author: CARVER,. J. ODOM, J.

text:
    No. 2201
    Second Circuit
    HALL vs. EXCELSIOR STEAM LAUNDRY COMPANY, LTD.
    (November 4, 1925. Remanded for New Trial.)
    (June 30, 1926. Opinion and Decree.)
    (Oct. 4, 1926. Rehearing Refused.)
    (Nov. 29, 1926. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Editor.)
    1. Louisiana Digest-r-Appeal — Par. 745.
    Where the transcript and plat contained therein to which much of it refers is not sufficiently clear for one to understand the crucial effects of the case, it will bé remanded for a new trial.
    2. Louisiana Digest — Automobiles—Par. 4, 4 (d).
    One who- drives a truck to the left of a street turns -a corner" in violation -of a city traffic ordinance and the law of streets, although he saw another car, his driving is the proximate cause of the injury sustained by the collision.
    3. Louisiana Digest — Automobiles—Par. 8.
    An admission by a nervous woman directly after the accident that her brakes did not work will not be used against her recovery for damages if the weight of evidence shows that the brakes were in perfect working order and the skid mark on the pavement shows that they were used and'took effect.
    4. Louisiana Digest — Damages—Par. 28, - 29.
    Although the. primary cause of a woman’s insanity was climácteria, the change of life, nevertheless the exciting cause of this insanity was the shock she- received in the accident. Consequently, those responsible for the accident are- liable for the damage resulting.
    5. Louisiana Digest — Damages—Par. 105;
    Five thousand dollars considered sufficient quantum of damages for the results of an automobile accident which drove a woman permanently insane.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by John T. Hall, administrator, etc., against Excelsior Steam Laundry Company, Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Bullock & Warren, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys. for defendant, appellant.
   CARVER,. J.

For. the reasons, given pi the case .of. John . T. Hall vs. Éxc^lsiqr Steam ' Laundry Company, Limited, No. 2202 on the docket of this court and this day decided, it is decreed that the v.erdicjt of the jury and £he judgment of the lower court thereon be set aside and the case remanded for a new trial.

ODOM, J.

■ This suit, grows out of an automobile collision which took. place between an automobile driven by Mrs. Blanche E. Hall, the wife of John T. Hall, and defendant’s laundry wagon, driven?" at theitiriie by one of defendant’s employees'.

. The suit was brought by John T. Hall; husband of ’Mrs, Blanche E. Hall, acting as administrator pro tempore, it ■ being claimed by plaintiff that Mrs. Hall was severely injured and shocked on account of the collision, which injury and shock finally resulted in her insanity.

Subsequent to the date on which the suit was filed Mrs. Hall died, and John T. Hall and a child by his marriage with-Mrs. Hall were substituted as parties plaintiff, they having inherited Mrs. Hall’s right of action.

The plaintiff alleged that the driver of defendant’s laundry truck drove the truck into and against the automobile driven by Mrs. Hall, inflicting upon her serious injüries and which seriously frightened her, producing great physical pain and mental anguish, “impairing and shattering her nervous system, causing soon thereafter, as the direct and proximate result thereof, a habitual state of imbecility and insanity, which is incurable and permanent”.

Defendant, in answer, admitted its corporate capacity and the alleged collision, but denied negligenpe on the part of its driver; and denied that plaintiff’s wife was injured as alleged; and, in an amended and supplemental answer it specifically set up that in case the court should find and hold that its driver was negligent, “then and in that event your defendant shows that Mrs. Blanche E. Hall, the driver of said automobile, was guilty of gross contributory negligence in that she drove her car with defective brakes and at a reckless rate of speed, without looking or listening or taking any precautions whatsoever”, which contributory negligence is plead in bar of plaintiff’s recovery.

The case was tried by a jury, which rendered a verdict in favor of plaintiff for $5000.00, which verdict was approved by the court and judgment rendered accordingly.

Tlie defendant appealed, and plaintiff answered the appeal, asking that the amount be increased.

OPINION

The collision took place at the intersection of Creswell street and Herndon avenue in the city of Shreveport. Creswell street runs north, and south and is intersected by Herndon avenue at right angles. The Highland street car line, leading from the business section of the city, runs, in that particular vicinity, south along Creswell street until it reaches Herndon avenue, where it turns east and proceeds along that avenue.

Creswell street is thirty-six feet wide from curb to curb, both north and south of Herndon. Herndon avenue is thirty-six feet wide east of Creswell, but west of that street it is only twenty-eight feet wide. This is, therefore, what is termed an •“irregular” intersection1 or-.crossing^,..-

For some reason, probably to get more space for the street car line, the southwest corner of the block, northeast of the intersection, was cut off and the curb line built in a circle around that corner, so that a point at the intersection of a line drawn north and south on the east side of Creswell street and a line drawn east and west along the north edge of Herndon avenue is about eight feet out in the street from the curb.

The street car line has a double track on these streets, both tracks making a curve around the southwest corner of the block, northeast of the intersection. The inside rail of the inbound track coming out of Herndon avenue and into Creswell, runs within about three feet of the curb at the nearest corner. The inside rail of the outbound track runs within about twenty feet of the same point. The rails of the street car track are 4.75 feet apart, so that the outside rail of the outbound track is approximately twenty-five feet from the curb at the curve.

Mrs. Hall was driving her car west on Herndon avenue, and the laundry truck was being driven south on Creswell street. Mrs. Hall, it seems, was on the right-hand side of the avenue and intended, evidently, to cross Creswell street and proceed west on Herndon.

The laundry truck was on the west side of Creswell street, going south.

The two cars reached the intersection at the same time, and it is clear from the testimony that if the driver of the laundry truck had continued south on Creswell there would, have been no collision; but when he got to the intersection he made a curve to the left in order to proceed east on Herndon. As he made the turn, the two cars collided, the left front

\ wheel and left end of the front bumper of Mrs. Hall’s car striking the rear left side of the truck at or near the rear fender. ■

The witnesses say that the two cars “hung up” and had to be pulled apart. The impact caused the rear end of Mrs. Hall’s car to swerve around to the right, so that when it stopped the body of the car was fronting towards the southwest and the front wheel turned towards the west.

There is some discrepancy in the testimony as to the exact point where the collision occurred. There were only three eye-witnesses to the collision — Mrs. Hall, who died previous to the trial, Mr. Chapman the driver of the truck, and Mr. Tucker, who was on the truck with him; but Doctor Harrington, Mr. Flournoy, and a young man named Bauguw, all of whom lived in that immediate vicinity, went to the scene at once, and each testified as to the position of the cars before they were moved.

From all the testimony, we Conclude that the collision took place on the outbound car track at a point on a line drawn approximately northeast from the center of the intersection of the two streets — in other words, between the manhole which is at or very near the point where a line drawn north and south through the center of Creswell crosses a line drawn east and west through the center of Herndon and the southwest corner of the block, northeast of the intersection.

Using the plat filed in evidence, which is referred to by both parties as correct, we place the point of collision on the outbound car track approximately fifteen feet northeast of the manhole and something like twenty-three feet from the street curb at the northeast comer of the intersection.

As already stated, the driver of the truck was going south on Creswell and when he got to this corner he attempted to make a left turn intp Herndon going east, following the outbound car track around the curve.

The negligence which plaintiff charges against defendant is that the track driver “cut” the corner and ran too close to the curb, plaintiff claiming that in making the turn the driver of the truck should have gone further down Creswell and should have gone around the manhole in the center of the intersection and then turned to the east, as is required by ordinance of the city, in which event there would have been no collision. The ordinance of the city requires that drivers of vehicles on the streets in making left-hand turns at intersections shall go to the right of the center of intersection and shall pass them before 'turning, to the left. It is contended that the failure to observe this regulation is negligence per se.

The defendant, while conceding that is true, contends that inasmuch as this was an “irregular” intersection, the ordinance does not apply and that it is neither practical nor necessary to observe the regulatibn at this particular intersection. Counsel for defendant contend that all that is necessary and- all that is expected of a driver at this point in making the turn is to follow the outbound car track, which the driver of the truck did; and they point out that on account of the difference in the width of the two streets, Creswell being eight feet wider than that part of Herndon west of Creswell, the center of intersection of the two streets is much further from the northeast corner than it is from the southwest corner of the intersection.

According to the plat, which is drawn, to scale, we find that if is approximately thirty-eight feet from the center of. intersection to the curb on the northeast and only about twenty-five feet to ,;the curb on the southwest corner.

Counsel argue that the ordinance was intended to apply only to regular intersections. Inasmuch as the ordinance makes no exceptions, we see no reason why the court should make any, especially in view of the fact' that there is no showing and no suggestion that the provisions of the ordinance are unreasonable and could not be complied with to the letter at this particular crossing. without danger and without inconvenience.

In order to go entirely around the center of intersection at this point the distance would be 'somewhat greater and the turn more precipitate, but it is not contended that the driver of the truck could not have complied with the provisions of the ordinance with all safety, and we cannot see that he would have suffered any inconvenience except in having to make a longer swing.

The city ordinance was adopted for the protection and safety of those who use the . streets.

In Huddy on Automobiles, Sixth-Edition, Section 388, it is stated:

“The course to be pursued around a corner is now generally prescribed by statute or municipal ordinance, and the requirements should be obeyed.”

It is true, of course, ■ that while the violation of a city traffic ordinance may be negligence per se, yet the negligence from such violation would not render the guilty party liable unless such negligence could be held to be the proximate cause of the injury.

Our conclusion from all the. evidence in this case is that the- driver of the truck was negligent; and that his negligence was the proximate cause of the injury.

■ We dq not, however, base our. finding of negligence merely and solely upon., the fact that the truck driver violated the city ordinance by failing to go around, the center of the intersection. He violated the traffic ordinance of the city in another respect.

Section 35 of Ordinance 207 of the city of Shreveport, which is a general traffic ordinance, defines reckless driving and under Subsection (gj of Section 35 it is provided:

“Turning a street corner in a manner that endangers pedestrians, or property, failing to give notice of sufficient warning before making a turn.”

Section 47 of the same traffic ordinance reads as follows:

“Be it further ordained, etc., that before a vehicle shall turn to the right or left the driver or occupant shall give a signal of his intention as above provided.”

There is no question but that the driver of the truck violated the city traffic or: dinance in these respects also.

But regardless of the ordinance, he was guilty of negligence in failing to observe the rules and practice ordinarily observed by drivers of vehicles on the street- — he violated the “law of the street” as drivers understand it, regardless of any municipal ordinance. He not only failed to go around the center of intersection as the ordinance provides he should, but he made a short, sharp cut around the corner, running his car. within twenty-thr.ee feet of the inside corner, notwithstanding he saw or could have seen, if he . had looked, Mrs. Hall’s, car coming down Herndon avenue on the right-hand side and near to the corner. He made the turn at or about the time, she entered-the intersection, without sounding any signal and without making any sign or motion whatever to indicate that he intended turning the corner.

The rules laid down in the city ordinance and observed generally by drivers of motor vehicles on approaching a street crossing in.a populous city, if they intend to change their course, is to sound some signal or give some sign as a warning to other drivers of such intent. The sign used here and throughput the country is for the driver to hold out his left hand and arm when he intends to make a left-hand turn. This precaution is taken whether another car is approaching from the opposite-direction or from the side, and even if no car is in sight, as one might be approaching from the rear. It is further understood that where no such sign or warning is given, the driver intends to keep straight ahead. This is the rule not only in the streets of cities but on public roads as well, frequented as they are by .cars, and it is generally held that to make a left-hand turn around a corner or across a street without giving some signal is the grossest kind of negligence, and according to the specific provisions of the city ordinance it is reckless driving.

In the case of Brook vs. Interurban Motor Transportation Co., 156 La. 286, 104 South. 428, the question of the duty of drivers of cars when intending to alter their course was discussed. In that case a taxicab and a Cadillac car driven by Morefield collided. It was admitted by Morefield, the driver of the Cadillac, that when he reached the intersection of Beauregard and Sprague streets, in the city of Shreveport, he turned to the left- to go north into Beauregard street. .The court said:

“Morefield further says that his curtains were up, and that he gave no signal with his arm to indicate his intention to turn.”

Morefield testified that he saw the taxicab but thought he had ample time to enter Beauregard street before the taxicab reached the intersection. The court went on to say:

- “The proximate cause of the collision was the turning of the Cadillac crossways in the path which the taxicab was entitled to follow along Sprague street. Morefield was undoubtedly at fault in thus blocking the right of way of the taxicab. He gave no signals, and it .matters not that the taxicab may háve been exceeding the speed limit fixed by the city ordinances. ' The contributory negligence of the chauffeur of the taxi did not excuse Morefield’s negligence. It is not only, reasonable, but strongly dictated by ordinary common prudence, that a person driving an automobile along a city street or any other much frequented highway, who wishes to alter his course, should exercise the greatest care and caution in so doing.”

(Boldface type ours.)

The same rule is laid down in Huddy on Automobiles, Sixth Edition, Section 260.

In the case at bar, both the driver of the laundry truck and Mr. Tucker, who was on the seat with him at the time of the collision, testified as witnesses for defendant. Neither stated that any signal or warning was given of their intention to make the turn at the corner, and we assume that if any such had been given they would have said so. Nor do they suggest any reason why it was not done.

Defendant denies negligence solely upon the ground that the driver of the truck was complying with the spirit, if not the letter, of the ordinance. The facts are that he complied with neither. Nor did he obserye the rule “strongly dictated by’ ordinary common prudence”.

Seeing Mrs. Hall’s car approaching the intersection and reaching there about the time he did, he should have given some signal of his intention to turn the corner. Not only that, he should have swerved as far away from the inside corner where she was as he could.

Again referring to the plat filed, we find that he could have swerved ten to fifteen feet further away from the corner and then would not have gone out as far as the center of intersection of the streets. Instead of driving out as far as he could, he came, to within twenty-three feet of the corner, according to the testimony of the driver and the man who was riding with him, and to within less than that distance according to the testimony of some of the other witnesses.

We hold, therefore, that the driver of defendant’s vehicle was grossly negligent and that his negligence was the proximate cause of the collision.

Defendant pleads contributory negligence on the part of Mrs. Hall:

“In that she drove her car with defective brakes and at a reckless rate of speed, without looking or listening or taking any precautions whatsoever.”

The only testimony that the brakes on the Hall car were bad is that of Chapman and Tucker and possibly one ot-her witness, who testified that Mrs. Hall said immediately after and at the scene of the accident that her brakes did not work.

The testimony of Mr. Hall, her husband, is that shortly after the collision he took the car to. the Bernstein garage in order to have some repairs made and that the brakes worked perfectly and that they also worked perfectly thereafter. The mechanics who repaired the car found nothing wrong with the brakes.

There is testimony in the record that there were skid marks on the pavement made by the Hall car. That would indicate that Mrs. Hall applied the brakes and that they took effect.

According to all the witnesses, Mrs. Hall was greatly excited and nervous immediately following the collision, and if it be conceded that she made the statement attributed to her it does not necessarily follow that the brakes were in fact bad.

The witnesses state also that Mrs. Hall said that when she saw the collision was inevitable, she threw up her hands an.d quit. Considering the condition -under which she made these statements, if she did, we attach but little importance to them.

The allegation that she was running at a fast and reckless rate of speed is dis-proven by defendant’s witness, Tucker, who was on the laundry truck at the time, who testified that she was driving “very slowly but she had no brakes”.

While such is not plead in answer, yet counsel for defendant suggest in oral argument and in brief that Mrs. Hall could have turned to the right and thereby have avoided the collision and that her failure to do so was contributory negligence bar.ring recovery.

We do not think so.

Inasmuch as the driver of the truck sounded no signal and gave no sign of warning that he intended to change his course at the intersection, she had a right to assume that he intended to continue straight ahead down Creswell street. Furthermore, she had a right to assume that he would observe the provisions of the city ordinance and go further down the stréet before turning. If he had given any such sign or had obeyed the city ordinance there would have been no collision. It was the truck driver’s sudden turn at the corner which brought the rear left side of the truck into contact with the left front part of the Hall car. We do not find that she was negligent. She was on the right side of the street, driving slowly, and but for the sudden and unexpected turn of the truck no collision would have occurred.

From a physical standpoint, Mrs. Hall was not seriously injured in the accident. She had a bruise on the left shoulder and one on the hip; ,but otherwise she was uninjured physically.

However, the testimony all shows that she was greatly frightened and shocked, all of which threw her into a highly nervous state.

Defendant’s other point is that the accident had no connection with and did not bring about Mrs. Hall’s subsequent physical and mental decline, and ultimate insanity.

We cannot subscribe to that view.

Plaintiff called nine lay witnesses, each of whom knew Mrs. Hall intimately, some of them for a great many years. Each and every one of them testified that up to the date of the accident she was perfectly normal, physically and mentally. She was a member of the Presbyterian church and quite an active church worker. Five women were called and testified that they were her neighbors, saw her frequently and were intimately associated with her in church work. Judge W. P. Hall, a kinsman of her husband, had known her practically all her life. He and the other male lay witnesses saw and observed her frequently. Not one of these witnesses had ever observed in her any signs of physical decay or mental unbalance. Doctor Simmons had visited her professionally something like a year prior to the accident. He testified that she was somewhat nervous at that time but that she was undergoing her climacteric or change of life, and that •her condition was normal for a woman-undergoing that period. Her husband testified that all during the night following the day of the accident she could not sleep; that she repeatedly referred to and talked of the accident, and that she-became so nervous that she could not bear the noise of water running into the-bath tub or- such noises as are made by crickets and katydids.

Physicians were called in who testified that they found her. highly nervous and unstrung and suffering from insomnia, which condition they were unable to relieve. The physicians testified, as did ail the lay witnesses, that a complete change came over her immediately after the accident. They all observed evidence of mental unbalance. Local physicians could do nothing to relieve her. She was finally sent to Touro Infirmary at New Orleans and placed under specialists who treated her for seven weeks. Being unable to relieve her, she was sent to the Louisiana Retreat, where she remained under treatment for more than five months. She finally became totally insane and was ' formally interdicted and sent to the Louisiana Hospital for Insane at Pineville, where she died.

Plaintiff called Dr. D. L. Kerlin, Dr. L. H. Pirkle, Dr. J. C. Thomas, Dr. J. C. Willis, Sr., Dr. T. E. Williams and Dr. J. D. Young, all of Shreveport, as expert witnesses to prove that her condition and final insanity was' brought on by the accident.

The sum and substance of their testimony is that insanity may be and frequently is brought, on by trauma. That Mrs. Hall’s suffering was what they called mental or psychic trauma, which- sometimes . follows a severe shock. They all testified that a woman undergoing the climacteric is more nervous and more susceptible to insanity than during any other period; -but they were all of the opinion that a shock- such as Mxrs, Hall received may and frequently does bring on insanity. Their opinions may be summed up in the language of Dr. Kerlin who, on being asked his opinion as to the cause .of the insanity in this case, said:

“The primary cause was climacteria, the change of life; the exciting cause was the shock she received in the accident.”

Defendant called Dr. Ragan, a local physician, and took the testimony of Drs. Thomas and Keller of the Louisiana Hospital for Insane at Pineville, who attended her during her incarceration there. Each of these specialists testified that the accident could not and did not contribute in anywise to the patient’s mental decay and final insanity.

We entertain the highest regard for the opinions of these eminent experts but .we cannot accept their opinions in this case, in view of the opinions of the other experts in the same line to the contrary, and especially in view o.f the uncontradicted testimony that Mrs. Hall had been undergoing the change of life for about a year previous to the accident, during which time she had shown no sign of mental’ disorder, and without any explanation as to why she should have begun to show symptoms of insanity almofet immediately following the shock.

Neither Dr. Ragan, Dr. Thomas nor Dr. Keller saw or attended Mrs. Hall immediately • following the. accident. ■ Some of the other physicians did and observed her condition.

We have no doubt that the shock brought on the condition which resulted in the insanity.

AS TO'THE QUANTUM OF DAMAGES

Plaintiff can recover only such damages for pain and suffering as the deceased could have recovered had she lived. She was injured on or about February 3, 1922. She was finally interdicted and placed in the Hospital for the Insane on April 30. 1923, and died on June 12 following. For a period of more than sixteen months she suffered constantly and intensely. She was highly nervous, excitable and suffered from insomnia. Shortly after the accident she expressed a desire to die and contemplated suicide. She discussed with an intimate friend the.- easiest and best method of ending her existence. While at Pineville she escaped to Red River and jumped in in order to drown herself, but was rescued. Physically she became so emaciated that one of her intimate friends who viewed her remains at the parlor of the undertaker could not identify her.

The jury awarded damages in the sum of $5000.00. We think .their findings on this point, as well as on all other points are amply supported by the evidence, and we shall not disturb them.

For the reasons assigned the verdict of the jury and the judgment of the court based thereon are affirmed with costs.

REYNOLDS, J„ recused.


source: Caselaw Access Project

author: WEBB,- J.

license: Public Domain

text:
    No. 2645
    Second Circuit
    HEDRICK vs. W. K. HENDERSON IRON WORKS AND SUPPLY COMPANY
    (June 30, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 159.
    Where an injured employee is able to work at his trade, although he is dis-' abled, the period of disability should be fixed at three hundred weeks under Section 8, Subsection 1 (c), of Act 20 of 1914, as amended by Act 216 of 1924.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. F. X. Ransdell, Judge.
    Action by Charles B. Hedrick against W. K. Henderson Iron Works and Supply Company, et al. . '
    There was judgment for plaintiff and defendants appealed.
    Judgment amended and affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Pugh & Boatner, of Shreveport, attorneys for defendants, appellants.
   WEBB,- J.

In this -'action, plaintiff, Charles B. Hedrick, seeks, to recover judgment against the W. K. Henderson "Iron Works & Supply Company and the United States Fidelity & Guaranty Company unde.r the Workmen’s Compensation Act No. 20 of 1914 for permanent' total disability to do work of ' any reasonable character, alleged to have been the result of injuries received by plaintiff while in the employment ' of the defendant.

(The United States Fidelity & Guaranty Company filed an exception of no cause of action, which does not appear, to have been passed upon, and the W. K. Henderson Iron Works & Supply Company answered.

On trial there was judgment in favor of ■ the plaintiff for twenty dollars per week for a period not exceeding four hundred weeks, subject to a credit of one .hundred and sixty dollars for compensation paid prior to the date of the trial’.

The defendant appealed.

The plaintiff is a boiler maker, and oh July 2, 1925, while engaged in the service of the Henderson Company at a daily wage of seven and 20-100 dollars, he fell from a scaffold and sustained injuries which are described as a fracture of the second and fourth metatarsal bones, and. a splinter of the third metatarsal bone of the right foot, and a fracture of the inner malleolus bone of the left ankle, which admittedly disabled plaintifff or -a period of eight weeks, for which period he received compensation at the rate of twenty dollars per week. ■

After the plaintiff had been discharged by the physicians he again sought employment with defendant, and was employed as an “extra man” by the day where he worked when there was need of extra help •until about the latter part of October, 1923, when he was discharged.

This suit was filed on November 12, 1925, and trial was had on January 19, 1926, at which time the fractured bones had healed, but the plaintiff was suffering with fallen arches or flat feet, and also with bunions and with a deformed great toe, hallux valgus, on the right foot, which admittedly would somewhat disable him, in that he could not walk or stand upon his feet for the period of time which he otherwise could without experiencing some degree of .pain.

The opinion of the experts was that the bunions and hallux valgus were of long standing, although the plaintiff testifies that he had not experienced any inconvenience from this condition prior to the accident.

The physicians called by the defendant were of the opinion that the falle'n arches were attributable to the transverse muscles of the arches being relaxed, which they were of the opinion was due to the manner in which one suffering from an unusual bunion would walk in order to avoid the pain which would otherwise be incident to such exercise; while the physicians called by plaintiff were of the view that the longitudinal muscles of the arch were relaxed, and, accepting the statement of the plaintiff that he suffered no inconvenience prior to the accident when walking or standing on his feet, and going about his work, they attribute the fallen arch to the injuries which they are of the opinion must have strained or displaced the muscles and tendons of the feet.

The plaintiff states that he is unable to stand upon his feet any great length of time without pain, and he also states that during the time he was working at his trade after the accident he worked in spite of the pain which he experienced, although there is no testimony that he made any complaint during that time.

The opinions of the physicians who were called by the parties, as to the cause and remedy of plaintiff’s disability, are very much in conflict.' However, in view of the fact that plaintiff did suffer serious injuries to his feet, and that he does suffer some disability, wei are of the opinion that the finding Of the trial court as to the cause of his disability is supported by the preponderance of the evidence, but we do not think that it establishes that plaintiff is totally disabled from following his trade.

On the other hand, we find that plaintiff is able to work at his trade, and that the period of disability should have been fixed not to exceed three hundred weeks, and there being no evidence in the record which enables us to fix the amount which plaintiff can earn in his condition of partial disability, the weekly rate of compensation as fixed by the District Court will not be disturbed. (Wm. H. McMullen vs. La. Cent. Lumber Co., 3 La. App. 562.)

It is therefore ordered that the judgment appealed from be amended so as to fix the period for payment of compensation for the period of disability, not to exceed three hundred weeks, and as thus amended the judgment is affirmed.


author: REYNOLDS, J.

text:
    No. 2525
    Second Circuit
    BLANE vs. IGLEHART
    (June 30, 1926. Opinion and Decree.)
    (Oct. 4, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 155, 156, 157.
    An employee engaged in working and superintending the work of others on a residence being erected by the owner not alleged or shown to be engaged in any hazardous trade or .business does not come under the protection of the Employers’ Liability Act (Act 20 of 1914 and amendments), unless prior to any injury sustained by such employee in the work the employer and employee have voluntarily elected to come under the operation of the Act.
    Employers’ Liability Act. Section 4, Paragraph 1.
    2. Louisiana Digest — Master and Servant —Par. 154, 157.
    The Employers’ Liability Act of Louisiana applies when the employer is engaged in any of the hazardous trades or businesses specified in the Act, but does not apply where the employer is not engaged in any such trade or business unless prior to any injury sustained by an employee the employer and employee have elected to come under the operation of the Act.
    Shipp vs. Birdelon, 152 La. 795, 94 South. 399.
    3. Louisiana Digest — Master and Servant —Par. 160 (i), 160 (j).
    Where one insuring an employer under the Workmen’s Compensation Act, when sued by an employee, admitted that it was the insurer or the employer, but denied liability to plaintiff, it was not thereby precluded from contending that the employment was not within the act.
    Benjamin vs. Standard Accident Ins. ■ Co., 152 La. 874, 94 South. 426.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John P. Stephens, Judge.
    Action by W. H. Blane against J. T. Iglehart, et al.
    George R. Pilcher, Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellee.
    Breazeale & Breazeale and Harry Sellers, of Natchitoches, attorneys for defendants, appellants.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff, W. H. Blane, sued defendant, J. T. Iglehart, for compensation under the Workmen’s Compensation Act- (Act 20 of 1914 and amendments) for injuries sustained by him while working and superintending the work of others in the erection of a dwelling for defendant Iglehart.

Iglehart denied liability on the ground that plaintiff was not an employee of his but an independent contractor on the work. He also denied that plaintiff was injured to the extent he alleged.

The General Accident, Pire & Life Assurance Corporation, Limited, voluntarily made itself a party to the suit, and, alleging that it had insured Iglehart against loss under the Employers’ Liability Act by reason of accidents growing out of the erection of the dwelling, set up the same defense to plaintiff’s -claim that Iglehart did.

On the trial of the case there was judgment in favor of plaintiff against both Iglehart and the Assurance Corporation and both of them have appealed.

OPINION

Plaintiff moved in this court to dismiss defendants’, appeal. The motion was not allowed, and -plaintiff in his brief makes no contention that the case is not now properly before the court.

The answers of the defendants do not squarely set forth the defense that they are hot bound for the reason that defendant Iglehart was not engaged in any hazardous trade or business within th» meaning of the Workmen’s Compensation Act, but in their brief in this court they urge that the evidence shows that Iglehart was not engaged in any of the trades or businesses specified in the Act as hazardous, and that he was a merchant, engaged in the sale of dry goods and ready-to-wear articles in the town of Natchitoches, Louisiana; that being desirous of having a home built for himself he contracted with plaintiff to build it for him; that the building of the dwelling was no part of his, Iglehart’s, trade, business or occupation nor incidental thereto; that he was' not engaged in the business of erecting houses and that, therefore, the relations between him and plaintiff did not come under the operation of the Employers’ Liability Act.

We are reluctant to decide a case on an issue not squarely raised by the pleadings, but in order for plaintiff to recover he must establish not only the fact of the accident and the extent of the disability resulting therefrom but also' that he was an employee of Iglehart and that the latter was engaged in a hazardous business, trade or occupation within the meaning of the Employers’ Liability Act, or that by special agreement before the accident he and Iglehart had elected in writing to come under the operation of the Act.

And while the fact that the relations between plaintiff and Iglehart did not come under the operation of the Workmen’s Compensation Act was only brought to our attention in defendants’ brief, we are constrained to give effect to the evidence in the record showing this fact.

There is no evidence even tending to show that Iglehart was engaged in a hazardous trade, business or occupation within the meaning of the statute or that by agreement between him and plaintiff before the accident they had elected to, in writing, come under the operations of the Act.

On the contrary, the undisputed evidence shows that plaintiff was engaged in • the retail dry goods business and that the building operation in which plaintiff was hurt was Iglehart’s only undertaking in that line and was an effort on his part to have a home built for himself.

It is alleged in Paragraph IX of plaintiff’s original petition that:

“Your petitioner agreed to be bound with the said Iglehart by the terms and conditions of the Employers' Liability Act, and the Acts of the Legislature later amending said Act.”

And, in Paragraph XI thereof:

“That the injury sustained by your petitioner while working for the said Iglehart comes within the provisions of the Employers’ Liability Act or Law of Louisiana, and petitioner is entitled to compensation under said law as set forth in Paragraph VII hereof, and has made amicable demand without avail.”

These allegations cannot be deemed equivalent to allegations that defendant Iglehart was engaged in a hazardous business, trade or occupation within the meaning of the Workmen’s Compensation Act or that by agreement entered into between plaintiff and Iglehart before the accident they had elected to come under the operations of the Act. And even if they could be deemed equivalent there is no evidence in the record even tending to show either condition.

The business arrangements between plaintiff and Iglehart were governed by a written contract which is in evidence and Article 14 thereof provides that:

“Iglehart will procure at his own expense accident bond to cover the laborers at work, including Blane (the plaintiff).”

It may be that plaintiff is entitled to judgment against the Assurance Corporation on the bond for his injuries; but this is not a suit on the bond nor was the bond itself introduced in evidence.

The defendant, General Accident, Fire & Life Assurance Corporation, Limited, in its answer admits that J. T. Iglehart is insured by it against loss or damage that he might sustain under the Employers’ Liability Act in connection with the construction of the dwelling, but as there is no evidence in the record tending to show that Iglehart was engaged in any trade, business or occupation defined as hazardous by the Act, or that he and plaintiff before the accident elected, in writing, to come under the operations of the Act, liability on the part of the Assurance Corporation under the bond has not arisen, and as this is a suit to recover under the Workmen’s Compensation Act, the plaintiff’s demands must be rejected.

It. is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and that plaintiff’s demands be rejected and his suit dismissed at his cost, reserving to him, however, whatever rights he may have, if any, to recover frl>m the General Accident, Fire & Life Assurance Corporation, Limited, on the bond given by it to its co-defendant, J. T. Iglehart.


text:
    No. 2550
    Second Circuit
    PLUNKETT v. SIMMS OIL COMPANY
    (June 30, 1926, Opinion and Decree.)
    (Oct. 4, 1926, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160 (e).
    The appellate court will remand a workmen’s compensation case for the purpose of determining the amount of disability to plaintiff since the operation for hernia performed after the trial of the case.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Claiborne. Hon. John S. Richardson, Judge.
    Action by Needham Benjamin Plunkett against Simms Oil Company. There was judgment for plaintiff and defendant appealed.
    Judgment reversed and case remanded for further testimony according to law.
    William C. Boone, of Homer and Julius T. Long, of Shreveport, attorneys for plaintiff, appellee.
    J. Fair Hardin, of Shreveport, attorney for defendant, appellant.
   REYNOLDS, J.

In this case the defendant admitted liability and furnished plaintiff with an operation for hernia.

The operation was pronounced by eminent surgeons-as being entirely successful, and it is further testified by one of them that plaintiff is in better condition physically since the operation than he was before the accident.

But all of the surgeons who testified admitted that plaintiff had a tender spot at the upper end of the hernia scar that to some extent rendered him less able to do work of a 'reasonable character.

It is admitted by plaintiff that he can do some light work, but there is no evidence in the record by which' we can determine the difference between plaintiff’s ability to earn wages before the accident and his ability to earn wages since the accident.

For the above reasons, this case is remanded to the lower court for further trial as to the condition and effect of the operation and as to plaintiff’s ability to earn wages since the accident. /'And the judgment; of the District Court is reversed. All costs to await the final event.


author: ODOM, J.

text:
    No. 2114
    Second Circuit
    PAGE & HILL CO. v. SHREVEPORT-ELDORADO PIPE LINE CO.
    (June 30, 1926. Opinion and Decree.),
    (Oct. 4, 1926, Rehearing Refused.)
    (Nov. 3, 1926.. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus T>y the Editor.)

    1. Louisiana Digest — Sales—Par. 46, 58; Obligations — Par. 97.
    The taking of an order for poles was an executory contract of sale, but when the order was accepted by the seller and the poles appropriated to the order and delivered to the common, carrier, the contract became a completed sale at the place of shipment and there-: after the order could not be countermanded by the buyer.
    2. Louisiana Digest — Sales Par. 148, 149; Obligations — Par. 169.
    Where a contract of sale has been executed by the seller by delivery of the goods to the shipper but the buyer refuses acceptance of them, the remedy of the seller is for the enforcement ■ of the contract and not a suit in damages.
    Appeaj. from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Page and Hill Company against Shrevepórt-Eldorado Pipe Line Company. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Wise, Randolph, Randall and Freyer, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys, for defendant, appellee.
   ODOM, J.

This is- á suit to recover $912.00 for a lot of cedar poles which plaintiff shipped to defendant on December 6, 1922.

In answer, defendant denied that it ordered the poles from plaintiff and, on the contrary, alleged that it ordered, the poles from Interstate Electric Company , of Shreveport, Louisiana, and that it had no contractual relations with plaintiff and owed it nothing.

Defendant further alleged that it ordered the poles from Interstate Electric Company because of its representations that it had the poles at Kansas City and could ship them from that- point immediately and’ make quick delivery and for that reason alone it ordered them from said Interstate Electric Company.

Paragraph “V” of defendant’s answer reads—

“Your defendant denies that it evfer or'-1"* dered any poles from- said plaintiff, but that its contract was with the Interstate Electric Company as aforesaid, and denies that it is under any obligation to said plaintiff tp pay it for the same.

“And further answering the plaintiff’s demands, your defendant shows that while it had some communications with said plaintiff- with reference to said shipment, it at all times believed and considered that-it was dealing with the Interstate Electric Company as the principal and was bound to pay, if at all, the said Electric Company for said poles; that while said poies were ordered on December 2, 1922, for 'a rush order, the same did not arrive at Eldorado, Arkansas, until January 10, 1923, or more than thirty (30) days after the same had been ordered, too late for it to use them as it had been forced to purchase them elsewhere.”

In paragraph “III” of the answer, it' is alleged that on December 9, 1922—

“It notified the Interstate Electric Company to cancel such order, and the Electric Company ..wired said plaintiff cancelling said order; that it had no dealings with said plaintiff except' as set forth and considered it was dealing entirely with the Interstate Electric Company, from whom it contracted to purchase said poles, and said Interstate Electric Company recognized the right of your defendant to cancel said order, and advised the plaintiff of the can-, eellation thereof, and it' is not indebted to the plaintiff in any sum because its contract and agreement was made with the Interstate Electric Company and not with said plaintiff.”

The lower, court rejected plaintiff’s, demands, but reserved its right to sue defendant for damages, and defendant has appealed.

OPINION.

It will be noted by the above references to and quotations from defendant’s answer that it interposed the sole defense that it had not purchased the poles, from plaintiff and therefore it owed plaintiff nothing.,,,

Incidentally it is .set up in the answer that -the' poles were to be shipped, from Kansas City in • order that quick delivery might be made and that otherwise defendant would not halve ordered them fróm the Interstate Electric Company.

The • testimony introduced on trial shows that the only point stressed was^that the poles were ordered from the. .Interstate Electric Company and that the order was cancelled.

However, the brief filed in this court by counsel for defendant indicates that that defense has been abandoned entirely, for counsel state—

“The defense is, that this is an executory. contract of sale with a suspensive condition; that the only right plaintiff had was to sue for damages for breach of contract and not for the 1 purchase price of the goods.”

And further quoting from said brief—

“Plaintiff should have brought this suit-for damages. He did not do so.”

And it is further stated in defendant’s brief that in the case at bar the defendant, had agreed to buy from plaintiff certain-telegraph poles delivered' at Eldorado. The' argument throughout the brief is that the contract was executory and did not amount to a sale; therefore, when defendant can-celled the order, plaintiff’s only remedy was to sue for damages, and the only authorities cited are in support of that theory.

Under the strict rules of pleading and ¡practice, the only question which the coilrt should consider are those raised by the pleadings as filed or as they may be amended or enlarged by the introduction of testimony without objection.

However, as the - lower court seems to have based its decision upon the point. raised in defendant’s brief and as counsel for plaintiff urge no objection thereto, we shall pass upon that point as well as that specially urged in the pleadings.

On the point raised by defendant’s answer, we find that the Interstate’ Electric Company of Shreveport was at the time of the transaction agent for Page & Hill Company, the plaintiff, with authority to solicit orders for cedar poles in this territory, as shown by contract dated August 1, 1922, filed in evidence. And while Mr. Gray, who represented defendant in giving - the order for the poles, testified that all his dealings were with Interstate Electric Company, he did not say that he was not aware of this agency when he gave the order. But whether he knew that or not we think is immaterial, because subsequent to the date on which the order was placed '-Gray was informed that the order had been placed with plaintiff and he, Gray, representing defendant, took up negotiations directly with plaintiff, as is shown by his telegram dated December 7, 1922, which reads as follows:

“Page and Hill, Minneapolis, Minn. We placed order for car of poles with you through Interstate Electric Company upon being guaranteed shipment from Kansas City. We are greatly disappointed and inconvenienced by shipment having been made from other point. We expect you to do everything possible to rush car to destination. (Signed) Shreveport-Eldorado Pipe Line Co.”

This telegram shows conclusively that defendant knew that it was dealing with plaintiff, which completely disposes of the defense raised in the answer, and it also disposes of defendant’s contention, suggested in answer but not contended for in brief, that it should not accept the poles because they were not shipped from Kansas City as was originally agreed upon; for by communicating with plaintiff, as defendant did in the telegram, defendant recognized the fact that the poles were shipped from another point and tacitly at least agreed to accept them. It thereby waived the other defense.

Mr. Gray admitted that he sent the telegram of the 7th.

There are also numerous letters in the record written by plaintiff to defendant which Mr. Gray admits he received.

With this testimony in the record, it is readily understood why counsel are shifting their position and seeking another defense.

Referring now to the point raised and stressed in counsel’s brief that this was an executory contract and that the transaction did not ripen into a sale, we have reached the conclusion that the testimony does not support their contention.

The order for the poles was placed with plaintiff by defendant through plaintiff’s representative by telegram as follows:

“Shreveport, La., 11-29-22. Page & Hill Company, 717 Bryant, Bldg., Kansas City, Mo. Ship Shreveport-Eldorado Pipe Line Company, Eldorado, Arkansas, three hundred fifty, twenty foot five inch and seventy-five twenty-five foot five inch Northern White Cedars. Ship immediately from stock over Missouri Pacific. Trace same as this is very urgent.

(Signed) “Interstate Electric Company.”

Upon receipt of this telegram, at plaintiff’s Kansas City office, the order was repeated by wire to plaintiff’s Minneapolis office. The order was there accepted and the poles loaded on car December 6th and delivered to a railroad company which issued its uniform bill of lading therefor on the 7th of December, the bill of lading showing that the shipment was consigned to defendant at .Eldorado, Arkansas.

The situation presented therefore is that the poles were ordered by defendant, the order was accepted by plaintiff, and the poles segregated from plaintiff’s common stock and delivered to a common carrier and consigned to defendant.

This constituted a completed transaction as . between plaintiff and defendant, and the poles became the property of the defendant at the point of shipment.

In the case of State vs. Shields, 110 La. 547, 34 South. 673, the testimony showed that Shields took orders for the sale of whisky in Winn parish where the sale of intoxicating liquors was prohibited. The orders were to be filled by Webb, a liquor dealer in Ouachita parish, where the sale of liquors was permitted. The orders when taken by Shields in Winn parish were forwarded to Webb at Monroe to be filled and the liquor shipped out. Shields was indicted and convicted in Winn parish for selling intoxicating liquor and the question was presented, whether the sale was made and completed in Winn parish or in Ouachita parish.

The court held that the taking of an order and forwarding it to Webb at Monroe was purely an executory contract, but that it ripened into a sale, a completed contract, when the order was accepted by Webb, the goods segregated from his common stock and delivered to a carrier, and that the sale was made in Ouachita parish and not in Winn parish.

In that case the court quoted approvingly from Machem on Sales, section 721, as follows:

“Upon the making of a contract for the sale of a part of a larger mass of goods thereafter to be supplied, no particular goods, however, being designated, it is clear that no present title does or can pass thereby. The contract at this point is purely executory, and it cannot be effectual to transfer title until it has become attached to some specific goods upon which it can operate. What is essential now is the appropriation of the goods to the contract.” , "

And further from the same authority, section 725:

“Where, from the terms of the executory agreement to sell unspecified goods, the vendor is to dispatch the goods, or do anything to them that cannot be done until the goods are appropriated, he has the right to choose what the goods shall be, and the property is transferred the moment the dispatch or other act is commenced, for then an appropriation is made, finally and conclusively, by the - authority in the agreement.”

Counsel cite the above case as supporting their theory, but we think the holding is clearly against them.

As already stated, counsel argue that the transaction in the case at bar was never more than an executory contract.

The poles ordered were at the time the negotiations began at Minneapolis and were part of a common stock which plaintiff owned, just as the liquor for which Shields took orders was part of Webb’s common stock at Monroe, Louisiana. The court held, in the Shields case, that the taking of the orders and forwarding them to Webb did not constitute a completed contract and a sale in the parish of Winn, notwithstanding it was contemplated that the liquor should be delivered to the customer in the parish of Winn; but that when Webb received the order, accepted it, segregated the goods from his common stock and delivered the same to a common carrier, the transaction became complete in the parish of Ouachita.

The same is true with reference to the transaction in the case at bar. The taking of the order for the poles was an executory contract of sale, but when the order was accepted by plaintiff and the- poles appropriated to the order and delivered to the common carrier, the contract became a completed sale at the place of shipment.

See: Claflin vs. Mayer, 41 La. Ann. 1048, 7 South. 139.

Succ. of Welsh, 111 La. 801, 35 South. 913.

And other authorities to the same effect.

Counsel say that this case is governed by Article 2458 of the Civil Code which provides that—

“When goods, produce, or other objects, are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller, until they be weighed, counted or measured; * *

The converse of the proposition, however, necessarily is, that when the goods or other objects. are counted, measured and appropriated to' the contract the sale is complete, and that is what took place in the case at bar; for the goods were counted, set apart and shipped.

See: 35 Cyc. 291.

As to executory and executed contracts, see 35 Cyc. 274.

As to segregating and setting apart, see 35 Cyc. 315.

■ But it is contended that this was a sale ' under a suspensive condition, that it never ripened into a completed sale, for which reason defendant .had a right to countermand the order, and in brief counsel say:

“The delivery at Eldorado was the suspensive condition in the executory contract of sale; that the' poles not having been, delivered it is obvious that the plaintiff could not collect the purchase price.”

Mr. Gray testified that the poles were to ■be delivered to defendant, at Eldorado,' . Arkansas. . Without further explanation, we > construe that to mean that they ,we.re to be' shipped to defendant at Eldorado. In other words, Eldorado was designated as the point to which they , should be shipped. They had to be shipped to some point. Defendant had no .use for them as long as they remained in Kansas City or Minneapolis. The telegram ordering the poles reads, in part:

“Ship Shreveport-Eldorado Pipe Line Company, Eldorado, Arkansas.”

An order for goods which merely designates a point to which the goods are to be shipped should not be construed, in the absence of explanation, that the sale would not be complete unless the goods were delivered at that point. If the law were otherwise, no sale of goods on orders would be complete unless the goods were actually received.

While Mr. Gray says the goods were to be delivered at Eldorado, Arkansas, he does not say that it was understood that in order to complete the sale they were to be delivered there. The goods were not purchased subject to inspection and approval. Defendant placed an open order for them and nothing remained for the completion of the sale except the acceptance of the order, the appropriation of the goods thereto, and the delivery to the carrier; all of which was done.

The delivery was made to the Minnesota Transfer Company and finally to the Missouri Pacific Railway Company, the carrier designated by the purchaser. This was a delivery to the purchaser.

35 Cyc. 316.

If the agreement is to sell goods f.o.b. a designated place, such place will ordinarily be regarded as the place of delivery.

35 Cyc. 174.

But there was no agreement in this case to ship'the goods f.o.b. Eldorado, Arkansas. That place was only designated as the point to which the goods were to he shipped. The fact that the freight charges were to he- paid by the purchaser and deducted from the bill did not make it an f.o.b. Eldorado, Arkansas, shipment.

See Kessler & Co. vs. Manheim, 114 La. 623, 38 South. 473; Alling vs. Bach, 2 La. Ann. 746.

Defendant did not attempt to cancel the order until after the sale was completed. At the completion of the sale defendant became bound for the price. It is not contended that the poles did not reach Eldorado. They reached that point in January, but were not accepted.

For the reasons assigned, it is therefore oj'dered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff, Page & Hill Company, do have and recover judgment against defendant, Shreveport-Eldorado Pipe Line Company for the full sum and amount of nine hundred and twelve dollars with legal interest thereon from judicial demand and all costs.


text:
    No. 2598.
    Second Circuit
    BAKER v. TEXAS PIPE LINE COMPANY
    (June 30, 1926, Opinion and Decree.)
    (Oct. 4, 1926. Rehearing refused.)
    (Nov. 29, 1926. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant Par. 158.
    Under the Workmen’s Compensation Law of Louisiana an injury sustained by an employee immediately after the close of the day’s work and while he is still on the employer’s premises and in the act of retiring therefrom, arises out of and in the course of his employment.
    Bullimore vs. Carr Foundry Co., 132 Md. 491.
    Jones vs. La. Cent. Lmbr. Co., La. Cts. of App. Ad. Sheets, No. 4, 1063.
    Provost vs. Gheens Realty Co., 151 La. 508, 92 South. '98.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. F. X. Ransdell, Judge.
    Action by Marion L. Baker against Texas Pipe Line Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Yernis Morgan, of Shreveport, W. H. Cook, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Randall and Freyer, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff sues defendant under the workmen’s compensation law for $20.00 per week for not exceeding 300 weeks, commencing May 27, 1925, with legal interest on each installment from its maturity until paid, and $250.00 for physician’s services and medicines.

He alleges that on the date mentioned he’ was in the employ of defendant at a daily wage of $4.50 and while performing services arising out of an incidental to his employment he sustained injuries, consisting of a broken leg, lacerations of the body, and a strained and lacerated ankle, that temporarily totally disables him to do work of any reasonable character.

He alleges that he had finished the day’s work and put away his tools in a warehouse of defendant’s in an enclosure and attempted to get upon a moving motor truck of defendant’s leaving the enclosure for Oil City, where he resided, for the purpose of riding to his home, and that before he had fully gotten on the truck his body came in contact with a post of the gate of the enclosure as the truck was passing through the opening and was thereby knocked from the truck and fell on a cattle guard and was injured.

Defendant denied liability, and alleged that plaintiff was injured some time after five o’clock while attempting to board a truck that was leaving its premises; that the truck was not at the time engaged in any service for or in connection with defendant’s business; that the truck had been hired by defendant from its owner who provided a driver therefor; and that the truck had not been and was not being used for the purpose of transporting plaintiff or defendant’s other employees.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and he appealed.

OPINION.

The first question to be decided is whether, under the circumstances shown by the evidence, defendant is liable to plaintiff under the workmen’s compensation law.

The accident in which plaintiff received his injuries occurred immediately after the close of the day’s work and while plaintiff was leaving defendant’s premises. His account of how it happened is as follows:

(Testimony, page 12):

“Q. I will ask you to state concerning the injury in question, I will ask you to state about as' near as you can approximately the time of day it occurred? '

“A. It was right after five o’clock.

(Testimony, page 13):

“Q. Right after five o’clock?

“A. . Little before or little after, cannot say, had no time piece myself.

* *

“Q. At the time you were actually hurt, what were you doing at that time?

“A. I jumped on the side of a truck to go to Oil City, started by the * * * out of the gate and a post knocked me off.

“Q. I will ask you if you had put up your tools for the day’s work?

“A. Yes, sir.

“Q. Where did you put them?

“A. In the tool house around the corner.

“Q. What is that commonly called, the warehouse?

“A. Yes, sir, tool house.

“Q. At the time you were injured, I will ask if you were proceeding on or off the premises of the defendant; were you going to or from work?

“A. Going from work.

“Q. I will ask if you were on the outside of the yard, on the outside of the enclosure commonly used by the Texas Pipe Line Company?

“A. When I started to get on the truck I was inside.

“Q. Then what happened?

“A. Started off and I jumped on the truck, I had my coat half on and half off, could not get it on, the truck started off when I went to get on and. I went through the gate post.

“Q. Before you got to the gate — did you get on the truck — state whether or not you got on the truck?

“A. About half way.

“Q. Then what happened?

“A. Hit the gate post, got knocked off and went through the cattle guard.

“Q. What kind of position were you in when you hit the gate?

“A. Hanging on my stomach; could not get on or off.”

Defendant’s witnesses testified that at the time of the accident plaintiff had his coat partly on and partly off and had run some little distance to catch the moving truck and caught up with it just as it was about to pass through the gate and put his foot on part of the truck to lift himself up on it and his foot slipped off and he fell into the cattle guard.

We do not think it material so far as defendant’s liability is concerned whether plaintiff was. knocked off the truck by his body coming in contact with the gate post or whether he slipped off after having gotten on it. The evidence shows that plaintiff was leaving his employer’s premises at the close of the day’s work and that the entrance at which he was hurt was one commonly used by defendant’s employees in leaving the premises, whether walking or riding.

Defendant insists that under the authority of Wyatt vs. Alabama Petroleum Company, 2 La. App. 499; it is not liable.

In our opinion that case and the case at bar are not analogous.

In the Wyatt case, the employee, at the time he was injured, had finished the day’s work and left the premises of the employer, had travelled from a quarter to a half mile from his place of work, had crossed Dorcheat Bayou, and had turned aside from the path leading from his place of work to his boarding house.

In the present case, plaintiff had just finished the day’s work and was leaving the premises of his employer and had not loitered on the premises or otherwise delayed his departure, when the accident occurred.

The usual rule followed in Workmen’s Compensation cases appears to be that a man’s employment does not begin until he has reached the place where he is to work or the scene of his duty and does not continue after he has left the premises of his employer.

Bradbury, Workmen’s Compensation, 3rd ed. 468.

And it is ordinarily held that if an employee is injured on the premises of the employer in going to or from work he is entitled to compensation for such injury.

Honnold, Workmen’s Compensation, paragraph 122.

Bradbury, Workmen’s Compensation, 3rd ed. 473, and authorities cited.

The employment is not limited to the exact moment when the workman reaches the place where he begins his work or to the moment when he ceases that work.

We are convinced that, under all the circumstances of this case, the accident complained of arose out of and was incidental to plaintiff’s employment.

Baltimore Car Foundry Co. vs. Rukicata, 131 Md. 491, 104 Atl. 157; 4 L. R. A. 115.

Provost vs. Gheens Realty Co., 151 La. 508, 92 South. 98.

Myers vs. La. Ry. & Nav. Co., 140 La. 937, 74 South. 256.

Lagrone vs. McIntyre Lumber Co., 1 La. App. 564.

This brings us to the question of damages.

Immediately after the accident the plaintiff, under the direction and care of defendant, was sent to a doctor who treated his injuries; but the treatment was not a success, and later they were trated by Doctor Slicer.

Dr. E. L. Sanderson, a witness for defendant, who saw plaintiff at the time Doctor Slicer did, testified, page 58:

“Q. What condition did you find his leg in?

“A. Well, when he came to us he had on a splint, which we removed, and found that his leg had swollen enormously, to such an extent the circulation was cut off and the leg was covered with blebs, large blisters, and the- skin was breaking down; in other words, it looked like gangrene was setting in. Wp could not make a very careful examination because of the enormous swelling and the condition of his leg; we thought the best thing to do would be to treat it to keep from losing the leg, so there was no effort made to reset the leg. The whole leg was as hard as could be.”

The plaintiff testified, pages 19 and 20:

“Q. I will ask you do you have free use of that leg?

“A. No, sir.

“Q. Does it ever pain you?

“A. All the time.

“Q. I will ask you to state the circumstances in which you suffer pain from that leg?

“A. From this ankle where it is broke at cannot lift, natural walk, ordinary walk, and to lift anything, cannot lift it.

“Q. ' Can you put your weight on it and walk along without pain?

“A. No, sir.”

This evidence, satisfies us that plaintiff is entitled to judgment for the amounts claimed by him in his petition, subject to credit for the amounts paid by defendant for doctors, surgeons, medicine . and hospital bills, not exceeding $250.

For the reasons assigned, it is therefore ordered, adjudged and decreed that plaintiff, Marion .L. Baker, do have and recover judgment against the defendant, Texas Pipe Line Company, Inc., for the sum of two hundred and fifty dollars, less a credit of whatever amounts defendant may have paid out for medicines, doctors, surgeons and hospital charges, not exceeding that amount, and for the further sums of twenty dollars per week; during his disability, not exceeding three hundred weeks, the first payment being decreed due May 27, 1925, with legal interest on each installment, from its maturity until paid; together with all costs in both courts.


text:
    No. 2448
    Second Circuit
    FITZGERALD v. KATZENSTEIN AND WIENER
    (June 30, 1926. Opinion and Decree.)
    (Oct. 4, 1926. Rehearing Refused.)
    (Nov. 3, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Party Walls — Par. 6, 7.
    Under Article 676 of the- Civil Code, a neighbor has the right to make an adjoining wall a party wall by paying to the person who has made the advance half of what he laid out for its construction. This is the law, even though the wall had enhanced in value between the time it was constructed and the time it was used by the neighbor.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Mrs. Helen K. Fitzgerald against J. Katzenstein and Sam Wiener, Jr.
    There was judgment for plaintiff for. smaller amount than prayed for.
    Plaintiff, appealed.
    Judgment affirmed. .

      Keeney & Dimitry, of Shreveport, attorneys for plaintiff, appellant.
    Wallace, Lyons & Peters; Thigpen, Heroic!, Lee & Cousin, of Shreveport, attorneys for defendants, appellees.
   ODOM, J.

Plaintiff and defendants are owners of adjoining lots on Texas street in the business section of the city of Shreveport. In the year 1914 both lots were vacant. During that year plaintiff erected a three-story brick building on her property, using nine inches of the adjacent lot on which to rest a wall. •" Defendants subsequently became the owners of the adjoining lot and in the year 1924 erected thereon a brick building, using the ' wall erected by plaintiff.

The cost of constructing the wall erected by plaintiff on the line between the adjoining properties in the year 1914 was $3587.60. The value of the wall enhanced so that at the time defendants made use of it in 1924 it' was worth $7568.12.

Defendants having used the wall in 1924 without paying for it, plaintiff brought this suit for $3784.05, one-half the value thereof at the time it was used.

Defendants admit liability, but contend that they owe only $1793.80, one-half the cost of constructing the wall in 1914, and they tendered that amount, plus costs, during the trial of the case.

The lower court rendered judgment in favor of plaintiff for $1817.82, which was one-half of the cost of constructing the wall plus the accrued costs. Plaintiff appealed to the Supreme Court. That court found that the amount in dispute, after defendants’ admission that they owed $1793.80, was only $1990.26, which is below the minimum appellate jurisdiction of that court, and the case was accordingly transferred to this court.

See Fitzgerald vs. Katzenstein, et al., 159 La. 64, 105 South. 226.

OPINION

The facts in the case are not disputed. The plaintiff built a wall eighteen inches thick on the property line, using nine inches of the adjoining lot. The cost of construction, when the wall was erected in 1914, was $3587.60. In- 1924, when defendants appropriated the wall, its value had enhanced to $7568.12.

It is admitted that plaintiff made no demand for half the cost of construction at the time the wall was built. The filing of the suit', it seems, was the first demand.'

The question presented for our determination, therefore, is one of law, viz.; Are defendants required to pay plaintiff one-half the cost of constructing the wall, or are they liable for one-half the value thereof in 1924 when they appropriated it?

Article 675 of the Civil Code provides that he who first builds in cities and towns may rest one-half of his wall on the land of his neighbor, and Article 676 of the Code reads as follows;

“If the neighbor be willing to contribute for his half to the building of the wall thus raised, then this wall is a wall in common between the proprietors. The neighbor who has refused to contribute to the raising of this wall preserves still a right of making it a wail in common by paying to the person who has made the advance the half of -what he has laid out for its construction, according to the rules hereafter established.” (Boldface type ours.)

Plaintiff’s contention is that an adjoining proprietor who for any reason has not, contributed to the erection of a.wall built partly on his property must, in order to make it a wall in common, pay one-half, of the value at the time he makes use of it, in case the wall has enhanced in value after its construction.

To so hold, we would have to read the above quoted article out of the Code. The language of the Code is clear and unambiguous. It provides in language too clear to be misunderstood that even though the adjoining proprietor refuse to contribute to the expense of erecting the wall he “preserves still a right of making it a wall in common by paying to the person who has made the advance, the half of what he has laid out for its construction”.

There might arise conditions and circumstances under which he would be. permitted to make use of a wall in common by paying less than half the cost of construction, as will be shown later, but under no consideration can he be required to pay more. The law specifically “preserves” to him the right to make it a wall in common, and the only condition imposed upon him for so doing is, that he pay to the “person who has made the advance, the half of what he has laid out for its construction”. He has that right without qualification as to the time he makes use of it or any other conditions or circumstances. He can never be called upon to pay more than one-half the cost of construction.

In support of their contention, counsel cite the cases of Augustin vs. Farnsworth, et al., 155 La. 1053, 99 South. 868, and Canal Villere Realty Co. vs. Gumbel R. & S. Co., decided by the Orl. Ct. App. in 1924.

In the case of Augustin vs. Farnsforth, 155 La. 1053, 99 South. 868, supra, the facts were that the wall was built by the plaintiff in the year 1920 at a cost of $4,936.50. The defendants began to use the wall in February, 1922. In June, 1922, the plaintiff brought suit against the defendants demanding $2,468.25 — one-half the cost of construction. The wall was not worth as much in 1922 as it was when built in 1920, and defendants contended that they were bound to pay only one-half the value of the wall as it stood when they began to use it in February, 1922. There was judgment in the lower court in favor of the plaintiff for $1,539.51, one-half its value at the time the wall was made use of by the defendants, and the judgment was affirmed on appeal.

The question in that case, therefore, t^as not whether the neighbor who makes use of a wall is required to pay more than one-half the cost of construction in case it enhances in value, but whether he may make use of it by paying less in case the value of the wall has diminished, and the court held that he could. After quoting Article 676 of the Civil Code, the court said:

“By the terms of this article, a neighbor must pay half the cost of construction when he has refused to contribute to the raising of the wall.* * *”

A similar statement of the law is found in Grailhe vs. Hown, 1 La. Ann. 140. The court said:

“By this last article (Article 672, now Article 676) it is clear that the neighbor who has refused to contribute to the expense, is bound to pay the cost of it whenever he undertakes to make it a wall in common. * * * If, when called upon, he should refuse to contribute, or pay no attention to the notice, which amounts to the same thing, then and in that case the law binds him to reimburse his neighbor half the cost, whenever he makes use of the law (wall).

“But suppose no notice whatever is given of the erection of the wall, it is clear that the claim of the party for indemnity for half the wall, must rest on general principles, and cannot be regulated by this article (Article 676) which fixes the amount of indemnity against the party who had' refused to contribute, and, by its very limitation, extends to no other cases. * * *.” (Boldface ours.)

These are clear and concise statements of the law. It is true that in each of those cases the court held that the party-making use of the wall was hound to pay one-half of its value at the time it was used, but the walls had depreciated in value, and the court held in each case that because no notice had been given and no opportunity afforded to contribute the defendants were bound for only one-half of the value at the time used.

There is no suggestion or intimation in either case that if the value of the wall had enhanced subsequent to its erection the defendant would have been required to pay more than one-half of the cost of construction. The court’s reason in each case for holding that Article 676 did not apply and that the defendant was permitted to make use of the wall upon paying one-half of its value at the time used, was that the plaintiff had not notified the defendant and had given him no opportunity to contribute. As a penalty for his failure to do so he was awarded only one-half the value of the wall at the date it was used.

In the case of Graihle vs. Hown, 1 La. Ann. 140, supra, the court said:

“To recognize the right of the party erecting the wall to claim one-half the cost, without having given notice to his neighbor, would do violence both to the letter and spirit of the law.”

Under these holdings it is clear that in the case at bar if the value of plaintiff’s wall had declined she could recover only the value at the time defendants made use of the wall in 1834, for it is admitted that she gave no notice to the adjacent proprietor at the time she built in 1914. Then upon what law or theory can she claim more than the actual cost of construction? Under the express language of the Code, the defendants could make use of the wall at any time—

“* * * by paying to the person who has made the advance, the half of what he has laid out for its construction”

and in case the - value of the wall had declined she could recover that much only in case notice had been given and the neighbor had refused to contribute.

In the case of Auch vs. Labouisse, 20 La. Ann. 553, the plaintiff claimed of the defendant one-half the value of a partition wall. The defendant claimed that the wall was built several years before it was used by him and at a cost infinitely less than the amount claimed. The issue thus presented was identical with the one here presented. After disposing of the other issues raised, the court said:

“The main question, as between plaintiff and defendants, is, whether the Article 672 (now 676) or 680 (now 684) of the Civil Code shall be applied to this case. We are of the opinion that the former must apply.”

And quoting Article 672 (now 676) the court said:

“This article, we think, contemplates reimbursement to the party who erected the wall and nothing more. It says ‘by paying tí the person who has made the advance, the half of what he has laid out for its construction’. He has the advantage of using the soil of his neighbor for the support of half the wall, which half may become the property of such neighbor upon his reimbursing what the half cost.”

After citing the 'case of Graihle vs. Hown, 1 La. Ann. 140, supra, where the court said “it was held that this article did not apply, because the defendant became the owner of the lot after the wall was built, and could not therefore have been called on, and have refused to contribute to the construction, and should consequently not be made to pay more than the wall was worth when used by him”, the court went on to say—

“We have no occasion to deny the correctness of this doctrine, but we do not think it can be invoked to put the defendant in a worse position than he would be, if shown to have refused, when called on to contribute. The article says, if he refuses, he may still become part, owner of, and use the wall upon paying the half of its cost. If he should not or could not refuse, he certainly should not be made to pay any more. * * * We conclude that defendants are liable for only half of the price advanced by the plaintiff in this instance.”

In the case of Davis vs. Graihle, 14 'La. Ann. 338, the court said that 'the plaintiff having erected his house before defendant did was entitled to rest one-half of his wall on defendant’s property, which was done.

“If the latter had been willing to have contributed one-half of the expense for its erection, then it would have become a wall in common between the plaintiff and defendant. The latter not having offered to contribute, still preserved the right of making It a wall In common, by paying to the plaintiff the half of the cost of Its construction.” (Boldface ours.)

In the case of Florence vs. Maillot and Wood, 22 La. Ann. 114, is on all fours with the case at bar. There the plaintiff brought suit to recover the value of one-half of that portion of the party wall used by the defendant. The admissions in the record were that the half of the cost of the wall so used when it was built in 1851 was $326.84 and that it would have cost $596.00 to build the same half of the wall in 1866, when it was used. Plaintiff claimed the right to recover the latter sum. The lower court gave judgment for the former sum and on appeal the judgment was affirmed. Judge Howe, the organ of the court, saying:

. “We had occasion to decide in Auch vs. Labouisse, 20 La. Ann. 553, that in a case like the one at bar, the amount to be recovered by the plaintiff must be measured by the rules laid down in Article 672 (now Article 676) of the Civil Code.”

■ The facts in this case were identical with those in the case at bar.

In the case of Marion vs. Johnson, 23 La. Ann. 597, the court said:

“It is also well settled that the party building a wall in common, may recover from the other one-half the original cost of erecting it.”

Citing Florence vs. Maillot and Wood, 22 La. Ann. 114, and Auch vs. Labouisse, 20 La. Ann. 553, supra.

See: Monteleone vs. Harding, 59 La. Ann. 1147, 23 South. 990.

Cordill vs. Israel, 130 La. 138, 57 South. 778.

Board of Administrators vs. Israel, 132 La. 676, 61 South. 734.

Again referring to the case of Canal Villere Realty Co. vs. Gumbel R. & S. Co., decided by the Orl. Ct. of App., relied on by plaintiff, we find that the amount claimed was based on the cost of construction and plaintiff was allowed recovery on that basis; but the court found, to quote from the opinion—

“The testimony of Dreyfous is that there was no depreciation whatever in the plaintiff’s wall, only fourteen years old. He has not been contradicted. We cannot decide this case upon the hypothetical theories and speculations of persons not engaged in that line of business.”

Defendant there contended that there were not as many brick used in the construction of the. wall as plaintiff" claimed there were, and we draw the inference from what the court said that the defendant also claimed that the wall had deteriorated. The court having found that the wall had not deteriorated, gave- plaintiff judgment for the value Qf the wall when used, which happened to be the cost of construction.

Counsel have exhibited to us the record in that case, which shows that the Supreme Court refused to review the case on a writ, stating: “Writ refused. Judgment correct.”

An examination of the application for the writ discloses that the question involved in the case at bar was not presented to the Supreme Court, for counsel in their application says:

“We submit in the present case that the writ of review should be granted in order that this court may clarify the jurisprudence upon the question of whether, when a wall is built upon the boundary line by one adjacent owner, and the adjacent owner erects a building which is enclosed but not supported by said wall, such conduct amounts to the use by the latter of the wall belonging to the former as a party wall.”

This was the sole question presented to the court, and by refusing the writ it sanctioned the holding of the Court of Appeal on that point. There is nothing in the opinion of the Court of Appeal in the Gumbel case to indicate a holding that in case a party wall enhances in value between the date of its construction and the date on which the adjacent proprietor makes use of it the party erecting it can recover more than one-half the cost of construction.

If, however, as contended by counsel, the court did so hold, (we think it did not) it held against the express provisions of the Code and against repeated decisions of the Supreme Court as herein cited.

The lower court gave plaintiff judgment for one-half the cost of constructing the wall plus costs which had accrued up to the time of the tender. That judgment is correct, and is accordingly! affirmed with costs.


author: WEBB, J.

text:
    No. 2676
    Second Circuit
    BRITT v. TEXAS PIPE LINE COMPANY
    (June 30, 1926, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160 (a), 160 (e).
    The court will not order an injured employee suffering from hernia to undergo an operation or lose his right to compensation under the Workmen’s Compensation Act No. 20 of 1914.
    2. Louisiana Digest — Master and Servant —Par. 159, 160 (j).
    Where the evidence does not show the extent of injured employee’s disability but does show that he is disabled to some extent, there will be judgment under Section 8 of Subsection 1 (c) of the Workmen’s Compensation Act No. 20 of 1914 during the period of disability not exceeding three hundred weeks.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal- from the First Judicial District. Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by David N. Britt against The Texas Pipe Line Company. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellee.
    .. Wise, Randolph, Randall. and Freyer, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff seeks to recover judgment against defendant for compensation fqr permanent total disability to do any work of a reasonable character, alleged to have resulted from injuries received by plaintiff while in the discharge of his duties as an employee of the defendant.

The answer of the defendant was a general denial, and on trial there was judgment for plaintiff as prayed for, from which judgment defendant appeals.

OPINION.

The plaintiff testified that on July 30, 1925, while he was in the employ of the defendant as a laborer in laying a pipe line, and while in attempting to pick up a pair of tongs used in the work, the tongs hung and he ruptured himself; that he notified defendant on August 22nd and was sent by the defendant’s representative to a physician who found an incomplete inguinal hernia and who advised an operation, which plaintiff refused to undergo; that plaintiff, however, returned to his employment and continued in the discharge of the duties incident thereto until about the 1st of December, when he says that he received another strain which aggravated the hernia and which, he claims, has totally disabled him from doing any work.

■, There is no testimony of other witnesses as to the manner, time or place when the plaintiff claims to have received the injuries. It appears, however, that the plaintiff continued to perform the same or similar services after the date of the alleged accident on the 30th of July until the 1st of December and that on the latter date he was notified that he would be transferred to another place, and plaintiff being unwilling to be transferred quit the employment and several days after the last alleged accident he notified defendant of the. injury and demanded compensation, which was refused.

The defenses made are:

1. That plaintiff has failed to establish by a preponderance of the evidence that he received the injuries as claimed by hinr, and that such alleged injuries caused his disability.

2. That the evidence shows that the plaintiff could undergo an operation for the hernia, which would give him relief.

As stated, the only evidence in the record relative to the manner, time and place when the plaintiff sustained the strain which he claims caused the rupture, is that of plaintiff, and the only circumstance which might be said to throw any suspicion upon his testimony as to the facts sworn to by him, is that he did not make an immediate complaint of the injury claimed to have been suffered on the 30th of July nor of the injury claimed to have been sustained on the 1st of December, together with the fact that the injury stated to have occurred on the 1st of December was on the last- day of plaintiff’s employment.

The question of whether or not the plaintiff did in fact receive the injuries of which he complains, is dependent altogether upon the degree of credence which may be given to his statements, and although the circumstances of his failure to make immediate complaint and of the last injury having been suffered on the last day of his employment should be considered, we do not think that these circumstances can be sufficient weight to warrant us in rejecting the plaintiff’s sworn statement.

The trial court, in a written opinion, expresses the view that the only question in the case is as to whether or not the plaintiff should be ordered to undergo an operation or forego compensation, and from this we conclude that the statement of the plaintiff as to the manner, time and place of the accident was accepted, and we do not find anything in the record which indicates that this was erroneous.

On the question as to whether or not plaintiff should be ordered to submit to an operation, the record shows that the only physician who was called in the case was of the opinion that an operation could be successfully performed with the minimum of danger and that plaintiff’s ability to work would be restored, and counsel for defendant insists that whatever may have been held in other cases heretofore decided by this court, where an operation for hernia had been tendered, that the operation should be ordered under the evidence presented in this case.

We said, in Louis J. Martin vs. Wyatt Lumber Company, 4 La. App. 157, that—

“This question of whether or not an injured employee must submit to an operation for hernia or else forego compensation, is constantly agitating the bar and is fruitful of much controversy and litigation. We have considered the question thoroughly and our final conclusion is that we will not order an employee to undergo an operation for hernia or else lose his right to compensation.”

The opinion of the physicians who testified in that case was practically the .same as that of the physician who testified in the present case, and while the conclusion reached was somewhat based upon ■ the opinion of physicians who had testified as to the dangers of an operation for hernia in other instances, it was a clear expression of the rule which will be followed, and we are of the opinion that we should adhere to the ruling in similar cases where abdominal operations are tendered in compensation cases.

The judgment of the trial court fixed the period of compensation during the period of disability, not to exceed four hundred weeks. However, counsel for plaintiff, in argument before the court, stated that the plaintiff was not totally disabled and that the period of compensation should have been fixed at three hundred weeks, and we are of the opinion that the record sustains this view. However, the evidence does not show the extent of plaintiff’s disability or the amount which he is able to earn; but as the evidence does show that plaintiff is disabled to some extent, we shall, under these circumstances, fix the compensation with reference to the amount that the evidence shows the plaintiff was earning, without any deduction.

See Wm. M. McMullen vs. La. Cent. Lumber Co., 3 La. App. 562.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to fix the period of compensation for the period of disability not to exceed three hundred weeks, and as thus amended that the judgment be affirmed.