thence west 150 feet, thence south 62% feet, thence east 150 feet to point of beginning, being same lot J. B. Staples acquired from A. A. Hedgepeth, recorded in Book VV, p. 275, of Conveyance Records of Lincoln parish, La., being the same property now standing in the name of Mrs. Wilma Beckham as per deed from J. B. Staples, of date May 18, 1327, as recorded in the Conveyance Records of Lincoln parish, La., to secure the payment of the judgment, interest, and cost, and that the said property be seized and sold and the proceeds applied to the judgment, interest, and cost.