author: HIGGINS, J. JANVIER, J.

text:
    No. 13,962
    Orleans
    LEMMLER ET AL. v. FABACHER
    (February 15, 1932. Opinion and Decree.)
    (March 7, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Raoul Sere, Jr., of New Orleans, attorney for plaintiff, appellee.
    M. C. Scharff, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff, as surviving parent, individually and as natural tutrix of her two minor daughters, sued the defendant to recover compensation alleged to be due under the compensation statutes of this state for the death of her minor son, who was killed on December 18, 1929, while employed by defendant, who was engaged in the bakery business, in the capacity as driver or chauffeur of a Ford truck used in delivering bread.

The defendant filed an exception of no right qr cause of actien as to the claim in behalf of the sisters of the deceased on the ground that the compensation law vests any right there may be to recover solely and exclusively in the mother, as surviving parent, and denied liability, interposing the following defenses:

(1) That driving an automobile truck is not one of the enumerated hazardous trades, businesses, or occupations covered by the provisions of the compensation statute.

(2) That the deceased came to his death as a result of operating the truck at an excessive rate of speed, in violation of the traffic ordinance of the city of New Orleans, and, therefore, was guilty of a deliberate breach of a statutory regulation affecting safety of life or limb.

(3) That the deceased was injured and died as a result of his deliberate failure to use an adequate guard or protection against accident provided by his employer, the defendant, in not applying the pedal and emergency brakes on the truck in order to bring it to a stop.

(4) That the deceased willfully injured himself and caused his death, and

(5) That the mother was not wholly or partially dependent upon her son for support.

The exception of no right or cause of action was sustained and the suit dismissed as to the two sisters, and there was judgment in favor of the mother individually, as prayed for, and for $150 funeral and contingent expenses in connection therewith. Defendant alone has appealed.

In this court defendant, in the alternative, further complains:

(A) That in the event this court should hold the defendant liable, the trial court improperly calculated the compensation, allowed because the boy boarded at home and his mother bought his clothes out of his earnings, for which proper allowances or deductions should be made, and,

(B) That the compensation statute limits the funeral expenses to $100, and, as the lower court allowed the sum of $150, it should be reduced to $100.

The record shows that the defendant is engaged in the bakery business and employed the plaintiff’s minor son, age 17 years, to. drive a Ford truck for the purpose of delivering bread to customers for a wage of $12 per week; that on December 12, 1929, at about 5:30 a. m., while the deceased was delivering bread in the truck, it ran into an iron post at the intersection Of Washington avenue and Broad street, this city, that the boy was badly crushed and injured and died as a result thereof on December 18, 1929.

(1) Taking up the defenses urged below in their order, it is sufficient to say that both the Supreme Court and this court have held that the operation of a motor-truck by a driver or chauffeur is hazardous and comes within the provisions of the compensation statute because it involves the operation of machinery. Haddad v. Commercial Motor Truck Co., 146 La. 899, 84 So. 197, 9 A. L. R. 1380; Plick v. Toye Bros. Auto & Taxicab Co., Inc., 13 La. App. 525, 127 So. 59. Furthermore, “bakeries” are one .of the hazardous trades, businesses, and occupations expressly named in paragraph “a” of subsection 2 of section 1 of Act No. 20 of 1914, as covered by the statute.

(2) The Supreme Court and this court have also held that failing to obey a municipal traffic ordinance regulating the safety of life or limb is not a breach of the statutory regulation provided for in section 28 of Act No. 20 of 1914 because that provision relates to a state law and not a municipal ordinance. Consequently the violation of a traffic ordinance by the deceased in operating the truck at an excessive speed is not a defense. Plick, Wife of Adams, v. Toye Bros. Auto & Taxicab Co., 169 La. 44, 124 So. 140; Plick v. Toye Bros. Auto & Taxicab Co., Inc., supra.

(3) There is nothing in the record to show that the deceased deliberately failed to apply the pedal or emergency brakes. The only evidence on this issue is the testimony of one of the defendant’s witnesses that the boy was driving at about fifty miles an hour at the time he ran into the post and made no effort to put on the brakes in order to avoid the collision. The most that can be said for this evidence is that it shows that the boy negligently 'failed to apply the brakes, but certainly would not be sufficient to prove the special defense that he deliberately failed to apply the brakes within the meaning of the provisions of section 28 of Act 20 of 1914.

(4) The record is barren of any evidence tending to show that the boy willfully intended to injure himself by running into the post. This contention is without merit, because, conceding that the boy was guilty of gross negligence, it cannot be said that he willfully injured himself, or willfully took his life. Negligence qn the part of an employee is expressly excluded as a defense by the compensation act.

(5)It is true that surviving parents are not persons presumed, under the provisions of the compensation law to be wholly dependent upon a deceased son for support, and that such persons as plaintiff must prove dependency by a preponderance of evidence in compensation cases. Edwards et ux. v. Standard Gin & Mfg. Co., 12 La. App. 153, 125 So. 593; paragraphs (A), (B), (C) and (D) of subsection 2 of section 1 of Act No. 242 of 1928, amending section 8 of Act No. 20 of 1914. But the question of whether or not the plaintiff was wholly dependent upon her son for support presents an issue of fact, which was resolved by the trial court in favor of the mother, and, after reading the record, we are convinced of the correctness of this conclusion because the evidence shows that the mother was a widow for ten years, had two minor daughters dependent upon her for support, and that her minor son gave her his entire wages of $12 a week, all of the members of the family living in the same residence. Plick v. Toye Bros. Auto & Taxicab Co., supra; Chauvin v. American Mutual Liability Ins. Co., 17 La. App. 187, 134 So. 450, 454.

(A) The argument that, in computing the amount of compensation, an allowance for the living expenses of the deceased should be deducted from the amount of his contributions to his dependent mother, is without merit. This court, in the case of Chauvin v. American Mutual Liability Ins. Co., supra, decided that issue adversely to defendant’s position herein. The court said:

“The law, for reasons which have been often stated, is designed to make up, to the extent mentioned in the act, the income derived from the deceased wage earner, and does not concern itself with the manner in which the dependent expended the funds contributed. Our conclusion is that the basis of computing the compensation due plaintiff is the full amount of his weekly contribution.” See, also, Plick v. Toye Bros. Auto & Taxicab Co., supra.

(B) As to the contention made in this court by defendant that the amount of $150 allowed for funeral expenses should be reduced to $100, the record shows that the funeral bill and incidentals amounted to the sum of $296, which sum was paid by the mother out of a small life industrial insurance policy on the life of' deceased. Paragraph 5 of section 8 of Act No. 242 of 1928, p. 388, amending section 8 of Act No. 20 of 1914 and Act No. 85 of 1926, .provides as follows:

“* m- * in every case of death, the employer shall pay or cause to be paid reasonable expenses of the burial of the employee, not to exceed $100.00 and the reasonable contingent expenses in connection therewith not to exceed $50.00.”

The plaintiff prayed for $150 covering these items, and the evidence shows that, under this provision of the act, she is entitled to recover the same.

For the reasons assigned the judgment appealed from is affirmed.

JANVIER, J.

(dissenting). I agree with all my associates have said, except that I am not prepared to say that in all cases in which a child, who is a wage-earner, lives with a parent and turns over to the parent the child’s entire earnings, the whole amount should be considered as a contribution to the parent.

In determining what amount is contribution and what amount is payment for value received where the wage-earner is furnished lodging and meals by the parent, there should be deducted from the total amount handed to the parent a sum representing a fair value of the board and lodging, the remainder would represent the contribution to the parent. The fact that it may be difficult to determine what is a fair value for board and lodging does not alter the legal situation.

Let us assume that a son earning $25 per week lives with his mother, and, by agreement, pays her $10 a week as board, and contributes the other $15 a week to her for herself. It is plain that in determining the amount of compensation to which the mother would be entitled, if the son should be killed in the course of, and by accident arising out of, his employment, the sum paid as board should not be considered as a contribution to the support of the mother. If, however, under identically the same facts, the son and the mother should tentatively understand that they would not agree on any amount as representing a fair value of the board furnished to the son, then, under the view of my associates, the whole $25 per week, which the son had handed to his mother prior to his death, would be considered as a contribution to her. Such conclusion I believe to be unsound.

There is, I concede, in other states, some authority for the view of my associates, but I do not find that in this state the question has as yet been settled.

In Chauvin v. American Mutual Life Insurance Co., 17 La. App. 187, 134 So. 450, in which the question was discussed, the deceased wage-earner had not lived at his mother’s home, but, as I stated in my concurring opinion, spent “only a small portion of his time there.”

Boudreaux v. Myles Salt Co., 11 La. App. 480, 123 So. 907, is not authority contrary to my presently expressed views, for there the question was whether there should be deducted for the purpose of computing prior contribution, not the value of the board and lodging furnished the deceased himself, but the value of board and lodging furnished to Other minor children. It is true that since, under article 227 of the Civil Code, the parent is obliged to maintain and support the child, any one who furnishes maintenance and support to the child is thus assisting the parent in fulfilling the aforementioned obligation, and may be said to be contributing to the parent. However, where it is the child himself who is both furnishing to the parent the financial assistance and receiving from the parent maintenance and support produced by his own earnings, it cannot legally be said that all that such child turns over to the parent is a contribution to the parent, as I concede it would be if produced by some one else who was not also receiving maintenance and support from the parent.

Where the contribution furnished is used for other children for whose support and maintenance the parent is, under the article of the Code, obligated, then all of the contribution may be said to be made to the parent.

In fixing the amount to which, under the compensation law, the parent is entitled when deprived of the support which, prior to the death of his child, he had been receiving from the child, the lawmakers intended that we should not be concerned with any other amount than that which represents the financial loss which the parent has sustained. But if, as I have said, A gives B money, and B returns part of it in the shape of board, the total amount given does not represent a donation or a contribution, part of it is payment for the board.

In the judgment, which is by the majority decree affirmed, the amount which defendant is condemned to pay each week is higher than it should be in my opinion, and I therefore respectfully dissent.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,972
    Orleans
    GERDE NEWMAN & CO. v. FOURCADE
    (March 7, 1932. Opinion and Decree.)
    Ridgely Moise, of New Orleans, attorney for plaintiff, appellee.
    Woodville & Woodville, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This suit grows out of an alleged sale of twenty-five cases of eggs by the plaintiff to the defendant.

In the case of Gerde Newman & Company v. Roselino Curcuru, No. 13,858 of bur docket, decided January 11, 1932 (18 La. App. 572, 139 So. 83), a case involving the same party plaintiff and the same principles of law and practically the same facts, the defenses made here were held to be without merit.

We have not changed our view. Consequently, and for the reasons assigned, the judgment appealed from is affirmed.


author: JANVIER, J.

text:
    No. 14,084
    Orleans
    KERN v. N. O. PUBLIC SERVICE, INC.
    (March 7, 1932. Opinion and Decree.)
    George Piazza, of New Orleans, attorney for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

At about 7:30 at night

Kern, plaintiff, had just boarded one of defendant’s street cars and was standing near the conductor on the rear platform when the car was brought to a rather sudden stop because the wheels of the rear truck “split a switch” and refused to follow those of the front truck.

Kern claims that as a result of the jolt caused by the stop he was thrown violently against the upright bar near the center of the rear (platform and that part of his body struck the emergency brake handle with the result that he was severely injured. The amount asked in his petition is $15,300.

Defendant maintains that when the car split the switch it was not derailed; that it was traveling at a very slow speed; that Kern was not thrown against any part of the car, but was braced by the conductor and that he not only sustained no injuries at all, but made no complaint of any kind.

The district court rendered judgment for defendant dismissing the suit.

In argument before this court and in his brief counsel for plaintiff contended that there should be judgment for his client, but he admitted that the record would not justify an award in excess of $735.

In view of the enormous claims presented in the petition the voluntary reduction of the amount thereof to a sum comparatively so insignificant cannot be overlooked, and casts considerable doubt on the good faith of plaintiff and weakens the effect of his testimony in other particulars, because the issue presented depends solely upon the veracity of witnesses and through his entire testimony Kern’s willingness to exaggerate and to misstate facts is strikingly evident.

The record is large. We have given to it most careful consideration and we deem it unnecessary to say more than, even if there had been no testimony other than that given by Kern himself, it would have been most difficult to believe that he sustained any injuries as the result of the slight jolt which occurred, and in view of absolute proof to the contrary we need do no more than state that plaintiff's story is entirely disproved by the countervailing evidence.

The judgment appealed from is affirmed.


author: WESTERFIELD, J. PER CURIAM.

text:
    No. 13,943
    Orleans
    THIBODEAUX v. LANDRY
    (January 11, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)
    (March 7, 1932. Opinion and Decree on Rehearing.)
    Richard A. Dowling and Gerald Netter, of New Orleans, attorneys for plaintiff, appellant.
    W. J. & H. W. Waguespack, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The plaintiff, Thibodeaux, bought from defendant, Landry, the Gentilly Hotel & Restaurant, its furniture, equipment, etc., for the sum of $2,000, $1,600 of which was paid in cash, and for the remainder, $400, two promissory notes of $200 each were given. This suit is based on these notes.

Defendant contends that the restaurant was warranted to be free from debt, and that, since its acquisition, he has been obliged to pay a number of bills amounting to $164. He has pleaded the aggregate of these items by way of set-off, and was allowed, by the trial court, $137.50 judgment being rendered against him for the remainder. Plaintiff alone has appealed.

Some reference is made in brief to the Bulk Sales Act, No. 270 of 1926, as being of interest here, but that act clearly has no application. Denekamp v. Heisler, 12 La. App. 471, 126 So. 447; Item Company, Ltd., v. National Dyers & Cleaners, Ltd., 15 La. App. 108, 130 So. 879.

As we see it, only an issue of fact is involved, which, after a reading of the record, we are convinced has been correctly determined below.

For the reasons assigned, the judgment appealed from is affirmed.

ON REHEARING

PER CURIAM.

Upon reconsideration of this case we have concluded to disallow an item of credit of $88, which was recognized in our former decree. Consequently our former, decree must be amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment herein, in favor of the plaintiff, Paul Thibodeaux, and against the defendant, R. O. Landry, in the full sum of four hundred dollars, with 8 per cent per annum interest thereon from July 7, 1930, until paid, and an additional 10 per cent as attorney’s fees on the principal and interest thereof, subject to a credit of $49.50.


text:
    No. 13,979
    Orleans
    BELL v. FIRST NATL. LIFE INS. CO.
    (December 14, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    . A. H. Reed and Henry J. Wyman, of New Orleans, attorneys for plaintiff, appellee.
    Normann, McMahon. & Breckwoldt, of New Orleans, attorneys for defendant, appellant.
   ON MOTION TO REMAND

WESTERFIELD, J.

When this ease was

called for trial, defendant, through its counsel, moved to remand upon the following grounds:

“That mover has instituted nullity proceedings to avoid, annul and set aside the judgment herein appealed from on the grounds, inter alia, that the said judgment was obtained through the fraud and ill-practices, of the plaintiff and appellee, Mrs. Annie Fallow Bell, * * * that the judgment appealed from is predicated upon the assumption that the plaintiff and appellee herein has been permanently and totally disabled as a result of her said alleged injuries, whereas in truth and fact the plaintiff and appellee herein has entirely and completely recovered from her said alleged injuries, and was so recovered at the time that the judgment appealed from had been rendered, but that plaintiff and appellee’s- true physical condition does not appear from the transcript of this appeal; * * * that the plaintiff and appellee herein is impecunious, as will more fully appear from the fact that the proceedings appealed from were instituted in ‘for-ma pauperis’ under the provisions of Act No. 156 of the General Assembly of Louisiana of 1912, as amended, and that in the event that this Court awards judgment in her favor, and before mover’s said action of nullity can be tried, mover will be compelled to liquidate the said judgment in order to avert execution proceedings, and in the event that mover is successful in its action of nullity, mover will be unable to recover from plaintiff and appellee the amount of the judgment so paid; * * * that the sole evidence adduced to support plaintiff and appellee’s contention of total and permanent disability is the testimony of Dr. E. D. Fenner, who admittedly had not seen her for sixteen months prior to the' date on which he testified and who testified solely upon the basis of probability, and not upon the basis of actual fact, and that this Honorable Court should remand- this cause to the Civil District Court for the Parish of Orleans for further testimony on the question of plaintiff and appellee’s, disability, or in the alternative should continue the argument herein until the rendition of judgment by the said Civil District Court of mover’s said action of nullity.”

Accompanying the motion to remand is a certified copy of the petition of defendant in the action of nullity filed in the civil district court on November 27, 1931, under the number 194,687.

For answer to the motion to remand, plaintiff, through her counsel, in opposing the motion, avers that the object of the injunction suit was “to retard justice and •to refrain from paying a just and equitable claim for damages which defendant has suffered through the carelessness and negligence of the plaintiff in rule, and their laches prior to the trial, at the trial and since,” Concerning the suggestion with reference to plaintiff’s physical condition, it is averred that “she has been willing at all times to have a reputable and skilled surgeon examine her; that plaintiff in this rule has not availed himself of the opportunity which law and justice demands, to ask for this examination, but on the contrary now seeks to have the court remand to take further evidence as to her physical disability at this late date; that such procedure would work an irreparable injury on defendant in this rule, because plaintiff in this rule has threatened to dispose of or put beyond the control of defendant in this rule worldly goods and possessions owned at this time; that bondsman has or is about to transfer all of his stock, goods and chattels to the detriment of defendant in this rule * * that “to allow the plaintiff in rule such time as will enable (them) to dispose of their interest of the both principal and surety, as they have threatened to do, because your defendant in rule would not acquiesce in the compromise that they have offered, a mere pitiable (sum) of $1,200.00, which they claimed would be amount she would have received under the Workmen’s Compensation Law.”

The answer is sworn to by the plaintiff and argument was heard upon the motion to remand in advance of the trial upon the merits.

On July 29, 1930, the plaintiff brought suit in the civil district court against the defendant insurance company for damages for physical injuries, claiming $15,500. She alleged that she was employed by the defendant in the capacity of caretaker of a house on Baronne street in the city of New Orleans, which it owned; that in December, 1929, she moved into the house and, on the same day, about 11 o’clock, while placing her private belongings in the house, she undertook to close a heavy glass door; and that, as she laid her hand on it, it fell upon her and knocked her down, with the result that she suffered a fracture of the neck of the right femur, pyelitis, and broncho-pneumonia, the effect of which was to invalid her for life. She alleged that the defendant was responsible in damages because of its negligence in permitting her to enter the house while it was in such a dangerous condition, without warning.

After a trial upon the merits, judgment was rendered in plaintiff’s, favor and against the defendant for $5,000, from which judgment the defendant prosecuted a suspensive appeal to this court.

In the reasons for judgment given by the learned judge below it was stated that:

“The injuries of plaintiff are admittedly very serious. She was unable to rise from her chair in the courtroom without assistance; she was unable to take the witness chair, but was obliged to sit in a chair placed for her convenience near the stenographer. Dr. Fenner’s testimony shows that, in all probability, she will be a cripple for the balance of her life. Her age and her injuries are about the same as the age and the injuries of Mrs. Klein, the plaintiff in the case of Klein v. Young, 163 La. 59, 111 So. 495. The plaintiff in that case was allowed $5,000. Therefore, I believe that I should allow in this case the same amount.”

It is this statement of the trial judge, in his reasons for judgment, which forms the basis, of the action in nullity below, since it is contended that the plaintiff, Mrs. Annie Fallow Bell, was guilty of fraud in that she falsely pretended to be totally disabled and her physician, Dr. E. D. Fenner, is alleged to have been mistaken in the testimony he gave in corroboration of the false pretensions of Mrs. Bell, reference to which testimony was, made by the trial judge in his reasons for judgment. On this showing we are asked to remand the case to the civil district court “for the sole purpose of taking further testimony as to the nature and extent of plaintiff’s alleged disability; or, in the alternative only,” to continue the hearing in this court “until the rendition of the judgment by the said Civil District Court in the matter of: First National Life Insurance Co. v. Mrs. Annie Fallow Bell, No. 194,687 of the docket.”

The plaintiff in the rule to remand mainly relies upon the case of State ex rel. Pelletier v. Sommerville, Judge, 112 La. 1091, 36 So. 864, 867. The facts considered in the cited ease are as follows: Pelletier obtained a judgment against the State National Bank for $9,185. An order for a suspensive appeal was granted and bond and transcript lodged in the Supreme Court. The bond was, insufficient in amount. The appeal was dismissed because of the insufficiency of the bond, whereupon the defendant obtained an order for a devolutive appeal and a writ of injunction restraining the execution of the judgment, coupled with an action of nullity. The action of the judge in enjoining the execution of the judgment was the subject of an application for a writ of mandamus and prohibition to the Supreme Court, in which his conduct was criticized as improper for the reason that the writ of injunction could not be used as a substitute for a suspensive appeal; that the charges of fraud were false; that the nullity of the judgment could not be the subject of suit pending a devolutive appeal. The court in its opinion held that the action of nullity might properly be brought during the pendency of the appeal, since the issues it presented were not the same as. those presented by the appeal. The action of the court below in issuing the injunction was approved upon the ground that “its purpose is to provide relief against fraud which has operated in the obtention of a judgment which makes no appearance in the record, and for which an appeal would afford no remedy,” but it was said, “the remedy thus supplied is independent of the appeal, but is not intended as a substitute therefor, or as a means of affording another day in court, in a case fairly tried, to a litigant who has neglected his opportunity.”

We find nothing in the Pelletier case which would justify the remanding of the instant case for the purpose of taking further testimony concerning the actual physical condition of plaintiff, nor do we believe that the mere filing of an action in nullity upon the ground of fraud is sufficient reason for an appellate court to reopen a case pending before it on appeal for the purpose of taking further testimony bearing upon the alleged fraudulent acts of the successful party. In the case of Schneider v. Etna Life Insurance Co., 30 La. Ann. 1198, a case which was remanded, where it appeared that the judgment was based upon the death of an individual, and, by ex parte evidence filed in the Supreme Court, it was alleged that the individual was alive, the court used the following language :

“We are not unmindful that under cover of a motion to remand for evidence subsequently discovered, attempts may be made to delay appeals in ocher cases, but the remedy is in our own hands, and the circumstances of the present application are extraordinary and exceptional.’’

In the case at bar the contingency which plaintiff fears may result in injury, namely, the necessity of paying the judgment, is not at present imminent, and it may never occur, for it is. possible that, after considering the case on its merits, we may come to the conclusion that the plaintiff’s claim is not well founded, and, in the meantime, ’ the suspensive appeal sued out by plaintiff prevents the execution of the judgment. If, however, after a consideration of the case, we should agree with our brother below and affirm the judgment, it will be sufficient time for plaintiff to take protective measures, should the action of nullity be in a stage which would make such protection necessary, for, if the action of nullity has not been tried, application can be made to the court below for injunctive relief, when it would appear that the Pelletier case would afford sufficient authority.

We do not feel justified in retarding the orderly and timely hearing of this case by deferring its consideration to some time following the determination of the action of nullity. Whether such action on our part would be within our discretion or not is beside the mark, for we are not inclined to do so upon the showing made in this case.

For the reasons assigned the motion to remand is denied.

ON APPLICATION FOR REHEARING

PER CURIAM.

A reconsideration of our opinion in this case results in the conviction that what was said concerning the effect of State ex rel. Pelletier v. Sommerville, Judge, 112 La. 1091, 36 So. 864, is, perhaps, unwarranted. Gajan et al. v. Patout & Burguieres, 135 La. 156, 65 So. 17. However, we are convinced that the result reached and the decree rendered are correct.

Consequently the application for rehearing is refused. .


text:
    No. 14,113
    Orleans
    FLANAGAN v. SEWERAGE & WATER BOARD
    (March 7, 1932. Opinion and Decree.)

      J. A. Woodville, of New Orleans, attorney for plaintiff, appellee.
    Gus A. Llambias, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff claims that, as the result of straining while trying to prevent the overturning of a paint container, he sustained a double (right and left) inguinal hernia, and, asserting that he is totally and permanently disabled and that the said injuries resulted from accident occurring during his employment and arising therefrom, he asks for judgment in compensation for four hundred weeks, at the rate of $14.60 per week, subject to a credit for amounts already voluntarily paid him.

Defendant does not deny that the occupation in which plaintiff was engaged was within the protection of the compensation laws of Louisiana (Act No. 20 of 1914, as amended), but maintains, that the evidence is not sufficient to show that the hernia, from which plaintiff is conceded to be now suffering, resulted from the accident, and that, regardless of whether the hernia resulted from the accident, plaintiff has no right to claim further compensation because of his refusal to undergo an operation, which operation, defendant asserts, would effect a permanent cure and entirely remove the present disability.

The evidence as to the happening of the accident is meager, but we find it sufficiently well established that what plaintiff says is true, and that he was injured while striving to prevent the overturning of a paint container. There is some dispute as to whether he called it to the attention of his superior at the time, and it is argued by defendant, in contending that he did not do so, that his failure is evidence of the fact that he, in truth, did not receive the injury, and that the accident, as described by him, did not occur.

It cannot be denied, however, .that he at once visited the physician designated by defendant, and that that physician found him to be suffering from “right and left inguinal hernias.”

We attach no importance to the fact that plaintiff claims, that the accident occurred in October, 1930, whereas the truth seems to be that it really took place on August 14, 1930, because the date was of no particular importance and there was nothing to fix definitely in plaintiff’s mind the exact ■time at which it occurred. The physician’s records prove the true date, and those same records, beyond any possible doubt, show also the physical defects from which plaintiff was at that time suffering.

That he had not been suffering from this condition previously is indicated by the fact that he was examined by the same physician of defendant at a time prior to the injury, and was found to be in perfect condition. Furthermore, the evidence shows that he had been a motorman for the local street car company for some 25 years previously, and it is. well known that motormen must spend most of their time during working hours on their feet, and that such an injury, had it existed, would have made that impossible.

While it is true that no estoppel to deny liability can result from the fact that payments of compensation were made, it is sufficient that, for thirty weeks, plaintiff was paid compensation by defendant, and that his right to such payments was never questioned until defendant’s counsel became convinced that an operation should be resorted to and would be successful. Mr. Moffat, secretary of defendant, testified that it was only on advice of counsel that the compensation payments were discontinued.

The record convinces us, as it did the district judge, who rendered judgment for plaintiff as prayed for, subject to a credit for payments for 30 weeks, that the accident occurred and that the hernia now complained of resulted.

But it is contended that, even if it be true that the present condition resulted from accident arising out of and in the course of plaintiff’s employment, nevertheless, an operation would cure plaintiff and remove the disability, and, if so, his continued inability to work results not from the accident, but only from his refusal to submit to such operation. In a syllabus written by the Supreme Court in Donovan et al. v. N. O. Ry. & Light Co., 132 La. 239, 61 So. 216, 48 L. R. A. (N. S.) 109, is. found the following:

“Where one has been injured, but is advised by competent physicians that the injury can be remedied by an operation that is ordinarily not dangerous, but refuses to submit to the operation, she is not minimizing her damages, and cannot recover for the sufferings which would be avoided by the needed operation. It is incumbent upon the injured person to submit to reasonable treatment, and to follow the advice of competent physicians.”

But here there is considerable doubt as to whether such an operation would be as free from danger as an operation should be, in order to permit courts to take upon themselves the responsibility of saying that injured persons should submit thereto.

It may well be, as has been testified to, that, in the case of an otherwise normal healthy individual, an operation for hernia is not serious, and that in such case the chance of fatal result is very small indeed; but the sufferer here is shown to be the victim of chronic bronchitis and is subject to violent fits of coughing, and Dr. Roeling testified that, for. this reason, “I would not operate on him under existing conditions.”

Even Dr. Wichser, the physician of deféndant, who had advised an operation, admitted that such things as chronic bronchitis might make an operation dangerous, and that he would advise such operation only after proper examination into the physical condition of the sufferer. It cannot be disputed that Flanagan suffered from bronchitis, and it is quite possible that, had Dr. Wichser made such an examination as he concedes should precede such an operation, he, too, would have reached the conclusion to which Dr. Roeling had already come, and that he would have changed his opinion as to the advisability of an operation. At any rate it cannot be said, as was said in the Donovan case, that such an operation, so far as-plaintiff is concerned, would not be dangerous. The proof on this point brings this feature of the case within the doctrine announced in Wolf v. Louisiana Milk Products Co., Inc., 8 La. App. 657, in which our brothers of the First circuit followed a most reasonable rule, which is well expressed in the editorial syllabus reading as follows:

“The refusal of injured employee to undergo a general anaesthetic for the purpose of relieving the condition of his knee by an operation fraught with danger will not affect his right to recover compensation under the Workmen’s Compensation Act No. 20 of 1914, as amended.”

It seems quite evident from the record that, even in his present condition, there are certain kinds of work in which plaintiff may engage, but it also appears that the particular kind of work for which he is fitted, manual labor, may no longer be indulged in without considerable danger. In McQueen v. Union Indemnity Co., 136 So. 761, we find in the syllabus the following:

‘‘ ‘Permanent total disability to do vrork of any reasonable character’ means inability to do reasonably similar work, not reasonable work regardless of its nature.”

In Franklin v. Ernest Roger Co., Ltd., 2 La. App. 764, the Court of Appeal for the First Circuit, said:

“The language ‘Permanent total disability to do work of any reasonable character during period of disability’ in the legislation in question does not mean that the party must be unable to do any kind of work, but means permanent total disability to do work of any reasonable character that the party knows how to do and is capable of doing, which will afford him a support for himself and family.”

See, also, Johnson v. Calcasieu Sulphate Paper Co., 15 La. App. 55, 130 So. 251, and Plumlee v. Calcasieu Sulphate Paper Co., 16 La. App. 670, 132 So. 811.

The judgment appealed from is affirmed.


author: HIGGINS, J.

text:
    No. 13,935
    Orleans
    GRIFFEN v. TECHE TRANSFER CO., INC.
    (March 7, 1932. Opinion and Decree.)

      Henry W. Robinson, of New Orleans, attorney for plaintiff, appellee.
    Leslie P. Beard and Chester A. Peyronnin, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit for damages for personal injuries and for property damage to an automobile alleged to have resulted from the negligence of the defendant’s employee. Petitioner alleges that he was driving his Studebaker sedan towards Baton Rouge on the graveled public highway along the right bank of the Mississippi river, in the parish of St. Charles, and that his automobile was struck from the rear and overturned by a bus of the defendant company which overtook it in a turn of the road. The charges of negligence against the bus driver are that he failed to keep the bus under proper control in attempting to pass plaintiff’s car, in driving too close to plaintiff’s car and striking it, and operating the bus at an excessive rate of speed in the curve.

Defendant in its answer denies that there was any collision between the two vehicles and that its employee was in any way at fault, and, in the alternative, pleads contributory negligence.

There was judgment as prayed for, and the defendant has appealed.

The record shows that on November 7, 1930, about 3:15 o’clock p. m., plaintiff was driving his five-passenger Studebaker sedan on the graveled public highway adjacent to the levee of the Mississippi river, in the parish of St. Charles, towards Baton Rouge. His wife was riding on the front seat with him, and he had two guests in the rear seat. The passenger bus of the defendant company was also traveling along the same highway, going in the same direction as the Studebaker car. When the vehicles reached a point in the road where there is an S curve, estimated to be from 35 to 45 degrees at both turns thereof, the bus overtook the Studebaker car. The driver of the bus sounded his horn as a signal that he intended to pass the automobile, and the plaintiff pulled to the extreme right-hand side of the road in order to let the bus pass to his left. The road at this point is about 23 to 25 feet in width, the gravel in the center being well packed, but on each side there is some loose gravel. It appears that the two machines were leaving the last turn in the S curve when the Studebaker car ran off the road on the right, or levee side, and turned over on its left side, causing the damages to the car and injuries to the plaintiff. All of the other occupants of the car were injured by being bruised or cut from flying glass. The bus continued on its course and stopped about 150 feet ahead, after its driver’s attention had been called, by one of the passengers, to the fact that the automobile had turned over.

The plaintiff, the two guests, in his automobile, his wife, and also a passenger in the bus, all testified that, as the bus passed the Studebaker car, there was a noise and a jolt as if the right rear part of the bus had struck the left rear side of the Studebaker car, and that immediately thereafter the plaintiff, who was driving •the Studebaker car, lost control of it, running off the right-hand side of the road and turning over.

The driver of the bus and several passengers therein all testified that they felt no jolt and heard no noise at the time the bus passed the Studebaker; that the road was wide enough for the bus to pass the sedan, and that the front part of it (the bus), at the time it went around the sedan, had about a four foot clearance. The defendant’s witnesses admit that the rear bumper of the bus was made of a large iron pipe, two and a half or three inches in diameter, and protruded four to six inches beyond the body of the truck.

The photograph of the left rear side of the Studebaker car shows plainly that it was struck a blow on the rear of the license plate and left rear fender which were about the same distance above the ground as the bumper on the rear of the bus. The marks on the license plate and tender show that the blow was administered by an object moving in the same direction as the Studebaker sedan was going.

As. we view the situation, all of the testimony introduced in behalf of the plaintiff is positive evidence that the right rear side of the bus struck the left rear side of the Studebaker car, causing the driver to lose control of it, which resulted in its turning over.

All of the testimony in behalf of the defendant is negative evidence to the effect that the several passengers in the bus did not feel any jolt or jar, nor hear any sound at the time the bus passed the Studebaker car. This might well be, as the bus was so much larger and heavier than the sedan, and because the windows on the right side of the bus were up at the time of the collision. We conclude that the bus did strike the sedan.

Now all of the evidence for both sides shows that the bus was traveling at a speed of 40 or 45 miles an hour, and that the sedan was going at a speed of about 35 or 40 miles an hour prior to entering the curve; that the sedan slowed down as it approached the curve, and, upon the signal from the bus driver, pulled to the extreme right-hand side of the road in order to permit the bus to pass; that the driver of the bus attempted to pass the sedan while both vehicles were moving through the S curve; that the bus was going about 25 miles an hour at the time and the Studebaker about 15 miles an hour; and that the bus driver’s, view was obstructed for a considerable distance by the curve in the road and a fence and certain trees along the road.

The Louisiana statute regulating traffic on state highways is Act No. 296 of 1928, and the relevant portions thereof read as follows:

“Section 5. (Restrictions of Speed.)
‘‘(a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person.
“(b) Subject to the provision (a) of this section and except in those instances where a lower speed is specified in this Act, it shall be prima facie lawful for the driver of a vehicle to drive at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful. * * *
“4. Fifteen miles an hour in traversing or going around curves or traversing a grade upon a highway when the driver’s view is obstructed within a distance of one hundred feet along such highway in the direction in which he is proceeding.’’
“Section 14. (Overtaking a Vehicle.)
“(a) The driver of any vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof, and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle.”
“Section 15. * * *
“(b) The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver’s view along the highway is obstructed within a distance of five hundred (500) feet.”

We have reached the conclusion that the driver of the bus was at fault in attempting to pass the Studebaker car in the curve while running at an excessive rate of speed, and in passing too close to the sedan and striking it.

The plea of contributory negligence is without merit, as all the evidence shows that the plaintiff was on the extreme right-hand side of the road at the time of the accident and going at a moderate and lawful rate of speed.

The defendant admits the correctness of the bill itemizing the damages to the automobile in the sum of $196, plus $3.90 for towing the disabled car into the town of Luling, but denies the claim of $100 covering damages for personal injuries to plaintiff. Plaintiff alleges that he sustained “two severe bruises on the leg and one on the collar-bone, which were extremely painful.” J. S. Goff, district manager of the United States Foreign and Domestic Commerce, one of the plaintiff’s, witnesses, testified that the plaintiff was hurt in the accident, complaining at the time of pain in his shoulder and leg. Walter T. Schrieber, a research chemist, guest in the plaintiff’s car, testified that, at the time of the accident, Mr. Griffen, plaintiff, limped considerably from an apparently injured leg. The injuries, while painful, were not serious, and the trial court allowed the sum of $100. We see no reason to disturb the award.

For the reasons assigned, the judgment is affirmed.


author: CULPEPPER, J.

text:
    No. 4228
    Second Circuit (First Division)
    DUPUIS v. DAVIS
    (February 16, 1932. Opinion and Decree.)

      Argued before DREW, McGREGOR and CULPEPPER, JJ.
    Gremillion & Moreau, of Marksville, attorneys for plaintiff, appellant.
    Joffrion & Bordelon, of Marksville, attorneys fpr defendant, appellee.
   CULPEPPER, J.

This is an action in damages for alleged failure by defendant to deliver movables sold to plaintiff, embracing the value of the articles themselves, and for expenses incurred, worry and vexation, time lost, etc., in an effort to secure delivery, and for attorneys’ fees in prosecuting the suit. From a judgment rejecting his demands, plaintiff has appealed.

The property involved had belonged to defendant’s father, and upon his death, a short time previous, defendant acquired same at administrator’s sale of her father’s estate. It appears that defendant was not very well informed as to the exact quantity and number of articles which constituted a portion of the property, particularly certain tools, etc., as they had all been kept on the late premises of her father near Lake Long in Avoyelles parish, some eighteen or nineteen miles from Marksville, and a Mr. Henry St. Romain, up until about the time the alleged sale took place, had been taking care of the premises and property tq prevent depredations and pilfering; while defendant, whose home was in Oklahoma, had been residing temporarily in Marksville looking after the winding up of her father’s estate.

Plaintiff, having been informed by some one other than defendant, so he testified, that defendant desired to sell some tools and a plane attachment that goes with a gasoline engine, and being specially desirous of such plane attachment for use in dressing lumber, he, in company with Robert Edwards and Perry Rousseau, called on defendant at her rooming house in Marksville, on Sunday morning, September 20, 1930, with the view qf buying the tools and plane attachment, especially the latter named article. Plaintiff testifies defendant told him “she had the tools belonging to the place and wanted $25.00 for the engine, bench saw and all the tools belonging to the place”; and plaintiff then asked if she had a plane and defendant replied that “she thought she had a tool like that,” and he told her, “That’s what I wanted.” Plaintiff then, according to his testimony, asked if in case he should go out to the place and find what he wanted and bring it home whether it would be satisfactory for him to settle with her after-wards, and she told him she did not know, but for him to see Mr. Winston Joffrion, her lawyer, and whatever Mr. Joffrion told him about it would be satisfactory to her. Plaintiff then went immediately to Mr. Joffrion who, plaintiff testifies, assured him it would be all right. Mr. Joffrion, testifying in this connection, says plaintiff asked him if Mrs. Davis (defendant) “could sell him an engine, bench saw, plane and tools located on the Davis estate at Lake Long,” and that he advised plaintiff that “she I could pass a legal title to him and that I anything she did would be all right.”

During the afternoon of the day the conversations as above related took place, plaintiff, in company with Robert Edwards, went to the Davis home place, and looked at the property, made a list, according to his and Edwards’ testimony, of the various tools he found, and the next morning called on defendant at Marksville, and (quoting) “told her about all the tools I seen and she said it was all right, but I told her she didn’t have no plane like I wanted and that was a valuable tool, and I would give her $20.00 for the gdsoline engine, bench saw and all the tools belonging to the place, which she accepted.”

Robert Edwards, on this point, testified that defendant said (quoting) “All the tools that belonged to Mr. Davis, you can have them” — (having reference to such tools as she had acquired at her father’s succession sale). Asked if defendant said she knew the exact tools shown on the list were there. Edwards answered, “She remembered a lot of them.” Asked if she said she had made a check, he said “No.” The list in question is document marked “Plaintiff A-l,” filed in evidence. Edwards testified that defendant did not read the list.

Plaintiff, it appears, gave defendant a check for $20 in payment of the gasoline engine, the bench saw, and the tools. After signing and delivering the check, plaintiff mentioned that he had noticed some cypress lumber, also some wire, while on his trip to see about the tools, etc., and offered defendant, so he testified, $6 for the lumber and wire, and after some Hesitancy defendant accepted the offer, and later, according to agreement, plaintiff left another check to cover this sum with Mr. Joffrion.

It appears that defendant was on the eve of returning to her home in Oklahoma at the time these transactions were had with plaintiff, and due to her hurry and anxiety to go she made the sales hurriedly and without giving much attention to their details, and in fact sold the property at quite a sacrifice.

Regarding delivery of the property sold, plaintiff, according to his testimony, in which he was corroborated by Edwards to a large extent, asked defendant as soon as the deals were made, where she would deliver the property, and she told him she could not deliver them because she was leaving right away for Oklahoma and was in a hurry to get away, but said she had a man, Mr. Henry St. Romain, down on the place, who would deliver them to plaintiff, or if he did not do so, to see Mr. Joffrion and he would make the delivery for defendant as her attorney. On cross-examination plaintiff was again asked if defendant agreed to go down to the place and make delivery there, and answered (quoting) “No. She said she was leaving. She says, T got my trunk packed,’ She told me whenever I called for it, Mr. St. Romain would deliver it to me and in case he refused to see you” (Mr. Joffrion) “you would make them do it.” This was during the early morning of Monday, September 21st.

Plaintiff sent his truck immediately from his home in Marksville, by Robert Edwards, to get the property. When he arrived Mr. St. Romain was not there, and Edwards, after telling Mr. St. Romain’s son, who was there, what he had come for, the young man refused to let Edwards take any of the tools, because he said his father owned some of the tools on the place and he did not know which ones belonged to him and which belonged to defendant. Edwards got the gasoline engine, bench saw and a cross-cut saw, and brought them back to plaintiff. Plaintiff reported to Mr. Joffrion what had happened, and the latter, to assist plaintiff, gave him a written order, which reads as follows:

“Please deliver to Mr. Forest Dupuis all the tools which belonged to the R. P. Davis Succession, as he purchased these from Mrs. Opal Davis Marshbank.
“W. K. Joffrion, Atty.”

This order does not show to have been addressed to any one. Mr. Joffrion testifies plaintiff asked him for some evidence to show he had purchased the tools and lumber, and for that reason the order was given. Mr. Joffrion also testified that plaintiff told him that Mr. Henry Bordelon was the one who had prevented him from taking the tools and lumber.

Plaintiff testifies he sent his truck back Tuesday, the 22nd, and his driyer returned without the tools and lumber and reported that Mr. Bordelon and Mr. St. Romain refused to deliver them. Asked if he was prevented from getting them by. Mrs. Davis, plaintiff said he was not. He admitted that Mrs. Davis wanted plaintiff to get them. Again he admits that it was Mr. Bordelon who refused to permit him to remove them, Bordelon claiming that everything belonged to him, and that he had bought everything.

After making demand upon defendant to deliver these articles without success, plaintiff brought suit by attaching defendant’s interest in the real property constituting the Davis place, to recover the value of the tools and lumber which had not been delivered to him. He alleged the tools were worth $45 and the lumber $55, and the wire $3, making a total valuation of $103 for the portion of his alleged purchase. The whole of the property purchased had cost him only $26. In addition to these apparently inflated claims, he also claimed various sums for alleged damages aggregating $130, making a total amount sued for of $233, all growing out of purchases, the aggregate prices of which amounted to only $26. This fact in itself is rather remarkable.

Mr. Henry St. Romain had been employed for some few months previous by defendant to stay on the premises as caretaker, but on Monday, the 21st of September, defendant settled with him in Marksville and dispensed with his further services. Therefore, it seems he had no authority to further represent defendant after that time. During that day it appears that defendant met Henry Bordelon at Mr. Joffrion’s office, and there she sold to Bordelon the bees, bee hives, supers and everything connected with the bee industry on the place. Nothing was said by defendant to Mr. Joffrion at the time about the tools, engine, lumber, etc., which she was supposed to have sold to plaintiff earlier in that sáme day. Mr. Joffrion knew nothing of those sales having taken place, was told nothing, and no instructions given him regarding delivering them to plaintiff. It seems remarkably strange that if defendant had agreed to see to it that the tools, lumber and wire were delivered to plaintiff, as he contends that she did, that she would leave for Oklahoma immediately after being in Joffrion’s office without saying something to him about it and instructing him to see to their delivery, especially since she had just discharged St. Romain, which left no one but Joffrion to represent her.

From an examination of the testimony as a whole, we think the conclusions reached by the trial judge as expressed in his written opinion in the record, are correct, both from a legal and an equitable standpoint. We think the trades made by and between plaintiff and defendant when reduced to their final analysis, amounted to the sale of so many tools as plaintiff may find and get, which remained on the place for disposal when he should go after them, and that same would be at his risk, without any responsibility imposed upon defendant to make delivery or to warrant same. To use the language of the judge, “It was * * a question of ‘take as and where’ found, a sort of catch-as-catch-can proposition.” Further quoting from the court’s opinion: “There was at least constructive delivery within the meaning of Art. 2478 of the Civil Code, which provides, among other things, ‘or, even by the bare cqnsent of the parties,’ which the court believes was the case here.”

It is clear that defendant had but little knowledge of what was on< the place in the way of tools, machinery, wire and little odds and ends of lumber. She was prompted to act upon what plaintiff came back and reported to her that he had found, and upon that representation sold it to him for him to go and get, such as it might be. If plaintiff misled defendant into selling something that he could not go and get, or was not there, or that Bordelon or someone else' might impose an objection to, it was plaintiff’s own fault, and he should not complain. Both defendant and Mr. Joffrion did what they could to enable plaintiff to obtain possession of what plaintiff claimed he found on the place, that he listed and wanted. They did not stand in plaintiff’s way, or try to prevent him from getting it. Mr. Bordelon, who had never represented defendant, was apparently the one who prevented plaintiff from obtaining the property.

Mr. Joffrion, on learning that plaintiff was unable to obtain possession of the lumber and wire, desisted from cashing the check which plaintiff had left with him. Joffrion later offered to return the check to plaintiff, which was refused, and upon the beginning of the trial he offered it to plaintiff and was refused, then tendered the amount in cash, which was likewise refused. The check was attached to defendant’s answer for plaintiff’s acceptance, and same is still attached and is in the record for plaintiff’s acceptance.

We quote from the written opinion of the lower court, which dictum this court adopts, as follows:

“The tradition or delivery of movable effects takes place either by their real tradition, or by the delivery of the keys of the building in which they are kept; or, even by the bare consent of the parties if the thing cannot be transported at the time of the sale, or if the purchaser had them already in his possession under another title. Article 2478, R. C. C.
“The provisions of Articles 2503 and 2504, R. C. C., show clearly that while the seller, as one of the principal obligations must warrant title to the property sold, such an obligation may nevertheless be excluded entirely by the terms of the agreement of the parties; and when no warranty is agreed upon, the seller is bound for what results from his personal acts only, and no more. In this case, as relates to the obligation of delivery, the court is satisfied from the evidence that because of the small price paid for the objects in question defendant did not oblige herself to make actual delivery.”

We think the trial judge correct in this respect, also as to the demands of defendant for attorney’s fees in reconvention. As stated in his opinion, “in cases like this one, there can be no recovery for attorney’s fees for the dissolution qf the writ of attachment, by reason of the fact that attorney’s fees are only allowed in such cases when the writs improvidently issued, were dissolved either by bonding or by motion to dissolve, prior to the trial on the merits of the case.” Mitchell v. Murphy, 131 La. 1040, 60 So. 677; Jones v. Monroe, 136 La. 148, 66 So. 760.

It appears that the court made no mention in its written opinion and the judgment in regard to the disposition of the check for $6 which plaintiff gave Mr. Joffrion for defendant as purchase price of the lumber and wire. It will be recalled that Mr. Joffrion, on learning of plaintiff’s failure to obtain the lumber 'and nails, desisted from cashing the check or delivering same to defendant, but has attached it to and filed it with defendant’s answer, and upon the beginning of the trial offered to return same to plaintiff.

Plaintiff is entitled to the return of check.

For the reasons assigned the judgment appealed from is amended by decreeing plaintiff to be entitled to the return to him of said check for $6, and as thus amended, the judgment is affirmed.

It is further decreed that plaintiff pay the costs of the appeal.


author: ELLIOTT, J. LeBLANC, J.

text:
    No. 877
    First Circuit
    HARRIS v. SEVIER ET AL.
    (December 8, 1931. Opinion and Decree.)
    (February 8, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Daspit & Huckabay, of Baton Rouge, attorneys for plaintiff, appellant.
    Charles A. Holcombe, of Baton Rouge, attorney for defendants, appellees.
   ELLIOTT, J.

In a, difficulty which took place on the grounds of the new state capítol building between George F. Sevier and George Toney, a watchman in the employ of George A. Fuller Company, the plaintiff, Hollis Harris, was shot by a pistol fired by said Sevier and badly injured.

The injury was received on February 4, 1931, at 5 o’clock p. m., Toney, the watchman, was endeavoring at the time to eject Sevier from the grounds upon which the new state capítol building was being erected, and had struck him with a pistol. Sevier thereupon drew his pistol and fired, striking Harris, who was standing about 100 feet distant, and taking no part in the difficulty.

The plaintiff, Harris, brought this suit against Sevier and George A. Fuller Company, claiming of them $5,405.75 in solido as damages on account of his injuries and expenses made necessary as a result of his wound.

George F. Sevier and George A. Fuller Company each excepted to his petition on the ground that he did not disclose any cause or right of action against them. The exception urged by Sevier has not been acted on. The exception of no cause of action urged by George A. Fuller Company was sustained, and the suit as against them dismissed.

The plaintiff has appealed. The only question before us on the present appeal is the correctness of the ruling sustaining the exception of no cause urged by George A. Fuller Company.

The plaintiff alleges:

That George A. Fuller Company had George Toney in its employ at the time in question, as watchman. That Toney’s duty was- to protect the property of said company, keep trespassers off said state capítol grounds, maintain peace and order, and generally to keep order on said premises and perform such services as are incident to the duties of a watchman. That, while on the grounds with permission, he was shot with a pistol as the direct result of a difficulty between Toney and Sevier. That Sevier was accosted by Toney while walking across the grounds and ordered off the premises, with the admonition -that, if he did not get off, he would beat him on the head with his pistol. That Toney in his capacity as watchman, attempted to eject Sevier, and in so doing carried out his threat and struck him on -the head several times with his pistol, knocking him down on his knees. That thereupon Sevier drew his pistol and fired four shots, one of which struck petitioner.

That petitioner was an innocent bystander, distant at .the time about 100 yards from the said Toney and Sevier, taking no part in the difficulty, and was not guilty of any negligence in the slightest degree. That said Toney provoked and brought on the difficulty, and was the aggressor throughout. That in attempting to eject Sevier from the grounds he was performing, or attempting to perform, his duty as watchman in an illegal, improper, and unwarranted manner.

That on several other occasions prior to the time in question he had demonstrated his unfitness for the position occupied by him by acting in a harsh, improper, and unwárranted manner in protecting the said premises from trespassers, and the said George A. Fuller was grossly negligent in retaining him therein.

That said Toney was. an unsafe and dangerous man in the position of watchman to the knowledge of George A. Fuller Company, but that they persisted in retaining him in said position after such was made known to them.

That George F. Sevier handled his weapon in a careless and reckless manner, and with wanton disregard and negligence for the safety of your petitioner, because he actually fired the shot which struck your petitioner.

A watchman is said to be:

“An officer in many cities and towns whose duty it is to watch during the night and take care of the property of the inhabitants.”

He is also said by the same authority to possess generally the common-law authority of a constable .to make arrests where there is reasonable ground to suspect a felony, though there is no proof of a felony having been committed. Bouv. Law Diet., Vol. 3, page 3435, verbo Watchman.

Under Revised Statutes of 1870, sec. 932 (amended by Act No. 43 of 1906), a watchman, engaged by a private concern to protect its property, has no right to carry weapons concealed on or about his. person. It is alleged that Toney had a pistol. We cannot assume, however, in the absence of any averment to that effect, that Toney was engaged in violating the law, but will assume that he carried it openly. It is alleged that Sevier had a pistol, and, in the absence of any averment to the contrary, we will, for the same reason assume that he carried it openly. As both presumptively carried their pistols openly, we assume that, when Toney accosted Sevier and ordered him off the premises, they each saw that the other was armed with a pistol.

The averment that Toney ordered Sevier off the capítol grounds and said that, if he did not get off, he would beat him on the head with his pistol, attempted to eject him, and in so doing carried out his threat and struck him on the head with his pistol, justifies the inference that Sevier, ordered off the premises, refused to go. In such a situation force was necessary. Sevier was armed; consequently it does, not appear from .the petition that resort by Toney to. blows with his pistol should be regarded as an act of provocation nor aggression, nor the performance of his duty in an illegal, improper, or unwarranted manner.

A course of conduct which would have been improper if Sevier had been unarmed will be deemed proper under averments that Sevier was armed, and refused to go when ordered. Force adequate to overcome armed resistance is admissible in executing a justifiable ejectment.

The averment .that Toney provoked and brought on the difficulty, and was the aggressor throughout, must be understood in connection with the other averments, from which it appears that Toney was justified in taking the offensive. If he had not, the authority of George A. Fuller Company over the premises, which is not questioned, would have been abdicated in favor of Sevier, who must be looked on, for the purpose of the present determination, as a trespasser, and the act of Toney as having been done in the exercise of the functions in which he was employed, under Civ. Code, art. 2320.

But George A. Fuller Company is not responsible for the shooting, unless it appears. from the petition and pursuant to the provisions of Civ. Code, arts. 2315, 2316 and 2317, that their watchman had no right to use the force applied to Sevier in his effort to expel him from the premises, and that his fault committed in the way mentioned resulted in Sevier firing the shot which injured the plaintiff.

The averments justify the conclusion that George A. Fuller Company was not at fault for using the force applied to Sevier. It appears as, a proper deduction therefrom, instead, that it was the independent and tortious act and fault of Sevier in firing the pistol in an effort to maintain himself where he had no right to be, to which must be attributed plaintiff’s injury.

The averment that George A. Fuller Company knew that the watchman was unfit, an unsafe and dangerous man in the position of watchman, does not render it responsible for damages merely from that fact, when it otherwise appears from the petition that the injuries which plaintiff received resulted solely from the fault and tortious act of Sevier, not in their employ, but acting against them and firing in an effort to prevent himself from being ejected from premises on which he had no right to be.

George A. Fuller Company was not obliged to leave an armed trespasser on its premises simply because of the fact that, if force was used, the trespasser might fire a shot which might injure some bystander, taking no part in the ejectment.

The plaintiff urges very strongly that his petition sets forth a cause of action, and cites us to many authorities which he claims support his position. The plaintiff particularly mentions cases entitled Stumpf v. Baronne Bldg., Inc., 16 La. App. 702, 135 So. 100, decided by the New Orleans Court of Appeals; Galveston, H. & S. A. Ry. Co. v. Bell, 110 Tex. 104, 216 S. W. 390, decided by the Supreme Court of Texas, and Fishburn v. Burlington & N. W. Ry. Co., 127 Iowa, 483, 103 N. W. 481, decided by the Supreme Court of Iowa as supporting the sufficiency of his averments against George A. Fuller Company.

We. have not access to the Texas and Iowa cases cited, but we take it that the language quoted therefrom appears all as claimed; therefore, taking the quotations as correct, an important difference appears between the cases cited and the pleadings in the present case.

In the cases cited, the defendant, of whom damages were claimed, had, by its agents and servants, acting within the scope of their employment, set wrongfully in motion the thing or movement which directly caused the injury on account of which damages were claimed, and which movement may be truly said to have been responsible for the same. But .that would not be a proper conclusion, where, as in the present case, George A. Fuller Company, acting through its watchman, is not alleged to have done anything that it did not have the right to do.

In Gann v. Great Southern Lumber Co., 131 La. 400, 59 So. 830, an exception of this kind was considered, but the shooting had been done by the servants of the defendant in the exercise of the functions in which they were employed, and there was no independent act of a wrongdoer, as in the present case.

Matthews v. Otis Mfg. Co., 142 La. 88, 76 So. 249, and Nash v. Longville Lumber Co., 146 La. 475, 83 So. 771, are also cases in which an exception of the kind was considered, but in both of them the situation was the same as existed in the Gann case.

The ruling of the lower court sustaining the exception of no cause urged by George A. Fuller Company is, in our opinion, correct.

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

LeBLANC, J.

(concurring). The issue in this case involves the application of the doctrine of proximate cause and of the liability of an employer for the unforeseen or unexpected results from the fault or an act of negligence of his employee. It is my opinion that he can only be held liable for those results that are the natural and probable consequences of the act or fault. I am firmly of the opinion that the result of the act of the Fuller Company’s employee in this case is too remote to make that defendant answerable for •the damage which the plaintiff claims.

It is not reasonable to presume that from the employment by the Fuller Company of a man such as Toney is described to be in plaintiff’s petition, and their retaining him in their employ, that one day there would be an innocent bystander injured from a pistol shot of another party engaged in a difficulty with him. We would have to indulge in too many presumptions, some of which would have to be classed as intervening causes, and which would necessarily break the chain of circumstances.

To make the defendant liable, we would have to hold that it was reasonable for it to anticipate that the man with whom their night watchman engaged in an altercation carried a loaded pistol about his person, that he would shoot it, and that a stray bullet would strike some one who was standing one hundred yards away.

The circumstances related are, in my opinion, entirely too remote to hold this defendant responsible for the acts complained of, and for that reason I am of the opinion that the exception was properly sustained.


author: ELLIOTT, J.

text:
    No. 883
    First Circuit
    DAVIS ET AL. v. LINDSAY FURNITURE CO. ET AL.
    (December 8, 1931. Opinion and Decree.)
    (February 8, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Benton & Benton, of Baton Rouge, attorneys for plaintiffs, appellants.
    Breazeale & Sachse, of Baton Rouge, attorneys for defendants, appellees.
   ELLIOTT, J.

This case was before this court previous to the present time on an exception of no cause of action and the facts fully stated in ruling on the exception. 126 So. 572. A rehearing was granted, and in acting on the rehearing the facts were restated. See 14 La. App. 215, 129 So. 447.

The exception of no cause of action was overruled, and the case was then tried on the merits. From a judgment in favor of the defendants, on the merits, rejecting plaintiff’s demand, John F. Davis appealed.'

Maedell Davis, wife of John F. Davis, who claims in the suit on account of personal injuries received in a difficulty with M. B. Lindsay, defendant’s agent, not having appealed, the damages claimed by her cannot be considered in view of the provisions. of the Civil Code, art. 2402 (amended by Act No. 68 of 1902) restricting recovery to the injured wife. We therefore leave the evidence on that subject out of view. Our opinion and decree on the present appeal is to have no bearing nor effect on the rights of Maedell Davis, but the damage to the property, as well as the damage sustained on account of the invasion of his house and humiliation and mental suffering caused by the alleged act of defendant’s agent, is claimable by John F. Davis.

The defendants contend that the principal or master is responsible for the malicious criminal acts of its agents or servants, only when he has authorized or ratified such acts.

Defendants admit in their answer:

“That their agent, M. B. Lindsay, went to the house of the petitioners on the day mentioned, for the purpose of collecting the balance due defendants on a bill for some shades purchased by plaintiffs.”

In a further averment they say:

“Further answering defendants show that their agent went to the house of petitioners on the 11th of June 1929 in accordance with a previous understanding had with petitioners to-wit — .”

The averment continuing says that their agent, M. B. Lindsay, went to plaintiffs’ house at the appointed time, pursuant to their agreement with John F, Davis, and not being paid, commenced to carry out the other part of the agreement, that is, to take possession of the shades, upon which he was assaulted by Maedell Davis and did nothing more than defend himself from her assault.

In their last averment it is again said:

“That all he did, was necessary in defense of himself from the assault of Mae-dell Davis. That he was there by appointment previously made and was carrying out that appointment as previously entered into.”

It is plain from defendants’ answer that M. B. Lindsay was their agent, sent to plaintiffs’ house by them, pursuant to an alleged agreement entered into between them and John F. Davis; that not having been paid the balance due on the window shades he proceeded to take the shades down by force; and that he was justified in doing so. Justification of their agent’s acts in the matter of taking the shades and approval of his course is the gravamen of the defense.

The right to remove the shades by force and.whether the damage done to the property in the house as alleged in the petition was the act of defendants’ agent and the result of his fault, done in the exercise of the functions in which he was employed, are the questions which require consideration in the case.

About half of the purchase price of the shades had been paid, leaving a balance of about $17, which it seems had been due about eight months; but the amount of collecting which the evidence indicates was done in connection with defendants’ business indicates that sales were made on terms of credit.

Mr. Genre, in the employ of defendant, states in his testimony that he had a conversation with John F. Davis, shortly before the time in question, in which the plaintiff told him that he would be at the store not later than Monday to make a payment, and, if not, then there would be some one at his house on Tuesday evening who would either pay the account or else release the shades.

J. K. Lindsay, one of the defendants, testifies that he heard the conversation between Mr. Genre and John F. Davis. Mr. Lindsay remembered the conversation a little differently. He says that plaintiff John F. Davis told Mr. Genre that he would try to make a payment Monday and, if he did not, he would rather we would take the shades up, because he was having trouble of some kind and was short of money and for us to send out there Tuesday, and, in the event he did not have the money, that somebody would be there to release the shades.

M. B. Lindsay, defendants’ collector, went to the place pursuant to the arrangement. An old woman, Mary Gordon, grandmother of Maedell Davis, was present, and he re: quested her to give him the shades. She refused to do so, requesting him to wait until Maedell came. He proceeded to take down the shades without waiting and without her consent, and had rolled up one of the shades for the purpose of taking it down when Maedell came in. Mary Gordon, describing the way he acted, says that he came into the house and said to her: “I want those curtains and things.” She says that she replied: “Well you can’t get them now; wait until Maedell and John come. It is only 4 o’clock and they always come at 4 o’clock.” But he said, “No I’m going to get them right now,” and went to taking them down. By that time Maedell came in, and he said to her “I am getting the things,” and Maedell said to him, “Please don’t take them now.” That he hit Mae-dell with a stick and a fight followed, the details as to which it is not necessary to take into account in acting on the appeal of John F. Davis.

Maedell says as she came into the house she heard her grandmother saying: “Mister, don’t take those shades down, wait until John, comes.” That she put her packages down and said to him: “Wait until my husband comes; he will be here in a little while.” To which Mr. Lindsay said: “ ‘I have orders to come out here and get the goods or the money,’ and he picked up a broom and hit me,” etc.

M. B. Lindsay, testifying on the subject, says that he had no authority from Lindsay Furniture Company to take the shades by force. He states in his testimony:

“Q. Did Mr. Genre tell you to take these shades by force, if they were not given to you voluntarily?
“A. No sir.
“Q. When you did that, you were acting on your own authority?
“A. Yes.”

In another place he testifies:

“Q. Mr. Genre had told you, that you were to receive the money or the shades on that afternoon?
“A. Mr. Genre told me that, yes, that I was to receive the money or the shades.”

John F. Davis, testifying in the case, denies that he ever had any discussion with Mr. Genre about the shades in which he agreed if he did not pay the balance due that Lindsay Furniture Company could have the shades, etc. Mr. J. K. .Lindsay supports Mr. Genre in the matter, so we take it that he did; but we have it from M. B. Lindsay himself that he had no authority from Lindsay Furniture Company to take the shades, down by force. Therefore when Mary Gordon and Maedell, wife of John F. Davis, refused to give him the shades, requested him not to take them down, and resisted the taking amicably, he should have desisted until the matter could be taken up with John F. Davis and determined in the way provided for by law.

The evidence shows that the struggle with Maedell Davis was brought on by his fault and course of conduct. In his effort to take the shades by force he was acting in the exercise of the functions in which he was employed within the sense and meaning of the law. Civ. Code, art. 2320. But his doing so was unjustifiable and unlawful. In the struggle with Maedell the property in the house was damaged as alleged in the petition. During the fight defendant’s agent in some way got outside the door, upon which Maedell slammed the , door, shutting him outside. He thereupon kicked in the door and threw a brickbat inside the house. Defendants are responsible for the conduct of their agent and for the damages resulting from his act and fault in the matter of the present complaint. The rule stated in Ware v. Barataria & Lafourche Canal Co., 15 La. 169, 35 Am. Dec. 189, cited by defendants, has been modified. Gann v. Great Southern Lumber Co., 131 La. 400, 59 So. 830, announces what we believe to be the correct rule on the subject of responsibility. We copy from the syllabus as follows:

“Within the rule that the master is liable for the torts of his servant, committed in the course of his servant’s employment, the language ‘in the course of his servant’s employment’ is not synonymous with ‘whilst the servant was employed by him,’ but refers to any act of the servant, however ill judged, done in connection with, or in furtherance of, the purposes of his employment.”

In Matthews, v. Otis Mfg. Co., 142 La. 88, 76 So. 249, 250, the court approvingly quoted as follows:

“But the tendency of later jurisprudence is to discard this distinction and to recognize the liability of the master, not only for the negligence of his servants, but also for their torts when done within the scope of their employment, or, in the language of the Code, ‘in the exercise of the functions, in which they are employed.’ It matters not that the acts were willful and tortious, nor that they have been committed in disobedience of express orders of the master; if they have been done in the exercise of the functions of their employment, the master is liable.” Citing, etc., Nash v. Longville Lumber Co., 148 La. 475, 83 So. 771, and others are to the same effect.

The responsibility' of the defendants to John F. Davis on account of his humiliation, and mental suffering, due to the conduct of their agent, bringing on a fight and creating a disturbance with plaintiff’s wife, for which defendants’ agent was at fault, throwing a brickbat in the house and alarming his neighbors, is in our opinion established, and the courts should take proper cognizance of such wrongs. We have fixed on the sum of $100 as the amount of damages which the defendants should pay John F. Davis on said account.

In addition to the sum stated, the property of John F. Davis in the house was damaged to the extent of $54.25 as alleged in plaintiff’s petition. An item of $3 claimed on account of doctor’s bill paid for wife is not supported by testimony, and is therefore not allowed. The total sum due John F. Davis is fixed at $154.25 and is to draw legal interest from judicial demand.

The judgment appealed from herein rejecting the demand of John F. Davis is erroneous and contrary to the law and the evidence, and the said judgment is now, to the extent above mentioned, annulled, avoided, and set aside, and it is now ordered, adjudged, and decreed that there be judgment in favor of John F. Davis and against the defendants Lindsay Furniture Company and M. B. Lindsay and J. K. Lindsay in solido for $154.25, with 5 per cent per annum interest thereon from June 21, 1929, until paid.

Defendants and appellees to pay the cost in both courts.


author: MOUTON, J.

text:
    No. 878
    First Circuit
    WRIGHT v. LOUISIANA ICE & UTILITIES CO.
    (December 8, 1931. Opinion and Decree.)
    (February 8, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellee.
    Thomas J. Martin, of New Orleans, attorney for defendant, appellant.
   MOUTON, J.

This case was remanded by us to the district court for trial.

Defendant filed an exception of no cause or right of action to the amended and supplemental petition of the plaintiff.

His grounds of exception are that plaintiff has failed to allege that the death of plaintiff’s husband arose out of and in the course of his employment, and that he was engaged in a hazardous trade or business.

In our original opinion the ruling was against these contentions of defendant, and which are therefore without merit.

The exception being disposed of, we will now pass to the consideration of the merits of the case.

John Wright, deceased husband of plaintiff, was employed by defendant company to deliver ice to its customers in the city of Baton Rouge. After delivering a block of ice to one of these customers, about noon, August 19, 1929, Wright suddenly collapsed, and died immediately.

Plaintiff brings this suit for compensation under the Employers’ Liability Act.

No autopsy was made of the deceased. Four physicians, Bird, Lorio, Tucker and Jones testified as experts at the trial. They all agreed that without an autopsy the cause of death could not be positively ascertained. From the information obtained by them of the history of the case, these physicians differed, however, widely in reference to the cause of Wright’s death.

Drs.'Bird and Lorio ascribed it to acute dilation of the heart. Dr. Tucker said evidently he had a heart lesion, and died from rupture of the coronary artery that feeds the heart, while Dr. Jones was of the opinion that his death was caused by cerebral hemorrhage.

They agree, however, that the diseased condition of the heart of deceased existed prior to his sudden death, although he might have been unaware of it; also, that physical exertion or overstraining was “hard” on his heart and had a deleterious effect. In alluding to the hardening of Wright’s artery, to which Dr. Jones, expert for defendant, refers, he says that any sort of strain, a cup of coffee or tea, boisterous laughter, or any emotional disturbance is bad for a person suffering with his arteries in that condition.

It is shown by the testimony of the physicians that a person suffering from a damaged heart, as explained by them, by carefully guarding against physical labor or exertion may prolong his period of life for a long time.

Dr. Tucker, testifying for defendant, in referring to rupture of the artery next to the heart which he thought was the cause of Wright’s death, said if a person in that condition followed his instructions he might live “indefinitely,” or, as we understand his answer, the normal span of life.

The other physicians were likewise of the same opinion, if a person lived a quiet and sedate life and abstained from physical labor or overexertion, though he might be suffering from a weakness, disability, or disease of the heart, to which they referred in their testimony.

It is shown that deceased had started about six on the morning to deliver ice on the day qf his death. The ice was delivered in blocks weighing, twelve, twenty-five, fifty, and one hundred pounds. Up to the noon hour of that day, about the time he succumbed, he delivered at different places five thousand and one hundred pounds of ice. He had for assistant in the delivery of the ice, Dean Brown, a boy helper, who says he never carried blocks of one hundred pounds, but sometimes helped Wright in carrying those of that size. It must be inferred from that statement that sometimes Brown did not assist him in carrying these one hundred pound blocks which Brown says Wright carried on his shoulders. Evidently Wright was overstraining himself, else he would not have required the assistance of his helper in moving the heavy blocks of ice.

Wright died in the kitchen of Mrs. Kahn’s residence, where Sarah Spand was working as a servant. Sarah testifies that Wright seemed to be very warm, was perspiring profusely, and that his clothes were wet with perspiration. All of that indicated considerable exertion on his part, and which is not at all surprising when it is considered he had delivered before the noon hour of that day five thousand and one hundred pounds of ice, in blocks varying in weight from twelve to one hundred pounds, with the help of a hoy as his assistant. In the light of that testimony and the accompanying facts and circumstances to which we have referred, the only logical conclusion that can he reached is that Wright overexerted or overstrained himself, considering the pre-existing condition of his heart, which brought about its acute dilation, which we think the preponderance of the evidence shows, or a rupture of the coronary artery, or cerebral hemorrhage, causing his death.

In the case of Becton v. Deas Paving Co., 3 La. App. 683, the court said:

“When an injured employee works in excessive heat which caused an enlargement and dilation of the heart ‘which rendered the heart unable to properly function, it was an ‘accident’ within meaning of the Workmen’s Compensation Act defined by Section 38 of Act 20 of 1914.”

Here, whether there was a dilation of the heart, rupture of the coronary artery, or cerebral hemorrhage, it was an accident within the section of the statute above cited. In the case hereinabove cited, the court, in referring to an exhaustive note in 19 A. L. R. 110, mentioned the rule as follows:

“An award of compensation may be made although there was a pre-existing heart disease, if that disease was aggravated and accelerated by an accidental injury which arose out of and in the course of the employment and was the proximate cause of the disability or death.”

Carrying the ice and delivering it was an effort put forward by Wright in the course o,f his employment which had a causal connection with the accident resulting in his death, and it must therefore be held that the employment was the contributing cause. It was the strain, the overexertion which brought the breakdown. The disease from which deceased suffered very probably was in its nature progressive, and might have ultimately resulted in his death; but the injury which caused it is directly traceable to the employment. In such cases, where, as it happened here, the death of the employee has been accelerated or hastened by the accident, the employer is responsible under the Employers’ Liability Act. Becton v. Deas Paving Co., 3 La. App. 683; Behan v. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862; Craft v. Lumber Co., 151 La. 281, 91 So. 736; Hardin v. Higgins Oil & Fuel Co., 147 La. 457, 85 So. 202; Johnson v. Vernon Parish Lumber Co., 151 La. 667, 92 So. 219.

Counsel for defendant contends that Wright was addicted to drinking, and that alcoholism was the cause of his death. No doubt he drank, but there is no proof that he was an habitual drunkard. The proof is that he always appeared perfectly sober when on his rounds for the delivery of the ice. It is certain that, when he fell in Mrs. Kahn’s kitchen, he had given no evidence whatsoever of being intoxicated.

Section 28 of Act No. 20, 1914, page 59, says:

“That no compensation shall be allowed for an injury caused * * * (2) by the injured employee’s intoxication at the time of the injury.”

It is clear that under that section of the statute defendant company could not claim exemption from liability.

There is no proof that Wright’s heart had been affected by excessive indulgence in alcoholic liquors. Even if inordinate drinking had brought on a diseased heart, progressive in its character, and which might have ultimately resulted in his demise, still, as the- injury caused his death sooner, it must be held under the authorities above cited that he died from an accident within the meaning of the compensation statute.

Counsel for defendant cites the case of Sears, Roebuck & Co. v. Industrial Commission, 334 Ill. 246, 165 N. E. 689, 692, where the court said:

“The burden is on the claimant to show by a preponderance of evidence, not only an accidental injury received, but that the loss complained of was caused by the injury.”

In this case, plaintiff has carried that burden as hereinbefore pointed out. In the case cited, the court also said that an award under the compensation act cannot rest upon conjecture or surmise.

In this case, the right of plaintiff to recover does not rest on possibilities or probabilities, but finds, under the proof, an abiding place in the legal certainty required to fix liability on the employer in cases of this character.

On the original examination, as a witness, O’Donovan, delivery superintendent of defendant company, said that in the previous year of his employment Wright was getting a daily wage ranging from $4 to $4.50; that he was getting the day of his death a wage of $4.07.

When recalled as a witness, attorney for plaintiff read from a pay roll of defendant company where it appeared that his pay on the day of his death, including four previous days, was at the rate of $4.72 per day. There was no denial by O’Donovan that deceased was not getting that amount at the time of his death.

In the case of Menzel v. Southern Stevedoring Co., 7 La. App. 703, which presented features similar to those in the present case, the court said:

“The daily rate of pay in force at the time of the injury fixes the basis of the amount of compensation to which he [meaning employee] is entitled.”

The wages so fixed we find to be in conformity with section 8 of Act No. 20 of 1914, as amended by Act No. 216 of 1924, p. 399 (also amended in 1928, Act No. 242), where at page 402, subsec. 3, the term wages 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, etc.”

In the instant case the district judge adopted as a basis the rate of pay which Wright was receiving under his contract of hiring at the time of the injury; and when, as appears from the evidence, he was working seven days a week.

In the case above cited the court allowed the surviving widow of the deceased employee 32% per cent of his wages, the allowance granted plaintiff herein, in which we find no error.

Counsel for defendant is also asking for a reduction of $70 for funeral expenses, to which we do not find it entitled.