text:
    No. 13,663
    Orleans
    RAMON v. FEITEL HOUSE WRECKING CO. ET AL.
    (May 11, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)

      John Singreen and Warren M. Simon, of New Orleans, attorneys for plaintiff, appellee.
    Edw. Dinkelspiel, of New Orleans, attorney for Feitel House Wrecking Company, Inc., defendant, appellant.
    Felix J. Puig, of New Orleans, attorney for E. E. Ecuyer et al., defendants, appellants.
   HIGGINS, J.

Plaintiff brings this suit against the owners of a building and the contractor employed to demolish it, in solido, to recover damages, for personal injuries alleged to have been sustained by her on November 25, 1929, at 1:30 o’clock p. m., as a result of debris falling upon her while walking upon the sidewalk on the uptown lake corner of Canal and Basin streets, this city. The petition alleges a cause of action against the defendants under the doctrine of res ipsa loquitur.

Two of the three owners of the building answered (it having been impossible to effect citation upon the other), admitting that they were the owners of the building, but denying that they were in any manner at fault.

The defendant demolishing company admitted the accident, but denied that the plaintiff was injured, and averred that the accident was due to the fact that the building was an old one, in need of repair, and that before the work of demolishing the building was. commenced an adequate and proper rail, or .safeguard, was placed around the whole sidewalk, but that a police officer had ordered the removal of the rail to three or four feet -from the curb, in order to allow pedestrians to use that portion of the sidewalk; and that its employees were not guilty of any negligence in connection with the plaintiff’s injury.

There was judgment in favor of the plaintiff and against the defendants, in so-lido, for the sum of $471, and all three defendants have appealed.

The record shows that two of the defendants, together with a third party, were the owners of three three-story brick buildings located on Canal and Basin streets, this city; that they employed the other defendant, Feitel House Wrecking Company, Inc., to demolish these buildings; that on the day in question plaintiff was walking on the sidewalk on Canal street and had reached a point about fifteen feet past the corner of Basin street, when certain bricks, mortar, and debris struck her on .the head and right side of the body, knocking her unconscious to the pavement; that she was. taken into an adjoining building, where first aid treatment was administered, and then removed by Mr. Feitel to the Charity Hospital, for treatment.

We find, as our learned brother below did, that the plaintiff established a .prima facie case under the doctrine or theory of law known as res ipsa loquitur.

The leading case in this state involving that doctrine is- Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976, in which the court held:

(Syllabus) “Where a plaintiff cannot be expected to have any information as to the causes of an accident, whereas defendant must be assumed to be fully informed, and where the accident is of the kind which ordinarily does not occur when due care has been exercised, plaintiff need not allege nor prove the particular acts of omission or commission from which the accident resulted; but the accident itself makes out a prima facie ease, casting on defendant the burden to show absence of negligence, and this rule is of peculiar applicability in cases of boiler explosions.”

See, also, Horrell et al. v. Gulf & Valley Cotton Oil Co., Inc., 15 La. App. 603, 131 So. 709; Motor Sales & Service Co., Inc., v. Grasselli Chemical Co. et al., 15 La. App. 353, 131 So. 623; Scott v. Checker Cab Co., Inc., 12 La. App. 598, 126 So. 241; Drago v. Dorsey, 13 La. App. 115, 126 So. 724.

The defendant owners of the building did not raise the defense of independent contractor or that they had contracted away their liability by placing the responsibility upon the demolishing company, so those points are not before us.

The evidence of both the plaintiff and the defendant Feitel House Wrecking Company, Inc., tendá to show that tlie building in question was in a bad state of repair and, therefore, under the provisions of articles. 670, 2315, 2316, and 2322, R. C. C., the owners would be liable. The owners would likewise be liable if the accident were caused by the negligence of the Feitel Company, who, under the circumstances, was the agent and employee of the owners. The liability of the owners is, therefore, clearly established.

The defendant Feitel Company seeks to exculpate itself from liability by showing: First, that its employees were working on the rear of the building and did not do anything that would tend to cause the debris to fall; second, that it was not brick and mortar, etc., that fell, but .the wooden and iron gallery on the front of the building; and, third, that the police officer of the city of New Orleans, who ordered the removal of the railing which it had constructed, was the real party at fault, and hence, it is not liable.

The evidence satisfies us that the employees of the wrecking company were demolishing the building and, while they state that they were working in the rear of it, they were unable to offer any explanation of the cause of the falling of the debris or the gallery.

There is a conflict in the testimony as to whether the gallery or the mortar, bricks, etc., struck the plaintiff, but that circumstance is immaterial. If either of them struck her, .the wrecking company would be liable, unless it proved that it was free from fault. The evidence is also conflicting as 'to whether there were railings in front of the building to prevent pedestrians from going in close proximity to the building, plaintiff testifying that there were no such railings and the defendant’s two witnesses _ testifying that there were such railings. However, conceding ■ that there were railings and that the police officer instructed the employees of the demolishing company to leave a space of three or four feet for1 pedestrians to use the sidewalk and to block off only ■the remaining portion-, of the sidewalk, the wrecking company would still be liable, because, apparently, such an arrangement was inadequate to meet the danger to which pedestrians were subjected. Pedestrians would have a right to assume that the portion reserved for their use was-safe. It was in the nature of an invitation that they could ,use that portion of the sidewalk. The mere instructions by the police officer to the defendant wrecking company’s employees would not relieve it of its responsibility to the public to construct an adequate barrier or shed over the sidewalk to protect the pedestrians from being injured by falling debris. It was the company’s duty to properly arrange for such adequate protection before commencing the work. It is clear that the policeman did not tell the company’s employees what means should be adopted to protect persons, using the sidewalk. Even if he had instructed them to erect any inadequate guard, they would not have been obliged to obey him. The use of the railings was the idea of defendant wrecking company’s employees.

We have come to the same conclusion as the trial court — that the Feitel House Wrecking Company, Inc., has failed to exculpate itself from liability.

As to the quantum our learned brother below allowed the sum of $471, consisting of loss of wages, $70, physician’s charges, $51, and damages for pain, shock, and suffering, $350. The defendants contend that this allowance is excessive, and, the plaintiff argues that it is inadequate. Plaintiff is 55 years of age and previous to her injury was in good health. She was employed as a genera.’ housekeeper and servant, doing manual labor consisting of washing dishes, clothes, and keeping house, for which she received a weekly wage of $10. Her family physician treated her, making nine visits, for which he rendered a bill for $51. He testifies that he saw the patient one or two days after the accident, found her in severe pain, and administered morphine to alleviate her suffering. His examination revealed the fact that she was suffering from severe contusions of the right shoulder, arm, and forearm; ecchymosis (a discoloration of the skin caused by extravasation of blood, a bruise) of the skin over the right shouler, contusion and ecchymosis of the right foot and contusion of the right chest wall, and extreme shock and nervousness; that she was confined to her bed for a .period of about three weeks; that it was necessary to strap her shoulder and ankle; and that thereafter he treated her at his office and discharged her after a period of seven weeks. The doctor’s testimony is corroborative of the testimony given by the plaintiff.

The doctor for the defendant testified that, after having examined the plaintiff several days after the accident, in his opinion her disability would be for three or four weeks.

We are of the opinion that the amounts awarded by the trial court are fair and reasonable, and, under the circumstances, the judgment is affirmed, at appellants’ cost.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,730
    Orleans
    VINOT ET AL. v. LOUISVILLE & NASHVILLE RAILROAD CO.
    (May 25, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    Pomes & McCabe, of New Orleans, attorneys for plaintiffs, appellees.
    Denegre, Leovy & Chaffe and Harry McCall, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

The parents of Lionel Vinot bring this suit in his. behalf, claiming damages for personal injuries said to have resulted from an assault and battery committed by the flagman of the defendant carrier upon the boy while the latter was a passenger on its train on April 11, 1930.

The defense is that the boy was annoying a young school girl, who was also a passenger on the train, by placing his feet on the back of the seat on which she was sitting and pushing her forward, causing the girl and her books to fall on the floor, and that, when the flagman remonstrated with him, the boy cursed and abused the flagman and attempted ‘ to strike him, whereupon .the flagman slapped him in the mouth with his open hand and spanked him on his buttocks.

There was judgment in favor of the plaintiff for the sum of $300, and defendant has appealed.

The record shows that a number of school children used the defendant’s train to go to and from school, which they attended in the city of New Orleans. Plaintiffs’ son, aged 14 years, and about four and one-half feet in height, and weighing 90 pounds, was a passenger on the defendant’s train returning home from school. There was a little girl sitting in the seat in front of him, and the boy placed his feet against the back of the seat, and pushed her and her books forward, causing her and her books to fall on the floor. She appealed to the conductor, who, in a courteous and friendly manner, asked the boy to desist from teasing the child. After ■the conductor left, the boy again placed his foot on the back of the seat, and the little girl complained to the flagman. When he came to where the boy was. sitting, young Vinot still had his foot on the back of the seat, and simultaneously with ordering the boy to remove his foot the flagman kicked his foot down. The boy then jumped up and told the flagman to go beat his own children and mother, whereupon the flagman slapped him across the face several times, caught him by the neck, and punched him several times, in the body. He then pulled the boy to another seat, and forcibly threw him on the seat, and there held him down and administered' a beating to his face and body with his fists, striking the boy a numher of blows.

The flagman’s version of the occurrence was that the boy cursed and abused him, and that it was with a view of disciplining him and bringing him to his senses, because of the profane language he was using in front of the school children, that he slapped him in the mouth and thereafter spanked him in order to make the boy behave himself.

The trial court, in its reasons for judgment, said:

“*' * * The boy was teasing the little girl (as boys have been teasing little girls since the world began). It may well be the flagman was justified in interfering to stop him. Of course, it is' the duty of trainmen to protect a passenger from injury, or even' annoyance, at the hands of other passengers. But the action of the flagman grossly exceeded what the occasion required. The boy, fourteen years of age, was small and slight. The blows, which the flagman struck blackened his eyes, one of them nearly closing, caused his face to redden and swell and bruised his side and back. These injuries, are proved not only by the testimony of his schoolmates and his father and grandmother, but by that of Mrs. Netto and Doctor Rappanier, witnesses, who seemed without interest or partisanship. I have no doubt the facts, are as these two. state them. Even if the boy did push the little girl off her seat and scatter her books on the floor — and did so again after he had been reproved by .the flagman — and if he did use the bad language attributed to him, can it be said that the flagman was justified in inflicting on him so severe a beating? I observe the defendant claims the power not only to prevent, but .to punish misbehavior of a passenger. The trainman may be a policeman, but he is not a judge. The character of the boy’s injuries proves that the flagman was actuated by ill temper and that his purpose was not so much to correct misbehavior as to gratify his anger.”

If the flagman’s statement as to how he corrected the boy were true, it is certain that the boy would not have sustained the very severe injuries which he did. Our views are in accord with the opinion of our learned brother below.

He allowed .the sum of $300. Defendant contends that this amount is manifestly. excessive, and the plaintiff has answered the appeal, and asked that the award be increased. As a result of the beating, the boy sustained a swollen and bruised face, causing him to have two black eyes, one of which was partly closed, contusions of the head, ribs, spine, and back, and also an injury to his leg, where the flagman kicked him, all resulting in severe shock to his nervous system. The boy made four or five visits to the doctor’s office for treatment. His injuries were painful, but not serious or permanent. The award of the court below was for the pain, suffering, temporary disfigurement, and humiliation, because the boy was severely beaten in the presence of a number of his schoolmates. In the light of the awards in the following eases, we believe the • amount allowed is reasonable: Burrage v. Gill, 15 La. App. 126, 130 So. 857; Harvey v. Harvey, 124 La. 595, 50 So. 592; Linnan v. Linnan, 131 La. 535, 59 So. 981; Cerneglia v. Fratello, 144 La. 795, 81 So. 318; McVay v. Ellis, 148 La. 247, 86 So. 783.

For the reasons assigned, the judgment is affirmed.


author: WESTERFIELD, J.

text:
    No. 13,701
    Orleans
    HEGEWISCH v. SEIFERTH
    (July 1, 1931. Opinion and Decree.)
    Isaac S. Heller and Leopold Stahl, of New Orleans, attorneys for plaintiff, appellee.
    Eraste Yidrine and Jas. G. Schillin, of 'New Orleans, attorneys, for defendant, appellant.
   WESTERFIELD, J.

This is a suit for damages to plaintiff’s automobile alleged to have been caused by the negligence of defendant. The accident occurred at the intersection of Napoleon avenue and Claiborne avenue. The plaintiff, Adolpho Hegewisch, .was driving along Napoleon avenue from the river to the lake, and about 25 feet behind an automobile driven in the same direction by one Leon Tujague. At the intersection of Napoleon avenue and Clara street', several, blocks nearer the river than .the scene of the accident, the defendant, Miss Fannie Seiferth, entered Napoleon avenue, turned her car to the right, and started towards the lake, keeping abreast of the Tujague car. When the three cars reached the intersection of Claiborne avenue, a very wide street separated by a neutral ground, and where there is a semaphore signal light which as the cars approached showed' green, each of them continued across at the speed of about twenty miles per hour. Miss Seiferth, after signaling her intention to turn to the left on the roadway of Claiborne avenue, crossed in front of the Tujague car and suddenly stopped, with the result that the Tujague car struck her ear, and the plaintiff’s car struck the Tujague car. Plaintiff claims that Miss Seiferth had not succeeded in straightening out her car in front of the Tujague car at the time she stopped, and that her car was, consequently, almost broadside in the path of the Tujague car, and this would seem to be plausible, because of the testimony to the effect that most of the damage to the Seiferth car was. in the left rear section, but we do not regard the point as very important.

It is certain the accident was due to the sudden stopping of the Seiferth car. She explains her action upon the ground that before she could get into the far roadway and turn into Claiborne avenue, the semaphore signal had changed from green to amber, and from amber to red. Her counsel insist .that the Tujague and Hegewisch cars should have so controlled their speed as to stop without collision. Millsaps v. Hornsby, 6 La. App. 652; Youman v. McConnell, 7 La. App. 316; Swedman v. Standard Oil Co., 12 La. App. 361, 125 So. 481. It appears to us, however, that the cause of the accident was the failure of Miss. Seiferth to comply with article 1, section 4 (c) of .the traffic ordinance, reading as follows:

“A vehicle, when on a street divided by a neutral ground, desiring to turn to the left across the neutral ground shall turn the corner as near the left hand curb as possible.
“A vehicle intending to 'turn across the neutral ground should move to .the left hand side of the street when about fifty feet from the corner and hug the curb until the intersection is reached, then turn as in the illustration.”

According to Miss Seiferth’s testimony, she signaled and started; to cross the path of the Tujague car after she had entered the intersection of Claiborne avenue, and she either did not succeed in getting directly in front of the Tujague car and, consequently, was on an oblique angle, or, if she did straighten out before the accident, there was not time enough for the driver of the car behind her to stop without collision, after she signaled that she intended to stop. The Tujague car, which is shown to have been equipped with hydraulic brakes, was compelled to stop very suddenly, causing .the collision in its rear with the Hegewisch car, resulting in damages for which this suit is brought.

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

HIGGINS and JANVIER, JJ., absent, and take no part.

MORENO and DUNBAR, Judges ad hoc, participating.


author: ARTHUR A. MORENO, Judge ad hoc.

text:
    No. 13,731

      Orleans

    BORDLEE v. DI CARLO
    (July 1, 1931. Opinion and Decree.)
    Wm. R. Kinsella, of New Orleans, attorney for plaintiff, appellee.

      Milner & Porteous and F. Carter Johnson, Jr., of New Orleans, attorneys for defendant, appellant.
   ARTHUR A. MORENO, Judge ad hoc.

This is an appeal from a judgment of the First City -Court awarding plaintiff the sum of $107.50 for damages to his Chevrolet automobile suffered in collision with a Ford automobile owned and driven by the defendant.

Plaintiff alleges that on November 20, 1929, he was the owner of a Chevrolet coach, which was being driven down Dauphine street by Amildar Breaux, at a moderate rate of speed, and that when his car reached Frenchmen street, it was struck by the Ford automobile of the defendant, which was being driven out Frenchmen street, from the river to the woods; that as a result of the contact of the two cars, plaintiff’s car got out of control and ran upon the sidewalk on Dauphine street and turned over. He alleges that his. car was damaged to the extent of $115, and that he was compelled to hire another car for $35 during .the period of repairs, and prayed for a judgment for $150.

The defendant answered, denying any negligence on his part, and setting up that the accident was due solely to the reckless and negligent manner in which the automobile of the plaintiff was being driven. He alleged that he approached the intersection of Dauphine street at a speed of about twelve miles an hour and came practical-' ly to á stop and looked up Dauphine street, which is a one-way street, and saw the automobile of plaintiff being driven in his direction at a speed of thirty-five miles an hour. He says that he had entered upon the intersection, when the plaintiff’s automobile was suddenly swerved across the pathway of his automobile and so near that. his car slightly came in contact with that of the plaintiff, and that the speed of plaintiff’s car was such that it was run upon the sidewalk and turned over.

Of course, the contention of the plaintiff and of the defendant both cannot prevail. It is clear, from the fact?, of the record, that the accident was due to the negligence of the driver of plaintiff’s car, or to that of the defendant. Upon a review of all the testimony and the physical facts of the place where the collision occurred, we are of the opinion that the judgment of the trial court is correct and should be affirmed.

Breaux, the driver of plaintiff’s car, testifies that he was coming down Dauphine street, which has car tracks in its center, and that when he reached Frenchmen street,, he slowed down as there was a car in that street, which, however, had stopped to let him by. As he speeded up across the intersection, the car of the defendant, driven on the right side of Frenchmen street, came into Dauphine street and struck his. car near the right front fender and threw it out of control, and caused it to run upon the sidewalk, where it turned over. ,

Michel Bozant, who was a passenger in the Bordlee car, says that the plaintiff’s car had gotten practically- across Frenchmen street, when Di Carlo came driving out that street at thirty miles an hour. He, however, is not in a position to testify with any degree of certainty as to the speed because he saw the Di Carlo car almost at the moment of the impact. His testimony regarding the speed is doubtless the result more of after impression than a definite judgment based upon his view of the car in sufficient time to enable him to form a fair conclusion. Another witness for the plaintiff testifies that he was standing in the middle of the block on Dauphine street, between Elysian Fields and Frenchmen streets, and that he saw the Di Carlo car going out Frenchmen street at a high rate of speed. His evidence, however, does not impress us, because of the fact that he was at such a distance from the accident and in such a position that he could not have seen very much of the Di Carlo car until it had come clearly into Dauphine street, even if his attention had been attracted to it prior to the accident.

However, it is hardly required to balance very evenly the testimony of plaintiff’s witnesses and that of the defendant, because the defendant himself clearly convicts himself of the negligence that caused the accident. He says he was driving his car in Frenchmen street, at a speed of fifteen or eighteen miles an hour, and slowed down when near Dauphine street to a speed of ten or twelve miles an hour. He says he knows it is a dangerous intersection as cars frequently come down Dauphine street. When he looked up Dauphine street, he says he saw the plaintiff’s car coming down at about thirty or thirty-five miles an hour. He continued to cross Dauphine street until his automobile had reached the second rail of the street car track, when plaintiff’s car sought to drive in front of him and came in contact with his car.

It is. clear that, if his testimony is to be accepted upon its face, he was guilty of negligence when he was in such a situation that he could have stopped his ear but instead drove it across the pathway of plaintiff’s car which he saw coming at what was an excessive rate of speed. It is manifest from his testimony that having seen the other car, he dismissed it wholly from his mind and remitted to its driver ail of the measures of care necessary to avoid an accident. Had he, under the situation which confronted him, exercised reasonable care, he would have stopped his car and permitted plaintiff’s car to go by and the accident would thereby have been avoided. It was his negligence, in attempting to cross in .the face of a car coming at thirty-five miles an hour, and only a short distance away, that was the proximate cause of the accident, and he alone must bear its consequences.

We are not particularly impressed with the testimony of the defendant. The plaintiff and another witness testify that he admitted that the cause of-the accident was his. negligence, and when called upon for a ■ denial of this admission, he denied it not directly and forcefully, but weakly and evasively. Witnesses accused of making hurtful admissions ordinarily express their denial in terms of resentment, and not in a half apologetic way, and when a denial is couched in terms which lack force, it is reasonable to suppose that the denial is the result of an attempt to avoid the consequences of the admission, rather than the expression of truthfulness.

The defendant urged as one of his defenses that plaintiff’s car was being operated in the jitney business in violation of a city ordinance, and consequently he should not be entitled to recover. The evidence shows that the car was so used, but it is elemental that the violation of a traffic .ordinance that has no relationship to the cause of the accident, affords no grounds to deny the plaintiff his right to recover for damages to his property. If it were otherwise, punishment for violation of public laws would reside not in government but in the individual who might will to inflict punishment by the destruction of property, which punishment might be wholly disproportionate to the offense. Such a defense is, of course, unthinkable.

The plaintiff made out the extent of his damages to the car, but the judge of the lower court was convinced that he failed to sustain his claim to the $35 which he alleged he paid for the rental of an automobile.

We are of the opinion that the judgment of the lower court is correct, and it is therefore affirmed.

WESTERFIELD, J., and DUNBAR, JR., J. ad hoc, participating.


author: JANVIER, J.

text:
    No. 13,588
    Orleans
    MERCANTILE LEAF TOBACCO CO. v. GARCIA-QUARTARARO CO., INC., ET AL.
    (May 25, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    J. J. Cullinane, of New Orleans, attorney for plaintiff, appellee.
    Woodville & Woodville, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

^Plaintiff in the original petition was the Mercantile Leaf Tobacco Company, which styled itself as a corporation organized under the laws of the state of Illinois.

Defendants are Garcia-Quartararo Co., Inc., and M. Quartararo.

By supplemental petition Fred E. Hummel sought to make himself plaintiff as liquidator of the said corporation.

The suit is based on twelve promissory notes, being the last twelve of a series consisting originally of twenty. The first six of the twelve notes sued cn' are payable to Mercantile Leaf Tobacco Company and bear no endorsement transferring ownership. The last six are payable to J. M. Falk and bear a rather peculiar endorsement reading “J. M. Falk to Mercantile Leaf Tobacco Company.” Just what this endorsement means would be rather doubtful were it not for the apparent concession that it was intended by Falk tq endorse the notes to and make them payable to the Mercantile Leaf Tobacco Company.

Defendants contend that neither the Mercantile Leaf Tobacco Company nor Fred E. Hummel, as liquidator thereof, is entitled to a judgment for the reason that the evidence fails to show either the original organization and existence of the corporation or the proper authority of Hummel as liquidator thereof. ■

Defendants also present other contentions with reference to the merits of the controversy which, because of our views on the preliminary question, we find it unnecessary to. consider.

As to the proof of the original existence of the corporation we find the record remarkably barren except4 for certain oral testimony taken by deposition and to which numerous objections were made when the depositions were offered in evidence.

While it is true that the objections are to some extent ambiguous, their purpose seems to have been to challenge the sufficiency of the proof offered to show the original existence of the corporation and to prove the authority of the liquidator.

The existence of a foreign corporation cannot be presumed and in the face of attack must be established by legal proof. In a suit by a foreign corporation on notes our • Supreme Court has held that if the existence of a plaintiff corporation is questioned, proof thereof must be tendered and that if objection to the form of proof is offered, the charter must be properly authenticated. Granite Insurance Co. v. Pralon, 10 La. Ann. 22.

Nor does the record contain proper proof of the dissolution of the corporation nor of the election of the liquidator thereof, nor of his authority to sue for the collection of the notes in question.

A liquidator of a corporation, if his authority is called in question, must make due proof of his authority and the mere fact that he is in possession of a note payable to a corporation does not, of itself, show his authority to sue thereon. The note, though negotiable in form, had not been negotiated.

The court below rendered judgment in plaintiff’s favor on the 'notes.

We are of the opinion that plaintiff has failed to offer sufficient proof and that, therefore, although the judgment in its favor should be reversed, nevertheless, a definitive judgment dismissing the suit should not be rendered.

It is therefore, ordered, adjudged and decreed that the judgment appealed .from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of defendants and against plaintiff dismissing its suit as in case of non-suit.


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 13,714
    Orleans
    RANSON-ROONEY v. OVERSEAS RAILWAY, INC., ET AL.
    (February 16, 1931. Opinion and Decree.)
    (April 13, 1931. Rehearing Refused.)
    (May 16, 1931. Writs of Certiorari and Review Granted by Supreme Court.)
    (August 1, 1931. Opinion and Decree in Supreme Court.)
    Lemle, Moreno & Lemle, Emile Pomes and Charles J. McCabe, of New Orleans, attorneys for plaintiff, appellant.
    Andrew R. Martinez and Gordon Boswell, of New Orleans, attorneys for defendants, appellees.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action.

The plaintiff, Louise Ranson, brought this suit in her own behalf and as natural tutrix of her four minor children, claiming damages ex delicto due to the injury and death of her husband, Joseph Rooney, alleged to have been caused by the negligence of the agents 'and employees of the Overseas Railway, Inc., and/or the Mississippi Shipping Company, Inc., which corporation we shall hereafter refer to as defendants. Plaintiff claimed a total of $69,488.20.

The petition alleges that during the month of March, 1929, Rooney was employed as a mechanic by the Todd Engineering, Dry • Dock & Ship Repair Company, Inc. (which corporation we shall hereafter refer to as -the Todd Company) ; that the defendants are the owners and operators of the steamship Seatrain, which specializes in the transportation of loaded freight cars between the port of New Orleans and foreign ports; that defendants own and operate a crane which lifts loaded freight cars from the dock and transports them to and from the Seatrain, the crane being permanently attached to the dock; that on March 31, 1929, Rooney was sent by his employer, the Todd Company, to make certain repairs to the Seatrain, which vessel was, at the time, docked alongside the wharf adjacent to the crane ;t that, while Rooney was so engaged, one Baghley, the superintendent of defendants in charge of the vessel and the crane, “instructed said Rooney to leave the Sea-train and to go up on the crane, which had suddenly developed trouble, and there examine the engines and gears which are used to lift and convey said loaded freight cars”; that the crane was in excess of one hundred feet high and built immediately on the docks; that it was equipped with a lifting rail, which extends out into the river a distance of approximately 125 feet, the end being directly above the hold of the ship; that Baghley brought Rooney to the top of the crane, where he might ascertain the trouble which had developed; that Baghley and Rooney were on their knees, with their heads near the running gear, listening for unusual sounds in the gears and/or engines, for the purpose of detecting the trouble, when the operator of the crane, an employee of defendants, negligently,- and without notice or warning to Rooney, started the movement of the crane, with the result that Rooney’s head was crushed by a bracing beam, which only cleared the engines on the platform, upon which Rooney and Baghley were, by a few inches; that Rooney, after suffering considerably, died as the result of his injury on September 23, 1929. It is also alleged that the Employers’ Casualty Company, “the insurers of Todd Engineering Dry Dock & Repair Company, Inc., have recognized their liability to petitioners herein, in that Joseph E„ Rooney died from injuries sustained while in the employ of the Todd Engineering Dry Dock & Repair Company, Inc., and they have expended and are going to expend to petitioners approximately the sum of $7,095.20; that therefore any judgment obtained in this matter should be subject to the Employers’ Casualty Company’s claim for the sum of approximately $7,095.20.”

The ’ argument in favor of the exception is based upon the contention that Rooney’s remedy as against defendants is solely in compensation and not ex delicto; that, under the allegations of the petition, Rooney was, at the time of his injury, the special employee of the defendants, notwithstanding his general employment by the Todd Company; that, if he was not the immediate employee of defendants, he was their remote employee through the Todd Company, and expressly given a right of action in compensation under section 6 of Act No. 20 of 1914, as amended by Act No. 85 of 1926, the compensation statute.

Answering this argument, counsel for plaintiff deny that Rooney ever became the employee of defendants immediately or remotely, and aver that at all times he remained the employee of the Todd Company, which recognized its liability, and through its insurers agreed to pay proper compensation under the statute; that Rooney, in leaving the vessel, where he had been sent by his employer for the purpose of making certain mechanical repairs, at the behest of defendants’ superintendent, in order to render such assistance as he might in the emergency created by the sudden failure of the crane to function, simply acted as any reasonable person would have acted under the circumstances, and was at no time out of character as the employee of the Todd Company.

In so far as section 6 of the compensation statute is concerned, plaintiff’s counsel contend that its provisions, when applied to the facts, as alleged in this case, are destructive of the argument of their opponents, for the reason that it would inevitably result in establishing the Todd Company as an independent contractor, whose employee, Rooney, would have no right of action against defendants in compensation, citing Horrell v. Gulf & Valley Cotton Oil Co., Inc., 15 La. App. 603, 131 So. 709, 714, decided December 15, 1930.

The question for our determination, whether Rooney, # under the facts, as alleged in the petition, would have a right of action in compensation against the defendants, is most interesting, and has been made more so by .learned counsel, who have briefed and argued the matter ably and thoroughly. The particular section of the compensation statute relied, on (section 6) has been the subject of previous consideration by this court. Clementine v. Ritchie, 1 La. App. 296; Gaiennie Co., Ltd., et al. v. Chisolm, 3 La. App. 358; Seabury v. Arkansas Natural Gas Corp., 14 La. App. 153, 127 So. 25; Horrell v. Gulf & Valley Cotton Oil Co., Inc., supra. It reads as follows:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for +he execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall he liable to pay to any employee employed in the execution of the work or his dependent any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him.”

We said in the Horrell case:

“A study of section 6 of the act and recognition of the purpose intended to be served thereby, and an analysis of the many cases to which we have been referred, leads us to the conclusion that a general employer or principal may without retaining liability to the employees of an independent contractor, employ such independent contractor to do .such special work as is not generally done directly by others engaged in the same line of business as is the principal, such as special construction, or even such unusual repairs as are ordinarily made by specialists, not customarily within the direct employ of the principal.”

If we concede, arguendo, that in the instant case defendants were principals and the Todd Company not an independent contractor, such concession would involve the admission that the repairs undertaken by Rooney were ordinary in their nature, and such as, in the usual course of defendants’ business, that of loading and operating their vessel, would be undertaken by its employees, an admission in no sense justified by the allegations of the petition, since it is barren of any allegation which would permit us to determine whether the repairs to the crane were such as might be the subject of an independent contract. The mechanical repair of a lifting device, such as a crane, when other than routine and trivial, would certainly be unconnected with the business of loading and transporting freight cars by sea. The construction and repair of the instrumentalities by which one’s business is conducted, forms no part of the business itself. In Schneider’s Workmen’s Compensation Law, volume 1, p. 127, we find the following quotation from an Alabama case (Stephenson v. Primrose, 8 Port. (Ala.) 155, 33 Am. Dec. 281), cited in the footnote:

“The term ‘business,’ in common parlance, means that employment which occupies the time, attention and labor.”

The same authority quotes from a Minnesota case (State ex rel. Lennon v. District Court of Douglas County, 138 Minn. 103, 164 N. W. 366) as follows:

“When we speak of a person’s trade or profession, we generally refer to that branch of the world’s activities wherein he expends his usual everyday efforts to gain a livelihood.”

It cannot be said, generally speaking, that the repair of defendants’ crane was a part of its gainful occupation, and, unless the repairs were of such a character as to require a little difficulty in accomplishment, and such as might have been undertaken by defendants’ employees, it could hardly be said that the repairs would constitute any part of the business of defendants within the meaning of section 6 of the Compensation Act, and, as we have said, the petition fails to enlighten us in that respect. But it is our opinion that section 6 has no application. Rooney was, we believe, the direct employee of defendant.

The petition is careful to allege that the purpose of the Todd Company in sending Rooney to the locus in quo was to make certain repairs upon a vessel, and that, while engaged in making these repairs, Baghley, the superintendent of the defendant company, “ordered and instructed said Rooney to leave the Seatrain, and to go up on the crane which had suddenly developed trouble,” and, as illustrating the negligence of Baghley in so doing, states that he “had supervised and had charge of the crane from its beginning and should have been familiar with its construction,” whereas Rooney “had never before worked on the crane and knew nothing of its steel or other construction.” At another point in the petition, again referring to Baghley’s conduct in relation to Rooney, it is said that he “ordered Rooney to leave the work (on the Seatrain) and to go up on a crane, upon which he had never before worked to attempt to locate some trouble which had to be immediately repaired,” It thus appears that Rooney was not an expert in repairing cranes, but, in the emergency which confronted defendants’ superintendent, was taken away from the work which he had been sent to do, in the hope that he might be able to assist in the repair of the crane.

It is argued that, in so far as Rooney is concerned, his action in responding to the directions of Baghley were such as any reasonable employee might be expected to do under like circumstances, and ’ that it was simply an enlargement qf the scepe of the original purpose for which the Todd Company had been engaged by the defendants; the formality of obtaining the consent of the Todd Company being dispensed with because of the exigency of the situation. Rooney, it is said was still the employee of the Todd Company, and his dependents are entitled to compensation from the Todd Company. In fact, it is alleged in the petition that the insurers of the Todd Company voluntarily acknowledged their liability in the premises.

Whether Rooney was entitled to compensation at the hands of the Todd Company is not an issue in this case; consequently we express no opinion in that regard. We are only concerned with the question of whether he could recover from defendants, and that question depends upon whether or not he became their employee under the circumstances of this case. It is conceded that a workman might be in the general employ of one employer and a special employee of another. It is also conceded that the question of compensation is not important, and also that it is not necessary that the contract of hiring be expressed, but may be implied from the ’ circumstances. Section 2 of Act No. 20 of 1914, as amended by Act No. 85 of Í926; Marks v. Rochester R. Co., 146 N. T. 181, 40 N. E. 782. It must also be conceded that Rooney could not be, regarded as a volunteer. The superintendent in charge qf defendants’ business was certainly within the scope of his employment in the emergency which confronted him. whatever may have been the limitations of his authority otherwise.

“One who performs services for another at the instance of an accredited employee of the latter, is not to be deemed a volunteer, where it appears that the inducing employee was clothed with actual authority to engage assistance, or where there existed an emergency from which the law implies an authority to secure the help of other persons.” 28 R. C. L., “Workmen’s Compensation,” 761.

The nature of Rqoney’s employment by defendants was casual, in that it arose by chance or accident. Webster defines casual as “happening' without design and unexpectedly, coming without regularity, occasional.”

Referring, again, to Schneider’s work on Compensatiqn Law, we find, in volume 1, the following language, on pages 132-134, sec. 29:

“There are few states whose acts do not exclude casual employment. The term casual employment, when it appears in the act in the conjunctive with ‘usual business of the employer’ is not as significant and is not the subject of so much contention and varying construction as has arisen over it in those ‘ states where casual employments are exempted from the compensation act, regardless of whether or not they are in the usual course of the employers’ trade or business. Under the former type of act the important question to determine is whether the particular employment is in the course of the employer’s business. If' it is, it is covered by the act and it is immaterial whether or not the employment is casual.”
“As illustrative of the distinction between the wording of the acts in respect to casual employment, under- the Massachusetts Act no one whose employment is ‘casual’ can recover compensation, while, under the British Act, and all acts containing similar provisions, one whose employment is ‘of a casual nature’ comes within the acts, provided it is for the purpose of the employer’s trade or business. In ascertaining the meaning of the term casual as used in the Massachusetts and similarly worded acts the determinative point is the contract of service, while, under those acts patterned after the British act the determinative point is the nature of the service rendered.”

But in this state casual employees are not excluded from the benefits of the Compensation Law, and we are aware of no decision of our courts which has denied recovery upon the ground that the employment was casual and temporary. See, also, B. & O. S. W. R. Co. v. Burtch, 263 U. S. 540, 44 S. Ct. 165, 68 L. Ed. 433.

Rooney, it is argued,' was a mechanic in the employ of the Todd Company sent to the scene of the accident for the purpose of making mechanical repairs for the defendants, having been engaged so to do through his employer, the Todd Company, and that, whether ordered by Baghley (the wotd “ordered” is said to have been inadwertently used) or not, his character as an employee of the Todd Company was not affected, nor was a dual employment created upon the ground that the repairs to the crane were but. a reasonable extension of the original purpose for which the Todd Company, as employer, had despatched him to defendant’s premises. The difficulty with this view is that it fails to take into consideration the fact that it imposes a responsibility upon the Todd Company which it did not originally contemplate. It may well be that Rooney’s employer had every confidence in his ability to repair the vessel Seatrain because of his familiarity with the work he was called upon to do upon the vessel, and was willing to assume full responsibility for its proper execution and, at the same time, be wholly without any confidence in his capacity to repair a crane, with which, according to the allegations of the petition, he was unfamiliar, and concerning which they were unwilling to assume responsibility. Let us suppose that, in attempting to repair this crane, Rooney had damaged it through his lack of skill and knowledge. Could it be said that the defendants would have had an action in damages against the Todd Company, who knew nothing whatever of Rooney’s undertaking to make the repairs? Would the master be liable for the servant’s delinquencies in such circumstances?

We are of opinion that, for the purpose of the work which Rooney was engaged in at the time of his fatal accident, he was the direct and special employee of the defendants, and his dependents are entitled to claim compensation under the Workmen’s Compensation Law, Act No. 20 of 1914 and its amendments, and not entitled to prosecute an action sounding in damages ex delicto, under article 2315 of the Civil Code.

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

JANVIER, J.

(dissenting). I do not believe that the allegations of the petition are sufficiently definite with reference to what Rooney was engaged in doing - to warrant a holding that he became the direct -employee of defendant when he undertook at the request of defendant, to investigate the ‘ crane in an effort to discover what was causing the trouble therein. He was merely consenting, on behalf of his employer, to an enlargement of the purpose for which he was sent to the scene. If I send to a master plumber and ask him to send me a mechanic to fix a water pipe, and, while the mechanic is working on the water pipe, I discover trouble in the drain pipe, and ask the mechanic to fix that also, I do not thereby make him my employee. He still remains solely in the employ of the master plumber, and I have merely enlarged the scope of the original work undertaken. The question of whether he was impliedly authorized by his employer to agree to do additional work depends on the nature of that additional work and on whether it was such as an ordinarily intelligent and conscientious employee could be expected to undertake on behalf of his employer. If the additional work is of such a nature, then it can be said that the original contract is enlarged. If the new work is of an entirely different kind, and it is fair to presume that the employer would not have undertaken it, then it is not an enlargement of the scope of the work originally undertaken, but is, in fact, new work. In such case the employee would lose his character as an employee of the original master, and would become an employee of the new master, but, if it was work which any reasonable man would know the master would approve, then the employee would retain his character as the employee of the original master.

Here the allegations of the petition are not full, and do not clearly show what the new work was, nor how closely it resembled the original work undertaken, and I believe plaintiff should be given an opportunity to amend, so as to show just what was the new work deceased was requested to perform. In other words, we cannot tell from the allegations of the petition whether the new work was an enlargement of the scope of the original contract, or was so different from that originally contemplated as to constitute deceased, quo ad the new work, the employee of the new employer.

If the new work was such as might be considered as a mere enlargement of the scope of the original contract, then all the more is it necessary that we be fully enlightened as to the nature thereof, so that we may determine whether it was such work as is within the contemplation of section 6 of Act No. 20 of 1914. If it was work which could not be contracted away without retention of compensation liability, then such liability is retained, and, since the Compensation Act is exclusive in all cases in which it applies, defendants’ only liability is such as is created by that act. If, however, the work is of a nature which is not contemplated by section 6, and which may be contracted away, then, if there was negligence on the part of defendant, tort liability may exist. I cannot say from the allegations just what was the nature of the work, and therefore believe that the suit should not be dismissed, but that an opportunity should be afforded plaintiff to amend ,his petition so as tó show clearly what the nature of that work was. I think we should follow the ■principle so often announced and so lately followed in Dawson v. Jahncke Dry Docks, Inc. (Court of Appeal, Parish of Orleans, decided January 5, 1931) 131 So. 743: That we will not dismiss a suit under an exception of no cause of action where the exception of no cause of action is based on mere omission of allegations. Plaintiff should be given an opportunity to make the necessary allegations before the suit is finally dismissed.

I believe the matter should be remanded to afford an opportunity to amend, and therefore respectfully dissent.


text:
    No. 13,697
    Orleans
    SCHARFENSTEIN COAL CO., INC., v. CLAIBORNE
    (July 1, 1931. Opinion and Decree.)
    (August 20, 1931. Rehearing Refused.)
    " Milner & Porteous and F. Carter Johnson, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Arthur M. Curtis, of New Orleans, attorney . for defendant, appellee.
   WESTERFIELD, J.

This suit results from an intersectional collision between a Buick automobile and a coal truck laden with a ton of coal. Plaintiff, the owner of the coalj truck, sues for damages to his truck in the sum of $206.01. Defendant reconvenes and claims damages to his Buick car in the sum of $110. There was judgment below in defendant’s favor dismissing plaintiff’s, ' original demand and awarding him judgment in reconvention, as prayed for.

Plaintiff’s coal truck was proceeding out Washington avenue from the lake toward the river, and defendant’s Buick, driven by himself, was coming down Carondelet street in the direction of Canal street. The collision occurred at a point somewhat beyond .the middle of the intersection, and nearer the river than the lake side. The usual conflict concerning the. speed of the colliding vehicles is found in the record, but we are convinced that neither the truck nor .the Buick car were guilty of excessive speed. ’ The intersection where the accident occurred is equipped with a semaphore signal with ,the usual three-colored lights, red, amber, and green.

Section 14 of article 1 of the traffic ordinance, which has been introduced in evidence, reads, as follows:

“Police Semaphore Signals — The following semaphore signals for the movement of traffic are hereby established:
“(a) Red.- — When shown on any traffic signal, illuminated or otherwise, shall indies te that traffic ■ shall stop, and remain stopped as long as, the red signal is shown.
“(b) Green. — When shown in any traffic signal, illuminated or otherwise, shall indicate that traffic shall move in the direction of the signal, and remain in motion as long as the signal is shown.
“(c) Amber. — When shown in any traffic signal, illuminated or otherwise, and whether connected with a warning bell or not, shall indicate that a change is about to be made in the direction of the flow of traffic. When such amber signal is shown, traffic which has not already crossed the white) lines of the intersection, shall stop, but traffic which is already on the intersection shall continue to move until clear of the intersection, provided pedestrians shall be privileged to cross street intersections while such amber signal is showing.”

The driver of plaintiff’s truck left plaintiff’s employ and removed from the city before the date of the trial in the lower eourt, and plaintiff being unable to locate him, his testimony was not taken, but a party by the name of Franklin, who was riding on the driver’s seat of the truck at the time of the accident, testified that the truck entered the intersection on the green signal and had almost completed the crossing when he was struck by defendant’s Buick, knocked sidewise six feet, and overturned. Mr. James Johnston, was driving behind plaintiff’s truck a distance of about 50 yards. He corroborated Franklin’s testimony, and also testified that after the accident he examined the semaphore as it appeared from the Carondelet street intersection and discovered that the red light failed to burn, indicating that the mechanism was out of order. Mr. Scharfenstein, who arrived on the scene of the accident shortly after it happened, testified that he also inspected the traffic semaphore, and found that the red light did not show on Carondelet street, and that after the accident a police officer was placed there to direct the traffic.

On the other hand, defendant and two other gentlemen who were in his car testified that they entered the intersection at about twenty miles an hour on a green light, and were prevented from seeing the truck in the intersection because of a high brick wall at that corner, which obscured their vision.

We are inclined to believe that the witnesses on both sides were correct in essential details, and that both vehicles entered the intersection on a green light because of the fact that the semaphore was out of order. Two witnesses testified that the red light, immediately after the accident, did not show on Carondelet street, and three that the green light was showing' at the same time that the two other witnesses state that green was exposed to traffic approaching on Washington avenue. It is evident to oixr minds that the mechanism which controlled the change in the light from green to amber and amber to red on the Carondelet street intersection did not work, and that green was exposed to both lines, of traffic. • This being true, we find no fault with the operator of either vehicle, and impute the accident to the peculiar situation obtaining. Under the circumstances, neither party should recover.

It is therefore ordered that the judgment appealed from be amended, in so far as it awards judgment to the- defendant, plaintiff in reconvention, and against the plaintiff, defendant in reeonvention, and it is now ordered that .the defendant’s reconventional demand . be dismissed. Both parties. to bear their own costs. As thus amended, the judgment appealed from is affirmed.

JANVIER and HIGGINS, JJ., absent and take no part.

MORENO and DUNBAR, Judges ad hoc, participating. f


author: MORENO, Judge ad hoc.

text:
    No. 13,712
    Orleans
    HITE v. WOODVILLE & WOODVILLE ET AL.
    (July 1, 1931. Opinion and Decree.)
    Edna K. Gaudet, of New Orleans, attorney for plaintiff, appellee.
    Woodville. & Woodville, of New Orleans, attorneys for defendants, appellants.
   MORENO, Judge ad hoc.

This suit involves a question of fact. Plaintiff claims ■that the attorney employed to represent her in a damage suit was to pay one-half of the doctor’s bill. The attorney says that there was no such agreement and that the doctor’s, bill was to be borne wholly by the client.

There is clearly an issue of fact presented and, in view of the fact .that the attorney had the opportunity of reducing the contract to-writing, but instead of doing that, left it in an indefinite shape, and in view of the fact that the judge of the trial court found the facts to be against the attorney, and as we see no palpable error, we see no reason for not affirming that judgment.

For the reasons assigned the judginent appealed from is affirmed.


author: DUNBAR, Judge ad hoc.

text:
    No. 13,703
    Orleans
    McGEE v. INTERSTATE MOTOR EXPRESS, INC., ET AL.
    (July 1, 1931. Opinion and Decree.)

      Max M. Shaumburger, of New Orleans, attorney for plaintiff, app'ellee.
    "Woodville & "Woodville, of New Orleans, attorneys for defendants, appellants.
   DUNBAR, Judge ad hoc.

This is a suit by plaintiff, Jesse C. McGee, against the Interstate Motor Express, Inc., and one Leon Seandurro, in solido, for $123.95 damages sustained by plaintiff’s automobile on September 8, 1930, as a result of a collision with a truck owned by the Interstate Motor Express, Inc., and driven by Leon Seandurro. There was judgment in the lower court in favor of plaintiff on the main demand and dismissing defendant’s reconventional demand, and from this judgment defendant has appealed.

According to the testimony of plaintiff in this case, which is corroborated by disinterested eyewitnesses, plaintiff’s automobile was being driven on Valence street from the river in .the direction of the lake on the right-hand side of Valence street by plaintiff’s wife; that plaintiff’s automobile slowed down upon reaching Dryades street and then proceeded at a reasonable rate of speed to cross Dryades street and had actually crossed Dryades street and had either passed or reached the corner of the lakeside of the intersection of Dryades and Valence streets when the truck of defendant, which was being driven in the opposite direction on Valence street towards the river on the uptown side of Valence street and was approaching the Dryades street corner, suddenly swerved to the left either before or at the moment the intersection was reached, evidently for the purpose of going down Dryades street, and struck plaintiff’s automobile. Disinterested eyewitnesses testified that the driver of the truck apparently was not keeping a lookout and did not see the car of plaintiff and suddenly swerved into plaintiff’s car which had crossed Dryades street and had reached or was passing the uptown corner of Valence and Dryades streets. The testimony indicated that the truck swerved sharply to the left on Valence street evidently for the purpose of' turning down Dryades street either before it reached the intersection or at the intersection, whereas, if the driver of the truck had seen plaintiff’s car and had been driving with reasonable care, he would not have turned down Dryades until he reached the middle of Dryades street, and that a wider turn of this kind would have enabled the truck to clear plaintiff’s, car, and avoid the accident.

These facts are contradicted by' the testimony of the driver of the truck, and the driver’s testimony is corroborated by two disinterested ladies who lived in the neighborhood and saw the collision and who testified that plaintiff was responsible for the accident. The testimony of Mr. Tobin and the other disinterested witnesses of the plaintiff, which is substantially in accord with plaintiff’s testimony is more detailed and specific and less general in its nature than the testimony of the two witnesses of the defendant, and we see no good reason to disturb .the judgment of the trial court, which was evidently based on the testimony of the plaintiff's witnesses.

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

WESTERFIELD, Judge, and MORENO, Judge ad hoc, participating.


text:
    No. 13,643
    Orleans
    STUBNER v. RAYMOND
    (July 1, 1931. Opinion and Decree.)
    E. B. Charbonnet, of New Orleans, attorney for plaintiff, appellee. ' I
    Edward Rightor, Edwin J. Prinz and Henry G. Neyrey, Jr., of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

In this Suit plaintiff seeks to collect the sum of $129.81 alleged to be due him as the purchase price of two surveys of the steel construction of a proposed public school known as the Behrman School.

There was judgment below in plaintiff’s, favor as prayed for, and defendant has appealed.

It appears from the record that the defendant, Harold Raymond, is a contractor doing business in the city oí New Orleans and that the plaintiff is an engineer and has been engaged in the business of estimating the amount of steel required in certain proposed buildings and in supplying the contractors with a survey for use in connection with the preparation of their bids, the understanding being that if the successful bidder be one of his clients the entire cost of the survey should be borne by the contractor receiving the award but should an outsider be given the contract then the cost would be divided among those who received a copy of his survey. In this instance the award was made to an outsider and the defendant is called upon to pay his proportionate share of the expense of the survey.

Defendant denies having any contractual relations with plaintiff., and also states •that he has not been in the habit of using plaintiff’s surveys, it being his practice to make' his, own surveys. It is- true that plaintiff has failed to show that defendant was one of his regular customers or that he was a party to the original agreement under which these surveys were distributed, but the circumstances under which the survey was sent to Mr. Raymond’s office and his conduct thereafter with reference thereto seem to us to involve him with responsibility for payment of plaintiff’s charges.

Mrs. Kinnear,,a clerk in plaintiff’s office, testified that Mr. Raymond, as well as all the customers of plaintiff, was called over the phone and asked whether he desired a copy of the survey on the Behrman School, and that he replied, “Yes, of course, I want them”; that she phoned him in the belief that he was one of her employer’s customers; that they had furnished him several surveys in .the past and had had dealings with him ever since she had entered the employ of Mr. Stubner. Raymond was unable to deny this conversation' with Mrs. Kinnear, though he was of the opinion that it had not occurred. He admitted the receipt of the plans, and that he had retained them without comment.

We find as a fact that defendant ordered the surveys and kept them without complaint or objection. If he had any doubt as to the terms under which the plans were supplied him, he should have inquired. Not having done so and having accepted the plans, he should pay\ the customary price. This was the opinion of the trial court iipon .the issue of fact which alone is involved and we helieve its judgment to be correct.

Por the reasons assigned the judgment appealed from is affirmed.

DUNBAR and MORENO, Judges ad hoc, participating. ...


author: ELLIOTT, J.

text:
    No. 819
    First Circuit
    WILLIS v. STANDARD OIL CO. OF LA.
    (June 30, 1931. Opinion and Decree.)

      Newman & Jones, of Leesville, and Spearing, McConnell & McClendon, of New Orleans, attorneys for plaintiff, appellee.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellant.
   ELLIOTT, J.

Dr. Daniel O. Willis claims of the Standard Oil Company of Louisiana the sum of $778.75, as the result of a collision between an automobile belonging to him called the Hudson and a large heavy truck belonging to the defendant. The plaintiff claims $578.75 of the, amount stated on account of damages alleged to have been done to his car in the collision and $200 as loss sustained as. a result of having been deprived of its use.

The collision occurred during the evening of February 2, 1929, on the principal street of the town of Leesville, La., called Third street. This street is also a state and federal highway.

The collision took place while plaintiff’s automobile was being driven by his daughter, Miss Pearl Willis. Defendant’s truck was at the same time being driven by Grady Martin, one of its. employees.

Plaintiff alleges that the collision was caused solely by the fault, carelessness, negligence, and recklessness of the driver of defendant’s, truck, in coming out of the Standard Oil Company’s station, situated on the- western side of Third street, through its private driveway, into the street, in front of his car, forcing a collision.

Defendant denies the negligence, carelessness, and fault alleged against it by the plaintiff and charges, in turn, .that its truck was being driven at the time in a proper, cautious manner, and that the collision was due entirely to the fault, negligence, and carelessness of the driver of plaintiff’s automobile. Defendant specifically alleges that the brakes, on plaintiff’s automobile were defective and did not efficiently perform the service for which they were intended.

The answer contains a reconventional demand. The trial resulted in a judgment in favor of the plaintiff and against the defendant for $578.75 with interest, that being the amount which the plaintiff claims as damages sustained by his car and is presumably on that account. The item claimed by plaintiff for the loss of (he use of his car and defendant’s demand against the plaintiff in reconvention are not mentioned in the judgment and may therefore be looked on as having been rejected.

The defendant has appealed. The appeal was not answered. Our review is therefore confined to the correctness of the judgment rendered.

The pavement on Third street of the town of Leesville is '24 feet wide.

A diagram of the street shows an additional width on each side of the pavement called a; “shoulder,” which varies in width from 12 inches to 3 feet.

Defendant’s truck came out from a private driveway leading from defendant’s oil station to the street. This, driveway- was on the west side of the street. The truck was 17 feet and between 6 and 8 inches in length.

Miss Willis, the driver of plaintiff’s car, was going south on the street, while defendant’s truck after it entered into the street proceeded to cross it, taking an angling course making a left-hand turn; its purpose being to go north on the street.

Due to the width of the pavement, 24 feet, and the length of the truck, 17 feet and between -6 and 8 inches, and the course it pursued, it occupied almost the entire width of the street in its effort to get out on the east side, the side on which it belonged in order to be on its right side going north.

Plaintiff’s automobile was on the right-hand side of .the street, which was the side it belonged, in going south, but suddenly turned sharply to the left where it struck the motor of the truck; the motor being at the time within about 2 feet of .the pavement on the east side of the street. At the time of the collision the evidence shows that defendant’s truck in entering and crossing the street proceeded very slowly, probably about 5 miles, an hour, but a doubtful question is as to the speed at which plaintiff’s car was being driven at the time. We do not find any satisfactory evidence on .the subject. Plaintiff avers in article 4 of his petition that his automobile was. being driven “in a safe and scientific manner and that his daughter did not contribute to the said accident.”

Defendant in its answer denies this averment, but it is. not alleged that plaintiff’s car was being driven at excessive speed, nor that the collision was caused in that way.

Miss Willis testified that when she first saw defendant’s truck come out of the private driveway into the street ahead of her she imagined she was going about 20 or 25 miles, an hour. She was accompanied by a young gentleman friend who sat with her on the front seat, the back seat being occupied by another lady and young gentleman friend as guests. These parties, questioned about .the speed she was making at the time the truck first came into view ahead of them, were not more definite than their host.

The distance from them to the truck is also very indefinitely stated by them. Miss Willis says on the subject;

“Q. Did you, from the time you crossed Cavanaugh Avenue, which is the first street north of the Standard Station, at any time' look from the street?
“A. No.
“Q. From the time you saw the truck approaching the street, did you at any time look away?
“A. No.
“Q. Now, you were a half block or something of that sort when you first saw the truck coming out of the station?
“A. Yes.
“Q. Now, it continued to drive up on ■the street without stopping?
“A. Yes, sir.
“Q. When, did you first apply your brakes ?
“A. When I first saw it.
“Q. How much speed were you making then?
“A. About the same, not over 25 miles.
“Q. Did you try to stop the car then?
“A. I thought I would just slow up and go behind him at first and then he kept moving.
“Q. How slow were you going when you saw you couldn’t go behind him?
“A. I don’t know.
“Q. Were you getting to 10 or 15 miles.?
“A. Probably.
“Q. Can you approximate the distance you were away from the truck when it entered the pavement, when it went upon the pavement?
“A. No.
“Q. Could you say you were as much as a hundred feet away when it entered the pavement?
“A. I don’t know, I am no judge of distance.”

Grady Martin, the driver of defendant’s truck, questioned as to what he saw, says:

‘‘Q. Did you see the Hudson coming?
“A. Yes, sir.
“Q. When you first saw the Hudson where were you and how far away was the Hudson?
“A. Well, I saw it just before I came out of the yard. It was a block away.
l'Q. Could you tell how fast it was coming?
“A. Yes, sir.
“Q. Did you drive on the street?
“A. Yes, sir.
“Q. How much of the turn had. you made when the collision happened?
“A. Well, I was about a 50 degree angle or 60 or something like that. I wasn’t exactly straight.
“Q. You were turning north?
“A. Yes, sir.
“Q. How fast were you going?
“A. Well, I couldn’t say. I couldn’t have been making more than five miles an hour.”

He further testified that he could not tell whether Miss Willis was looking ahead or not; that he sounded his horn; and that she was about 75 feet from him when she turned to the left, and he judged that she was driving at the time about 30 miles an hour.

In another place he testified:

“Q. Did you stop before you came on the highway?
“A. Yes, sir.
“Q. Where did you stop?
“A. Right in the gate.
“Q. Was that when you saw Miss Willis coming?
“A. Yes, sir.
“Q. Why didn’t you wait until she passed?
‘‘A. Well, I had plenty of time to get on the street if she hadn’t been running as fast as she was.
“Q. You didn’t do it, did you?
“A. It didn’t seem like I did.
‘‘Q. If you had waited just a little bit sbe would have passed you, wouldn’t she?
“A. I suppose so.”

In another place:

“Q. Why didn’t you have time to, make the turn after you drove on the street?
“A. Well, for the simple reason she was speeding and running faster than I judged she was.
“Q. Had you sufficiently made the turn to permit her to go on driving to the right?
“A. Yes, sir.”

In another part of his testimony he estimated that Miss Willis was coming, when he first saw her, at 25 and 30 miles. But we cannot accept his estimate of her oncoming speed, as a safe guide, because it was raining at the time and the windshield of his truck was not equipped with a wiper, consequently his visibility was likely to .be not good, and furthermore it is almost impossible for a party driving an automobile to accurately judge the speed of an oncoming car without close and very careful observation for a period of time longer than a hurried look. In this instance the damage. sustained by plaintiff’s car which was being driven, and that sustained by the truck which was almost stationary at the moment of the impact, shows that plaintiff’s car was moving at a velocity which we can hardly estimate at less than 20 miles an hour. The speed of plaintiff’s- car at the time the truck came out into the street :ahead of it is left uncertain by the evidence. It is a matter for speculation.

. The ordinance of the town fixed the speed limit on Third street at not exceeding 20 miles an hour. With the uncertainty of the evidence on the subject, we conclude that the presumption must be in favor of the plaintiff, that the driver of his car was not violating the town law, and that his car was not being driven faster than 20 miles an hour at the time in question. As plaintiff’s car was not shown to have been driven faster than the town ordinance permitted, the driver of plaintiff’s car cannot be said to have been negligent in the matter of speed.

Defendant pleads that plaintiff had the last clear chance to avoid the accident.

This brings up the question: At what distance the driver of plaintiff’s car saw or should or could have seen the truck and have stopped, if necessary, to avoid striking it.

On this subject the evidence has left the matter uncertain. The diagram in the record shows Third street, Cavanaugh avenue, the private driveway out of which defendant’s' truck was driven and some other places, but the witnessed did not bring out and establish with reasonable certainty the place on the street, that is the distance plaintiff’s car was from the truck at the time the truck.first appeared on the street. There are some general statements and estimates on the subject from which we estimate in a very general way that plaintiff’s car was likely about 75 feet distant when defendant’s truck came out of the driveway into the street ahead of it. But the evidence does not enable, us to form a satisfactory conclusion as to the distance in question. We conclude -that the driver of plaintiff’s car was not negligent for not trying to stop sooner than she did. The brakes on plaintiff’s, car were not defective.

As the truck came out of the’ private driveway on to the street, he was required by the law of the town, as Well as that of the state, to stop at the edge of the west side of the street and wait there so that the traffic going south on the street might continue to pass on the right side, and should not have entered into the street and drawn itself across, practically blocking the street, making a left-hand turn, until he had first seen that there was no oncoming traffic either north or south, making the movement dangerous. The drivel of defendant’s truck was shown to have been at fault in this respect.

Act No. 296 of 1928,. sec. 21, provides that—

“The driver of a vehicle entering a public highway from a private road or drive shall yield the right-of-way to all vehicles approaching' on such public highway.”

The ordinance of .the town of Leesville contains a similar provision a» to all vehicles entering Third street. -

Defendant’s driver admits that he’ saw the .. Hudson; . which 'whs plaintiff’s car, about a block distant coming toward him at the time he entered the street and he should have waited where he was. at the time until it had passed before .entering on the street. Having seen the car, he was charged with the duty of stopping and waiting for it to pass, and he admits that he did not do it, but depended on getting across the street and to the right-hand side going north before the car could reach him. But his turn was so slow that it brought about the collision.

If the evidence had shown that the driver of plaintiff’s eár had seen the truck come out and start across the street in time to have stopped and avoided a collision, it would have been negligence not -to do it; but the evidence does not show that such was the case. In fact, the driver of plaintiff’s car was not called on to act until defendant’s failure to obey the law and the resulting danger reasonably appeared, because the driver of plaintiff’s car had the right to suppose that the driver of defendant’s truck would obey the law. In •the meantime and before the driver of plaintiff’s car could judge of what defendant’s driver was. going to do, plaintiff’s car' going forward at 20 miles an hour would cover a distance and go so close to the truck that a stop could not be accomplished. In an emergency thus created by defendant’s driver, plaintiff’s driver had the right to swerve from the right of the street to the left if there appeared reasonable prospect of avoiding a collision by so doing. The fact that the turn to the left failed to avert a collision did not relieve defendant’s driver from having been responsible for the collision, the sudden emergency having been produced by his fault.

The testimony of defendant’s, driver shows that he saw plaintiff’s car approaching before he left the driveway. He thought he could get across the street and turn to the left before plaintiff could reach the place, but plaintiff’s car was too close. He should not have taken the chance when visibility was impaired by the rain.

It is likely that the lower court knew the witnesses, and not only that, he likely knew locations and distances important in the determination of the case better than we are informed from the record concerning same. He decided in favor of the plaintiff, and we do not feel justified in holding that he was in error in doing so.

Defendant • contends that the amount should be reduced. Plaintiff’s car cost $1,585 new; it had been used about three years and had been driven about 38,000 miles. The plaintiff did not have his car repaired, but traded it, in the condition it was in, for a new car valued at $1,485, receiving in the trade a credit of $300 as the value of his old car.

Judgment for $578.75 and a credit for $300 makes plaintiff recover for his old car the sum of $878.75, which is more than half what it cost him when new and practically half the price of .the new one.

We find that plaintiff is entitled to recover as damages the expense it will be to repair his old car so as to make it as good as it was at the time of the collision, or as near as can be done. A mechanic testifies that it will cost $578.75 to do that, and the lower court rendered judgment in favor of the plaintiff for that amount.

• We think that the holding was correct. Judgment affirmed; defendant, appellant, to pay the cost in both courts.


author: CULPEPPER, J. PER CURIAM. Rehearing is therefore refused.

text:
    No. 3477
    Second Circuit (Second Division)
    CARTER ET AL. v. LOFTON
    (June 11, 1931. Opinion and Decree.)
    (July 16, 1931. Rehearing Refused.)
    W. H. Walmsley, of Coushatta, attorney for plaintiffs, appellees.
    Henry W. Bethard, Jr., of Coushatta, attorney for defendant, appellant..
   CULPEPPER, J.

Plaintiffs, Joel J. Carter and W. Peyton Carter, bring this suit to recover a balance alleged to be due by defendant, for goods sold and delivered to defendant in 1926, by Carter Brothers Company, a commercial partnership of Coushatta. They allege themselves to be, and it is admitted that, they are, the assignees of the partnership.

Defendant alleged that he had from time to time bought goods from the Carter Brothers Company but that he had. always promptly paid for whatever he had bought, and ’that he did not owe either the plaintiffs or the company. There was judgment for plaintiffs and defendant appeals.

On the trial it developed that the defendant arranged for a line of credit of $150, the goods to be delivered to. Hunter, who is now deceased, but to be charged to defendant. Later, the line was increased from time to time. The account sued on is headed “J. L Loftin for A. B. Hunter.” Mr. J. E. Holley testified that he was at the time interested in the partnership, and its bookkeeper, and that the account sued pn was correct; that “Mr. Loftin was the .man we sold the goods to * .* * and delivered them to Mr. Hunter,” and that they looked to Mr. Loftin for the payment of the account, and not Mr. Hunter. Mr. J. J. Carter testified, in substance, to the same effect. Asked if the agreement was, that defendant was to pay the account if Mr. Hunter did not, his reply was that “Mr. Hunter was not known in the proposition.”

Mr. Lawson Carter testified that defendant arranged for goods to the value of $150 to be delivered to Mr. Hunter, but to be charged directly to defendant, and that Hunter was not known in the transaction. Later this limit was increased at the request of the defendant.

Mr. F. L. Teer, assistant bookkeeper, testified that he wént to work after the original arrangements were made, but that When the original limit of $150 had been reached defendant came in -.and .gave instructions to continue to. deliver goods to Hunter to finish .the crop, and charge it to defendant’s account.

Defendant did not himself take the witness stand but contented himself with introducing three documents, one of them being a receipt to A. B. Hunter, signed by the witness Teer, for $39.20, dated Novemher 20, 1926, for which a corresponding credit is given on the account sued on. The second is a receipt dated October 28, 1926, for. $9.77, issued to defendant, also signed by Mr. Teer, “balance a/e to date.” The third is a, form letter dated December 3, 1926, signed by the original partnership, on a typewriter, but with Mr. Hunter’s name filled in in ink, also by Mr. Teer, and which reads as follows:

“We are closing our books for 1926, and will appreciate your settlement and oblige.”

The testimony is undisputed that the defendant did arrange for his tenant Hunter to have a line .of credit to be charged directly to the defendant. This was not a promise to pay the debt of a third person, but was a direct obligation incurred by the defendant; for which he is liable. Watson Bros. v. Jones, 125 La. 249, 51 So. 187.

And this agreement is not inconsistent with the receipts issued, for the account sued on was kept separately from the account charged to defendant for goods purchased for his own use. And the plaintiff would not, we think, be bound by the act of its assistant bookkeeper in writing a letter to Hunter in an effort to collect .the balance due on account which would have, enured to defendant’s benefit. Spears v. Turpin, 9 Rob. 294.

, The judgment appealed from is, there;fore,;-correct, - and it -is accordingly affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

Defendant has applied for a rehearing upon the ground, mainly, that the court, in discussing the receipt filed in evidence, used, the following language which is an assumption on the part of the court and not borne out by the evidence:

“And this agreement is not inconsistent with the receipt issued, for the account sued on was kept separately from the account charged to defendant for goods purchased for his own use.”

Upon a careful examination of the record, the court fails to find any evidence to establish that plaintiff had more than one account against defendant upon its books. The court was in error as to the above statement of fact in its opinion. However, considering the very strong case made out by plaintiff, in chief going to establish the debt sued upon, the amount of which being a great deal more than that called for by the receipt in question, and that the amount sued for not having been paid, we think such a receipt as relied upon by defendant is entirely inconsistent with the claim of payment. While the record does not disclose that defendant had two accounts with plaintiff, one for goods purchased for Mr. Hunter, and one for those purchased for his own use, it is possible for such to have been the case.

Be that as it may, plaintiff made out a very strong case in chief. Defendant did not even take the witness stand to deny plaintiff’s testimony, but relied upon the three documents filed in 'evidence, and we do not feel that these documents are sufficient, under these circumstances, to warrant the court in relying upon them to the extent of reversing the judgment of the lower court.

Rehearing is therefore refused.


author: WEBB, J.

text:
    No. 4054
    Second Circuit
    GILES ET AL. v. POST
    (July 14, 1931. Opinion and Decree.)
    Gilbert P. Bullís, of Vidalia, attorney for. plaintiffs, appellants.
    Snyder & Sevier, of Tallulah, and Young & Watson, of St. Joseph, attorneys for defendant, appellee.
   WEBB, J.

Plaintiffs, W. W. Giles and Mrs. Ethel Giles, husband and wife, brought this action to recover damages alleged to have been sustained by them as the result of a collision between an automobile owned by the husband, which was being driven by his wife, and a truck owned by defendant, John C. Post, being'driven by an employee of defendant; and plaintiffs appeal from a judgment rejecting their demands.

The accident occurred .in the daytime on a highway which runs approximately north and south, at a place where the road is straight, and the automobile, which was moving south, collided with the rear end of the truck which had been backed onto the roadway from the private roadway located on the east side of the highway; and ¡plaintiff alleged that the driver of the truck had moved it onto the roadway in such manner as to block the passage of the automobile and so near thereto that Mrs. Giles could not avoid the collision, either by passing around the truck or stopping the • automobile.

On trial the evidence adduced on behalf of plaintiffs tended to show that the truck had been backed over the center of the highway, blocking the passage of the automobile, and that the truck was moving backward in that position, when the collision occurred; while the evidence adduced on behalf of defendant tended to show that the driver of the truck in hacking it had kept the truck on the east side of the roadway, backing it a distance of about fifteen feet, where the truck was stopped in a position parallel with and on »the east side of the highway, from which position it had moved forward an approximate distánce of forty feet when the collision occurred.

The record shows that the witnesses called on behalf of defendant were in a much more advantageous position to determine the manner in which the truck was moved onto the roadway, and the position of the truck at the time of the collision; and we are of the opinion that the preponderance of the evidence shows that the truck was moved onto the highway in the manner and that the position of the truck at the time of the collision 'was as stated by the witnesses for the defendant, from which it is evident that there was at all times ample space for the automobile to have passed.

Appellants urge, however, that, Mrs. Giles acted in an emergency and should not be held for error of judgment, or in failing to see that there was ample space to pass the truck, or, as we gather, appellants contend that the truck suddenly appeared on the roadway so near to the automobile that Mrs. Giles could not stop the. automobile, and that she was warranted in swerving the automobile from its course on the west side of the roadway, in apprehension that the truck which was moving forward on the east or wrong side of the roadway, would be moved into the path of the automobile.

While, as stated, the theory of plaintiffs’ case was that the truck had suddenly been driven onto the roadway so near to the automobile that Mrs. Giles could not stop the automobile; and the contention of appellants’, as stated above, is in conflict with plaintiff’s statement relative to the cause of the collision, as well as the theory on which the case was tried; but passing that and conceding arguendo that the driver of the truck was negligent in moving the truck forward on the wrong sidé of’ the roadway, the evidence does not show that such negligence was the proximate cause of the injury.

The evidence established that Mrs. Giles had an unobstructed view of the roadway for a distance of several hundred feet, and that she could have stopped the automobile within a distance of one hundred feet; and that the automobile was at a distance of more than one hundred seventy-four feet from the truck when the latter entered the roadway. We are of the opinion that the facts do not show that the truck came into the highway in such proximity to the automobile, that the driver of the automobile, had she been maintaining a, lookout, could not have stopped the automobile before arriving at the place where the automobile entered the roadway; and although it is evident that Mrs. Giles was startled when she observed the truck on the roadway, considering that the speed of the automobile was much greater than the speed of the truck, which had moved an approximate distance of fifty-five feet after entering the highway before the collision occurred, it is evident from Mrs. Giles’ statement that she did not observe the truck until it was on the highway for an appreciable time, and that Mrs. Giles was not maintaining a lookout.

The testimony of the witnesses called by the respective parties was exceedingly conflicting, but. considering the cause from any point of view, there is ample evidence in the record to support the judgment rejecting plaintiffs’ demands, and the judgment is affirmed, at plaintiffs’ cost.


author: LeBLANC, J.

text:
    No. 815
    First Circuit
    MYERS v. THE NEWPORT CO.
    (June 30, 1931. Opinion and Decree.)
    C. V. Pattison and E. F. Gayle, of Lake Charles, and C. H. Love, of Oakdale, attorneys for plaintiff, appellant.
    Cline, Plauche & Girod, of Lake Charles, attorneys for defendant, appellee.
   LeBLANC, J.

Ira P. Myers was engaged in the business of blasting trees and stumps, using dynamite in pursuing his work. On January 28, 1930, while blasting on a tract of land from which he had been delivering stumps to the Newport Company, he was killed by a dynamite explosion. His widow instituted this proceeding in her own behalf, as well as for her two minor children, to recover compensation for his death, alleging that he was an employee of the defendant company. The defense is that Myers was not an employee, but an independent contractor, and therefore there was no compensation due. That appears to be the only issue presented.

From a judgment sustaining the defendant’s contention and dismissing her demand, the plaintiff has appealed.

Robert Douglas, wood superintendent for the defendant company, testifying as to the relations between his company and the decedent Myers,' says that the latter was simply selling them wood. He made his own arrangements for stumpage, and defendant bought the wood from him delivered at its plant at De Quincy, by the ton. Whilst the dynamite and .tools used by him came from their supplies, they were bought by him and the amounts charged for them were, deducted in the settlements made with him. He furnished his own labor, and they exercised no control whatever over him. He regulated his own hours of employment, and, as far as this witness remembers, had never been instructed as to how many loads- he would be allowed to haul per day.

H. L. Smith, superintendent in direct charge of the defendant company’s plant, testifies also that Myers’ agreement was only to deliver wood to them at the price of $3.50 per ton, and that they had no control whatsoever over his activities in producing the wood. They furnished him the dynamite and tools that he used, but at his- own request and expense. At the time he was killed, he was operating on what is referred to as the -Davis tract of land in section 25, Township 6, S., R. 11, with which his company had absolutely nothing to do. The company bought wood from quite a number of blasters like Myers, and, in some cases, by special arrangement they protected the landowners for the stumpage by paying them direct. That, however, was not so in the case of Myers with regard to the stumpage on this Davis tract.

In an effort to show that the defendant retained control over the work, counsel for plaintiff submitted testimony to show that in certain cases .the company directed the blasters by showing them the lines of the different properties on which they were to work, and at times hired blasters to get the stumps that were bought from the landowners themselves. Even if what the defendant did in those cases was to be considered as maintaining supervision and exercising control over the work, it could avail the plaintiff nothing as the positive testimony we find in the record is- to the effect that nothing of (.his kind was done in the course of operations under their agreement with the decedent Myers.

The determining factor which almost invariably distinguishes an independent contractor from an ordinary employee lies in the degree of supervision and control which the one for whom the work is being performed has. in relation to the manner and method in which it is done. The employment of help, the use of tools and supplies, and the method of payment are all elements which also enter into consideration in arriving at the amount of supervision or control that is retained. The generally accepted rule, not only in Louisiana, but in other jurisdictions as well, is to the effect that where the workman performs his service free of any direction or interference on the part of the principal, save as to result only, he is an independent contractor. It would seem besides, that in a case where the workman employs his own labor to help him, and furnishes his own tools and necessary supplies, his status as such is the more emphasized. This rule may be said to have been crystallized into law in Louisiana, by our own Workmen’s Compensation Statute, as will be noted from the following provision in paragraph 8 of section 3 of act 85 of 1926:

“The term ‘independent contractor’ shall be considered to mean, for the purpose of this act, any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his icoric only,, and not as to the means by which such result is accomplished.” (Italics ours.)

In the case of James v. Hillyer-Deutsch-Edwards, reported in 15 La. App. 71, 130 So. 257, we held that this provision in the act of 1926, which was an amendment to the original compensation Act No. 20 of 1914, did nothing more than to give legislative sanction to the existing law and jurisprudence as. to who were independent contractors.

Tested by this rule as thus formulated into law, it is clear that the decedent Myers, who, according to his own affidavit, made at the time he entered into an agreement with the defendant, was the owner of •the stumps he was going to sell, bought and paid for the tools, and dynamite he used, and performed his work in a manner to suit his own convenience, without direction or supervision of any sort by the defendant, and was paid for the stumps at a given price per ton as he delivered them at the mill, was an independent contractor, and not an employee of defendant.

Counsel for plaintiff presents the further issue that Myers, at the time he was killed, was performing manual labor, and, under the definition given to the term “independent contractor” hereinbefore quoted from Act No. 85 of 1926, he must be deemed to be an employee as that definition, it is contended, specifically excludes from the term, all those who do manual work.

, Counsel assumes it as a fact that Myers did perform manual labor in his operations as a blaster of stumps. It was not so proven on the trial of the case, but we are willing in order to consider the issue, to let it stand as a fact, and still we are unable to agree with counsel that the Legislature intended to prescribe such a condition in order that a person may come within the meaning andi definition of the term “independent contractor.” As we said in the recent case of Cobb v. Long Bell Lumber Co., 16 La. App. 297, 134 So. 310, 312, .'If what counsel is contending for be made an unqualified or absolute test, independent contractors would rarely if ever come up for consideration in suits, of this character.” We venture to assert .that it is-more frequent than not that an independent contractor is a person who himself performs manual labor of some kind in the work he is engaged in. A brick mason who engages to do the brick work on a building as an independent contractor almost invariably works himself, even though he hires help. So does the painter, the tinsmith, the plumber, and others of that class who render service, “for a specified recompense * * * either as a unit or a whole.”

In the way in which counsel would have us apply the meaning of the term, a carpenter who contracts to erect a house at a stipulated price, who makes the plan, furnishes all material, and has entire control over the work, in every respect, except as to result, would not be an independent contractor, simply because, in the course of his work, he personally performed most of the manual labor involved in its construction. Such we do not believe was. the legislative intention in defining the words, “independent contractor,” and we are not ready to so hold.

The judgment of the lower court which rejected plaintiff’s suit is correct, and it is now affirmed.


author: DREW, J.

text:
    No. 3983
    Second Circuit
    KRAUSE-FOSTER CO., INC., v. MOSS
    (July 14, 1931. Opinion and Decree.)

      (No Syllabus)

    B. F. Thompson, Jr., of Alexandria, attorney for plaintiff, appellee.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellant.
   DREW, J.

Counsel for appellant appeared in open court and stated to the court that since perfecting the appeal in this case, he has been convinced that the judgment of the lower court is correct.

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