author: MOUTON, J.

text:
    No. 689
    First Circuit
    MUTTI v. McCALL
    (October 8, 1930. Opinion and Decree.)

      Harvey E. Ellis, of Covington and George Piazza, of New Orleans, attorneys for plaintiff, appellee.
    E. V. Parham and Edw. Rightor, of New Orleans, and Morgan & Simmons of Covington, attorneys for defendant, appellant.
   MOUTON, J.

At about 9 o’clock p. m. April 19, 1929, a collision occurred between a Dodge auto and a Chrysler on a concrete bridge across Pontchatalawa creek midway between Covington and Mandeville.

Joseph Luizza was driving the Dodge southward from Covington to Mandeville, and the defendant, McCall, was driving the Chrysler northward towards Covington, and therefore in the opposite direction.

Plaintiff herein, hereafter called Mrs. Alexandre Mutti, was sitting on the front seat of the Dodge with her son-in-law, Joseph Luizza, the driver, and on the rear seat were her two daughters, Misses Anna and Judith, with David Sessler, an attorney from New Orleans, sitting at their extreme left on the east side, the way they were traveling.

Staly and Wushaupt were sitting on the front seat of the Chrysler tcar which Mr. McCall, defendant, was driving. Mr. Dinkenspiel was sitting on the left of the rear seat, with a lady in the center, sitting between Mr. Dinkenspiel and Mr. Kaiser. Mr. Jeff Mathews, another occupant of the car, was on the floor of the car. He moved from that uncomfortable position and the four managed to occupy the rear seat.

The collision between the two cars took place at about fifteen or twenty feet from the north end of the Pontchatalawa bridge, that is on the Covington side. Mrs. Alexandre Mutti was injured as a result of the accident, so were her two daughters, her son-in-law, Mr. Luizza, and Mr. Sessler. They each brought suit in damages against McCall, who is also sued by Mr. Alexandre Mutti for damages to his Dodge car in which his wife, children, son-in-law, and Mr. Sessler were riding at the time. These suits were consolidated, and by agreement judgment was entered separately in each case.

Messieurs Kaiser and' Wushaupt, occupants of the McCall ear or Chrysler at the time, having also been injured in the collision, are claiming damages against Mr Joseph Luizza for the injuries they received.

Mrs. Alex. Mutti, her husband, their daughters, Messieurs Sessler and Luizza recovered judgments on their separate demands, but the claims of Kaiser and Wushaupt were rejected.

At the time of the accident Mrs. Alexandre Mutti was running a hotel at Abita Springs from where Mrs. Mutti, her daughters, Messieurs Luizza and Sessler left that evening for an outing to Covington, intending to go by that way to Mandeville, and back to their home. They were out, they say, for a little fresh air, and there is nothing to indicate they had gone pleasure bent or on a joy ride. The presence of Mrs. Mutti, aged 63, gives assurance that such was far from their purpose. The driver, Mr. Luizza, and the other occupants of the Dodge are positive that during that little trip to Covington and then southward that Mr. Luizza drove at the speed between twenty-five to thirty miles an hour up to the approaches of the bridge when he reduced his speed considerably. Their evidence is that on entering the bridge he was traveling from six to eight miles an hour, and that when the impact occurred his car was barely moving. There is no direct evidence to contradict the testimony of these witnesses on this issue of fact, and no physical facts, or any circumstance or circumstances reflected in this record from which it could be inferred that Mr. Luizza was driving, when he .was nearing the bridge, prior thereto, or after his car entered it, at a greater speed than was testified to by himself and the other occupants of his car to which we have hereinabove referred.

The only evidence militating against the statement of these witnesses on this subject is the testimony of Mr. McCall and some of the other occupants of his car. He says, and so testifies the two who sat with him on the front seat, and two on the rear seat, that the Luizza or Dodge car was coming towards the bridge, when the collision took place, at a rapid or excessive rate of speed which they figured to have been about twenty or twenty-five miles an hour. It is always difficult, even in day time, to make an approximately accurate estimate of the speed at which an auto is traveling. Obviously, at night, the difficulties of making such an estimate are increased even to the most careful observer. An estimate made by the occupants of an auto towards which the other car is coming at night, the situation here, has no probative value and usually amounts to a mere guess, as we took occasion to say in Campbell v. Haas, 4 La. App. 435. We find no reason to depart from the conclusion reached by us in that case on this question, and must apply it to the present contest. Applying it, we must hold that the estimate of speed so given to the Dodge car by Mr. McCall and his witnesses cannot be taken as having the effect of effectually contradicting the testimony of Mr. Luizza and the occupants of his car as to the speed he was going prior to and at the time he entered the bridge and when the collision occurred. It must therefore be accepted as an established fact that when the impact occurred the Dodge car was going at about six or eight miles an hour or slower.

Mr. Luizza and the occupants of his car are all certain that he drove on the bridge at the extreme right of the road, the direction he was going. It is shown that he slackened his speed, and there is no reason to believe otherwise because he saw the Chrysler coming towards him from the other end of the bridge. He was familiar with the bridge, which is a little over sixteen feet wide, and it would have been extremely imprudent, if not rash on his part, if he had not, under these circumstances, entered the bridge on the right side as much as he could.

In referring to this much contested point in the case, the district judge said:

“The Court is compelled to rely for its decision on the physical facts as proven and the disinterested witnesses who viewed the scene of the accident before there was any change made in the position of the two automobiles. Mr. Dunn, a witness who lives only a few hundred feet from the bridge was the first one on the scene of the accident, and he describes in detail the relative position of the two cars. According to his testimony the Dodge Sedan was against the concrete curbing on the right side of the bridge, while the rear end of the Dodge was some two feet from the curbing. The Chrysler automooile was interlocked with the Dodge, one wheel being raised upon the Dodge automobile, having struck it an an angle about midway the hood, showing it was not a head-on collision. This is borne out by the testimony of the witness, Caserta, and the witness, Bullock, who went with the wrecker to remove the automobiles, the Dodge had not been moved when they reached the scene, they stating that the brakes were locked and that it could not be moved until it was lifted up and the brakes put on.”

The district judge correctly found that it had not been a head-on collision, as it was clearly snown that the Dodge had been struck by the Chrysler on the left side near the hood. It was shown that the curbing on the right-hand side of the bridge going to Mandeville, the direction the Dodge was traveling, had been scraped for a distance of about twenty feet, and that this scraping was fresh, as was testified to by several witnesses.

The front right tire of the Dodge was also scraped off, which, with the scraping from the curbing of the bridge, indicated very clearly that Luizza had, as he testified, driven his car on the bridge to his extreme right side, where it was found with its brakes locked, and in a state of immobility, immediately after the accident. The Dodge was struck at an angle on the left side, and was practically “smashed up” as one of the witnesses expresses it. The blow was so heavy that the support holding up the engine was broken. It was stated by several witnesses, mechanics and others, that the blow must have been extremely violent, else no such damage would have resulted.

This brings us to the consideration of the speed at which the Chrysler was moving.

Mr. McCall, driver of the Chrysler, frankly states that at the entrance of the bridge in question he was driving approximately between thirty and thirty-five miles an hour; that he “slowed down slightly as he entered the bridge,” estimating that he was then going at thirty miles an hour. Although he had seen the Dodge coming towards the bridge, as the road was straight and unobstructed, he however entered that bridge, only a little over sixteen feet wide, at that rate of speed. He says, after entering the bridge while gradually applying his brakes, he was traveling possibly over twenty miles an hour. He says that he entered the bridge on his right-hand side and continued along the curbing on that side until the impact between the two cars. He says, as was also testified to by some of the occupants of his car, that the Dodge was coming on the wrong side of the road, and that Luizza, the driver, as he neared the bridge, turned to his right and passed across the path of the Chrysler, thus causing the collision.

Mr. Sthele who was sitting on the front seat of the Chrysler next to Mr. McCall, says that Mr. Luizza' was driving the Dodge on his right side of the road, the proper side, until he got to the bridge, and that he then got in a diagonal position. He testifies that Luizza was going faster than we were, swung to his left side of the road, and 'was swinging back to his right when the accident occurred. It is shown that there is but a slight incline in that road near the approaches of the bridge, and only about a foot fall from its west to east side, and we cannot conceive of any cause which could have impelled Mr. Luizza to take such a zigzag course when nearing that bridge to make the crossing over the creek.

The variance in the testimony between that of Mr. McCall and Mr. Sthele simply shows that it was difficult for them to say, from the position in which they were, as to which side of the road the Dodge was advancing towards them.

Mr. Wushaupt, plaintiff against Mr. Luizza, who was also sitting on the front seat of the Chrysler, says that the Dodge was coming on the wrong side of the road. It is true that he agrees with Mr. McCall in that respect, but the fact still remains that to Mr. Sthele the Dodge was coming on the proper side of the road. Two other occupants of the Chrysler, who were on the rear seat with a very tall and stout lady and another member of the party, testified that the Dodge car was coming on the wrong side of the road. Cramped up on this back seat as these two witnesses were, with three men seated in front of them, it is difficult to believe that they could have seen with any degree of certainty on which side of that road the Dodge was moving. In our opinion their testimony has no corroborative strength.

The testimony of Mr. Luizza and of the other occupants of his car convinces us as, no doubt, it convinced the trial judge, that the Dodge approached and got on the bridge at a slow rate of speed, and on its right side, near the curbing, when it was run into by the McCall auto which was going at an excessive rate of speed, considering the situation existing there at that time.

In Corpus Juris, vol. 45, pp. 689-694, we find the following in reference to the question of negligence, viz.:

“There is no such thing as absolute negligence, but negligence is always a relative or comparative term, as is also due, reasonable or ordinary care. Accordingly, the circumstances of the particular case are always to be taken into consideration in determining whether the person sought to be charged with liability for an injury to another or the property of another has exercised the care which the law requires of him or has been guilty of negligence. The amount or degree of diligence or caution which is necessary to constitute due, reasonable, or ordinary care changes with changing conditions, and varies according to the exigencies which require vigilance and attention, so that the same conduct may, under one set of circumstances or in particular surroundings, constitute sufficient care, and under other circumstances or in other surroundings, be negligent or even amount to gross negligence or wantonness. Indeed, so great is the effect of circumstances that the same conduct, under different circumstances or in different situations, may range from the highest degree of care to gross negligence.”

Our courts have frequently recognized the rule enunciated in the foregoing excerpt from Corpus Juris. For instance, where the driver of an auto approaches a street crossing where people are constantly crossing, the court in Duffy v. Hickey, 151 La. 274, 91 So. 733, in reviewing other cases, said that:

“It was his duty * * * to have the automobile under full control, so that it could be stopped quickly in event of emergency.”

'■ In a much more recent case, Woodley & Collins v. Schusters’ Produce Company, 170 La. 527, 128 So. 469, March 31, 1930, in a case where the driver of an auto was blinded by the headlights of a car approaching from the opposite direction, the court said it was his duty to reduce his speed so as to be ready to stop instantly.

Cases of this character, the court remarked, and we think wisely, depend so much on circumstances “that it is not easy nor safe to lay down a hard and fast rule on the subject.” The court also remarked appropriately “that a speed which might be reasonable under ordinary circumstances may be excessive and improper,” referring in that statement to the circumstances which appeared in that case.

The reference we have made to these decisions of the Supreme Court is not intended to convey the idea that the facts therein shown were similar to those presented in the instant ease, but as being illustrative of the rule which recognizes that negligence is a relative or comparative term, and must be determined according to the particular facts and circumstances of each case.

In the instant case, no doubt, Mr. McCall had the right to travel on the highway at a speed of forty-five miles an hour under our statutory regulations, but when his car entered that bridge, only sixteen feet and two inches wide, the Dodge car being then about entering the other end of the bridge only sixty feet in length, he should have slackened his speed to a slower rate than thirty miles an hour. After entering it, he says, he was possibly traveling over twenty miles an hour. One ear was five and one-half feet wide and the other five feet and nine inches wide, which left a clearance of less than five feet between tHem. Mr. McCall could have foreseen at once on entering the bridge that he could be blinded by the headlights of the advancing car, then at or near the other end of the bridge, and in such a narrow passage ahead, of him the exigencies required that he should have reduced his speed to a slower rate, even accepting his own estimate of the speed at which he says he was moving.

The evidence shows that Mr. McCall and some of the occupants of his car had been attending a convention at Abita Springs to which they were delegates.

Mr. Sthele, who was on the front seat with Mr. McCall, says the day’s business had been concluded, and that they were pleasure bent. Prom our reading of the record we have no hesitancy in believing that this statement of Mr. Sthele was not exaggerated. They were simply having a good time, and, so bent, Mr. McCall was driving too fast and drove at an excessive rate into the Dodge car, then going at a slow rate of speed, and in which the Mutti family had gone out for the pleasures of an evening drive. Had he been driving at the rate Mr. Luizza was moving or ■ even faster, but within a reasonable limit, under the circumstances, there would have been no collision. He was therefore at fault and was properly held liable in damages to the plaintiffs in these cases, and consequently the suits of Messieurs Kaiser and "Wushaupt against Mr. Luizza were correctly dismissed.

AMOUNT OP DAMAGES

The following refers to the injuries which Mrs. Alexandre Mutti received, and the sufferings she must have undergone as a result of the collision.

Dr. Buquor, the first physician who gave medical attention after the accident, found her soaked in blood, likewise was the auto in which she was carried to Covington. Her scalp was cut from temple to temple and when her hair was lifted, the scalp came with it showing a naked skull. Branches of the temporal artery had been severed, spurting blood .with the pulsations of the heart. Stitches were necessary to close the wounds, and had to be made without the aid of anesthetics on account of the weakened condition of Mrs. Mutti from which she must necessarily have suffered considerably, if not intense pain. She also had a deep cut on the right side of her face, about one-quarter inch in depth, and six inches long. These cuts left scars, which, from all indications, will be permanent. She was taken to Hotel Dieu for attention. The morning after her arrival she was placed on the operating table, her wounds sutured without the use of anesthetic, because of her condition the physicians fearing possibility of death if it had been administered. She was approximately 23 days at Hotel Dieu and was still suffering with nervousness when the case was tried, several months after the accident.

The court allowed her $3,000 damages, but gave her judgment for an additional sum of $1,009.40 for doctors’ bills and 'medicine, the latter amount being in error as it was recoverable by her husband, Mr. Alexandre Mutti, the head of the community.

The amount of damages, we do not find, is in the least excessive, and will not be increased or decreased. The allowance of $1,009.40 above mentioned really $885, with explanation hereinafter made, will be deducted from the judgment of Mrs. Mutti,' and given to her husband.

Miss Anna Mutti was severely injured. She had seven contusions and bruises all over her body and on the right side of her chest; her right hip, she testifies, was “bruised black as my dress from my hip to my ankle,” and from which she suffered during six to eight weeks. Her upper arm and shoulder were also bniised. She suffered a broken bone in the kneecap and a fracture of one of the bones in her right leg, walked with a cane several months after the accident, her fractured leg being still sensitive at the time of the trial. She is naturally of a nervous tempera ment, her nervousness having increased from the effect of her injuries. The district judge allowed her $1,677.45, which will be reduced to $1,200, and, as thus amended the judgment will be affirmed.

The injuries to Miss Judith Mutti, Mr. Joseph Luizza, and Mr. David Sessler were not so severe.

The judgment to Miss Judith Mutti will be reduced from $400 to $300; Joseph Luizza from $350 to $250; and David Sessler from $265' to $200; and as thus amended, affirmed.

In a supplemental petition Mr. Alexandre Mutti claimed $980 for doctors’ bills and medicine for his wife. Counsel for defendant claims that $95 is an item incurred by Mrs. Bertha Mutti Luizza in taking her mother to New Orleans and attending to her while there from April 20 to May 13, 1929. Nurses and medical expenses are fully included under the other items for the necessary attention to Mrs. Mutti, and that item will therefore be deducted from the $980, leaving a balance of $885, which will be added to the amount for damage to the Dodge sedan for which the court allowed Mr. Alexandre Mutti $1,252.

This Tatter amount will be reduced to $1,000.

In the cases of William F. Wushaupt and Herbert W. Kaiser v. Joseph Luizza et al., the judgments rejecting their respective demands will be affirmed, and ,a proper decree, for the reasons hereinabove assigned, will be entered in each case as was done below.

It is therefore ordered, adjudged, and decreed that in this case of Mrs. Victoria Grisoli Mutti v. G. McCall, that plaintiff have judgment against defendant in damages in the sum of $3,000, with legal interest from judicial demand as decreed below; that the judgment be amended by striking out the item' therein recognized for doctors’ bills and for medicine which will be transferred to the claim of plaintiff’s husband; and, as thus amended, the judgment appealed from herein be, and is hereby, affirmed, with cost.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    No. 685
    First Circuit
    MUTTI v. McCALL
    (October 8, 1930. Opinion and Decree.)
    Harvey E. Ellis, of Covington, and George Piazza, of New Orleans, attorneys for plaintiff, appellee.
    E. V. Parham and Edw. Rightor, of New Orleans, and Morgan & Simmons, of Covington, attorneys for defendant, appellant.
   PER CURIAM.

In this case the judgment herein rendered for $1,252 is reduced to the sum of $1,000, and is is further ordered and decreed that plaintiff have judgment for $885 against defendant for the reasons assigned in the opinion rendered in the case of Mrs. Victoria Grisoli Mutti v. McCall, 14 La. App. 504,130 So. 229, making a total of $1,885; and, as thus amended, the judgment be affirmed, defendant to pay all costs.


text:
    No. 686
    First Circuit
    MUTTI v. McCALL
    (October 8, 1930. Opinion and Decree.)
    Harvey E. Ellis, of Covington, and George Piazza, of New Orleans, attorneys for plaintiff, appellee.
    E. V. Parham - and Edw. Rightor, of New Orleans, and Morgan & Simmons, of Covington, attorneys for defendant, appellant.
   PER CURIAM.

In this case the judgment appealed from is reduced from $1,-677.45 to the sum of $1,200, and, as thus amended, it is affirmed; appellee to pay the cost of appeal.


text:
    No. 687
    First Circuit
    LUIZZA v. McCALL
    (October 8, 1930. Opinion and Decree.)
    Harvey. E. Ellis, of Covington, and George Piazza, of New Orleans, attorneys for plaintiff, appellee.
    E. Y. Parham and Edw. Rightor, of New Orleans, and Morgan & Simmons, of Covington, attorneys for defendant, appellant.
   PER CURIAM.

In this case the judgment appealed from is reduced from ?350 to the sum of $250; and, as thus amended, it is affirmed; appellee to pay cost of' appeal.


text:
    No. 688
    First Circuit
    MUTTI v. McCALL
    (October 8, 1930. Opinion and Decree.)
    Harvey E. Ellis, of Covington, and George Piazza, of New Orleans, attorneys for plaintiff, appellee.
    E. V. Parham and Edw. Rightor, of New Orleans, and Morgan & Simmons of Covington, ■ attorneys for defendant, appellant.
   PER CURIAM.

In this case the judgment appealed from is reduced from $400 to the sum of $300; and, as thus amended, it is affirmed, with cost of appeal on appellee.


text:
    No. 684
    First Circuit
    SESSLER v. McCALL
    (October 8, 1930. Opinion and Decree.)
    Harvey E. Ellis, of Covington, and George Piazza, of New Orleans, attorneys for plaintiff, appellee.
    E. Y. Parham and Edw. Rightor, of New Orleans, and Morgan & Simmons of Covington, attorneys for defendant, appellant.
   PER CURIAM.

In this case the judgment appealed from is reduced from $265 to the sum of $200; and, as thus amended, it is affirmed, with cost of appeal on appellee.


text:
    No. 690
    First Circuit
    KAISER v. LUIZZA ET AL.
    (October 8, 1930. Opinion and Decree.)
    Morgan & Simmons, of Covington, and E. V. Parham and Edw. Rightor, of New Orleans, attorneys for plaintiff, appellant.
    Harvey E. Ellis, of Covington, and Gordon Boswell, of New Orleans, attorneys for defendant, appellee.
   PER CURIAM.

In this case the judgment rejecting plaintiff’s demand is affirmed with cost.


text:
    No. 691
    First Circuit
    WEISHAUPT v. LUIZZA ET AL.
    (October 8, 1930. Opinion and Decree.)
    Morgan & Simmons, of Covington, and E. V. Parham and Edw. Rightor, of New Orleans, attorneys for plaintiff, appellant.
    Harvey E. Ellis, of Covington, and Gordon Boswell, of New Orleans, attorneys for defendant, appellee.
   PER CURIAM.

In this case the judgment rejecting plaintiff’s demand is affirmed with cost.


author: REYNOLDS, J.

text:
    No. 3622
    Second Circuit
    FLETCHER v. TEXAS CO. ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)

      Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Spearing & Mabry, of New Orleans, and Pugh, Grimmet & Boatner; J. N. Marcantel; Wilkinson, Lewis & Wilkinson, and Roberts & Naff, of Shreveport, attorneys for defendants, appellants.
   REYNOLDS, J.

Homer U. Fletcher sued

the Texas Company and S. B. Goodman, seeking judgment against them in solido for $20 a week for 362 weeks under the Workmen’s Compensation Act, Act No. 20 of 1914, as amended.

He alleged “that on or about February 6, 1928, while he was in the employ of and working for the said Texas Company and the said S. B. Goodman in the position and capacity of derrick man or working derricks at a daily rate of pay of $5.50,” he fell a distance of 30 feet to the ground from an oil well derrick on which he was at work, and sustained certain described injuries, and was thereby permanently totally disabled to do any work of a reasonable character.

He further alleged that he had been paid compensation up to October 29, 1928.

And he .prayed for judgment against Goodman and the Texas Company in so-lido for $20 a week for 362 weeks, the first payment to be decreed due as of October 29, 1928, with legal interest on each installment from its maturity until paid.

Goodman filed an exception of no cause of action, and it was tried and overruled.

Each of the defendants filed a separate answer.

The Texas Company denied that Fletcher was in its employ or that it had paid him any compensation, and denied that Goodman was in its employ or was its agent, and alleged that its relations with him were only those named in a contract between him and it dated January 5, 1928.

And it alleged, on information and belief, that Fletcher was in the employ of Goodman and that the compensation alleged to have been received by him was paid him by Goodman’s indemnitor, Aetna Life Insurance Company.

Goodman’s answer was, in effect, a general denial.

On these issues the case was tried, and judgment was rendered and signed on May 15, 1929, in favor of the plaintiff and against both defendants in solido for $20 a week during his disability, not exceeding 362 weeks, the first payment being decreed due as of October 29, 1928, with legal interest on each installment from its maturity until paid, and fixing the fees of the four physicians whq testified as experts on behalf of plaintiff at $20 each, and taxing their fees as costs of suit.

From this judgment both defendants appealed.

OPINION

EXCEPTION OF NO CAUSE OF ACTION

The exception was based upon the theory that the allegations of the petition show that Goodman was merely an agent of the Texas Company, and therefore not individually liable to plaintiff, and paragraph sixth of the (petition is referred to as supporting the contention. This paragraph reads as follows:

“That The Texas Company as owner of the mineral rights and land and the oil, gas and other minerals in and under the said land, had undertaken to have said well drilled as part of and in pursuance of its business and occupation of extracting oil and gas from the ground, and refining, selling and dealing in oil and gas generally; that the said Goodman had contracted with the said The Texas Company to do the actual drilling of the said well by the foot at a certain price, but the said The Texas Company retained and had a supervision over the manner and way said drilling was being done, and had authority to stop or speed up the said drilling under the nature of the said contract under which said work was being done; that the labor being used or men working on said well, or many of them, were being paid directly by the said The Texas Company.”

And Goodman contended that the allegation, in the second paragraph of the petition, that plaintiff was in the employ of both himself and the Texas Company, must be deemed qualified by the allegation of the sixth paragraph, that Goodman was engaged in drilling a well' for the Texas Company under a contract, and that the petition does not show a cause of action, against him either individually or as an independent contractor.

The exception was not adverted to in this court, and we therefore presume it is abandoned. However, we think the petition, taken as a whole, and given the liberal construction required by the Workmen’s Compensation Act, states a cause of action against Goodman no less than against the Texas Company.

ON THE MERITS

The Texas Company is engaged in the business of drilling wells for oil or gas and extracting these substances from the subsurface and refining the oil and marketing the gas and products of the oil, and, in this connection, erects derricks, lays pipe, and so on.

Goodman is engaged in the business of drilling wells for hire.

On January 5, 1928, Goodman and the Texas Company entered into a contract in writing whereby the former agreed to drill for the latter a certain well seeking gas or petroleum, and plaintiff, at the time he was injured, was in the employ of Goodman helping to do this work.

As to his employment, plaintiff testified:

“Q. For whom were you working and how were you working?
“A. Working as derrick-man on a drilling rig for S. B. Goodman, drilling contractor for The Texas Company, on The Texas Company’s lease.”

He further testified that he was up on a derrick, about 30 feet from the ground, setting casing, and that something knocked the scaffold board on which he was standing from under him, and be fell to the floor. He was rendered unconscious by the fall. As to the nature of his injuries, he testified:

“Q. What side of your — what part of your head was hurt the worst? And face?
“A. Well, the right side of it there.
“Q. What were the injuries on that side?
“A. Well, as well as I recollect about the injuries, the whole side of my head was pretty well bruised up, and a jaw tooth shattered off. Knocked one jaw tooth — when I come to recollect about it or when I knowed anything in the world, that tooth was out^and another one half knocked off, and then my other teeth were shattered pretty well.
“Q. On the right side?
“A. Yes, sir; as well as trouble in the ear. It was bleeding out of the ear. They told me about that.
“Q. Any bleeding out of your nose and mouth?
“A. Yes, sir.”

He further testified:

“I found that I haven’t got any use hardly at all of the left foot as well as the leg. Left hand and right foot and leg. The left hand was injured, and I haven’t got no grip in it, as well as the arm, up to the shoulder; aching sensation down on the back of the shoulder, and tight feeling in the chest between the collar bone and head; and when I wake up at night, if I try to sleep on the left side, it is dead, it is numb from about the heart clear on around, and I have to work that arm around. After a while it will come to ■ itself. It is dead, feels like it is asleep, and I can’t sleep on that side at all, and I have some steady pains around there. If I go around and try to work any, which I have tried a little, just little chores on the farm, if I get to doing a little work, I have the sensation in the head, kind of blinding, and then it starts kind of a rambling pain in the breast, and I have to stop work and lay off.
“Q. Can you do any work at all?
“A. No, sir; I haven’t been able, so far.
I have a weak back as well as left hip.
The pain in the hip, I have it now just from walking around town a little before court today. I have that every time I walk, from the left hip.
“Q. What is the disability you say you have in the right leg or foot?
“A. I just haven’t got no use of it. It'just gives out on me and feels like I haven’t got no leg there most of the time when I walk on it too much. If I apply the brace, it swells up around the ankle, and I can’t go without the brace.”

Dr. S. L. Williams testified that plaintiff came to him on February 7, 1928, for treatment. That he found he had “sustained injuries to his face, head, neck, chest, and the left wrist, arm and right leg at the ankle joint, fracturing the small bone about an inch from the ankle and the internal malleolus on the right side in the right joint. The condition was right serious. The whole leg was bruised and swollen so much so that the dressing that Doctor Bell had placed on it were so open and exposed it left it open for inspection from day to day and for that reason we could not put him in a cast until about the sixteenth.”

“Q. It was about eight days before you put him in a cast?
“A. Yes. And, of course, he had other injuries, internal injuries to the extent of having great pain disturbances and his stomach was very muchly upset for about three . days. He vomited and expectorated blood. The records show that. It was not necessarily a deep cavity but he would just spit up blood. The lesions were so very excessive that he was bordering o.n traumatic pneumonia. We had . a little trouble trying to get him nourished through the stomach that was badly irritated and inflamed.”

Dr. Thomas Ragan testified that he examined plaintiff during the week of the trial, and stated:

“I took Ms Mstory of having had a fall and then made the usual physical examination. I did not find anything now specially wrong with his heart or lungs. I think his kidneys were all right. The things he is complaining of specially were his left arm and right leg. The hand had ¡been broken, and 'we can feel the callus where the bones were united, and you could also feel where the bone in the leg was broken. That left arm was apparently so weak it had very little grip in it and very little force in it any way. There were no physical signs to indicate just why it was ■so but it was there and it was very evident that he was not putting on but that there was an actual weakness in that area. The right leg below the knee was a little smaller than the other. He wears a brace. I had him remove the brace and tested out the .sensation. He has very little use of that foot and leg and but for the' brace at the present time he could .not -walk hardly at all. The leg bobbles and in this leg the lack of sensation is very. pronounced. It has practically no sensation ■from the knee down. The sensation is practically gone. Yo'u can prick it or stick it or tickle it, do anything you wish to it, apply hot or cold to it, and he has no sensation below the knee; but by applying the electric battery the muscles can be moved and it can be excited in a normal way, but their response is rather slower than normal, you might say.
“Q. Did you try the battery to. the injured arm?
“A. I did not try that- sensory test to his arm but to his foot I did. He has flat foot. Both feet are flat. I don’t know when that occurred, but they are extremely flat. In other words, the arches are all down and that condition is evidently painful to him, showing that that — it has been long enough for the bones to adjust themselves but the ligaments are very loose and the ankle is almost a flip-flop on the right side. I think that is partly due to the injury that he had and perhaps a good part of it is due to disuse, the support being given now by the brace rather than the muscles and ligaments; and then there is absolute lack of sensation in the skin.”

Dr. E. L. Sanderson and Dr. G. H. Cassity testified that they'had examined plaintiff shortly before the trial and detailed the result of their examination and their testimony as to what they found plaintiff’s physical condition to be corroborates Dr. Ragan’s testimony as to what he found it ■to be.

Dr. Guy A. Caldwell made an examination of plaintiff on July 16, 1928, and concludes his report, which was introduced in evidence, with the statement:

“Patient’s present condition is one of total disability for heavy duty. I believe it is impossible at the present time to judge what may be his permanent disability or whether there will be any. He needs further treatment and observation.”

-And in a letter accompanying the report, also introduced in evidence,- -he gives it as his opinion that—

“It is probable that he (plaintiff), ruptured the external lateral ligament and a portion of the capsule of the joint on that side and they have never firmly healed although it would- • seem that he was in plaster long enough to. permit this. -It is possible that there is a loose body in the joint of a cartilaginous character which does not show in the picture.”

The testimony of plaintiff and his testifying physicians as a whole establish that at the time of the trial plaintiff was totally incapacitated to do work of ‘any reasonable character.

Dr. D. L. Kerlin, called by defendant, testified that he had. examined the plaintiff from a neurological standpoint and that—

“Prom a nervous standpoint I did not find anything .in the man’s condition that would keep him from returning to work.”

Dr. A.- P. Crain, also called by defendant, testified:

“I examined his (plaintiff’s) right ankle and his left hand and wrist. The right an-We shows a measurement of nine and one half inches. Left, eight and one half inches. This can be accounted for by bony growth and non-use to a great extent. There is a normal range of motion in the affected ankle, although he does complain of some pain. The reflexes and sensations and range of motion are about the same in both ankles. The left hand is one half inch larger than the right. Normal range of motion. Does not complain of any pain on manipulation. On examining his chest, I can find no evidence of injury in the chest. Heart slightly irregular, but I do not attribute this to injury. As to his disability, I can find none now, unless it is the pain he complains of. Of course I cannot tell how much he really has.”

Dr. S. C.. Barrow, also called on behalf of defendant, testified that he is a.'radiologist and had made a radiological examination of plaintiff, and that an x-ray of the upper two-thirds of the right leg of plaintiff, including the knee joint, showed negative for bony disease or injury.

The testimony of the experts called by defendant to testify as to plaintiff’s condition does not, we think, conflict with the testimony of the experts called by plaintiff, except as to the condition of plaintiff at the time of the trial, and our opinion is that at the time of the trial he was totally disabled to do work of any reasonable character.

Plaintiff asks that the fees allowed the experts called by him be increased from $20 to some larger amount not named by him. The Workmen’s Compensation Act leaves to the discretion of the court the amount of fees to be allowed experts called to testify as witnesses in eases brought under that act, and we see no good reason for interfering with the discretion exercised by the trial court in the instant case.

The Texas Company, besides asking us to reverse the judgment and dismiss plaintiff’s suit on the merits, as to it, also requests us to annul the judgment, as to it, as void ab initio, for the alleged reason that the trial court orally rendered judgment rejecting plaintiff’s demands as to it, and later, without having' set aside its judgment orally rendered or granting a new trial, rendered, read, signed, and ordered filed in open court a written judgment in favor of the plaintiff and against it in solido with its co-defendant.

The minutes show, under date of May I, 1929:

“For reasons orally assigned, there is judgment for plaintiff against S. B. Goodman for $20.00 per .week for not over 362 weeks. Plaintiff’s demands are rejected as to The Texas Co.”

And, under date of May 15, 1929:

“Judgment read, signed and filed.”
“This cause having been regularly tried,, when, after considering the evidence anffl the law applicable thereto, the court being of the opinion orally assigned at the! time of rendering this judgment that th& law and the evidence are in favor thereof:
“It is ordered, adjudged and decreed that the plaintiff, Homer U. Fletcher, do have and recover judgment in his favor against the defendants, S. B. Goodman and The Texas Company, in solido, for the sum and weekly compensation of twenty dollars per week, beginning October 29, 1928, during his disability, not to exceed three hundred and sixty two weeks, with legal interest on each weekly payment from its maturity until paid, and all costs of this suit; that the fees of doctors S. L. Williams, G. H. Cassity, E. L. Sanderson and Thomas Ragan, as expert witnesses for plaintiff, are hereby fixed at twenty dollars each and taxed as costs herein; that the fees of attorney herein representing plaintiff are fixed at one-fifth the net amounts recovered on this judgment, not to exceed one thousand dollars.
“Judgment rendered in open court pn 1st day of May, 1929.
“Judgment changed, rendered, read and signed in open court on 15th day of May, 1929.
T. H. Stephens, Judge.”

It does not appear from the record, nor is it contended here, that the Texas Com■pany' asked- the trial judge, by motion for new trial or otherwise, to amend the judgment complained of. On the contrary, the minutes show, under date of May 15, 1929 —the very day the judgment was rendered:

“Oral motion made on behalf of defendant, .The Texas Company, for orders of suspensive and devolutive appeal to the Circuit Court of Appeal, second circuit; appeal granted, returnable June 17th, 1929, the suspensive bond being fixed at $2,-000.00, and the devolutive bond at $150.00.”

There is an apparent inconsistency in the Texas Company’s . request that, as to it, we reverse the judgment and reject plaintiff’s demands, and also that we decree the judgment null ab initio; but, pretermitting this point, we are of the opinion that, where the minutes and the judgment differ, the latter controls on appeal. Watkins v. Watkins, 148 La. 728, 87 So. 726. However, the error of the trial judge, if the minutes be correct, is of little importance now, in view of the fact that the case was tried on its merits and the entire record is before us on appeal, enabling us to render such judgment as the district court should have rendered, if that judgment be erroneous. Edwards & Bradley v. Cowan Kerr Lumber Co., 158 La. 335, 95 So. 800.

■Returning to the merits of the case, we are of the opinion that the relation of the Texas Company and S. B. Goodman was that of principal and contractor, within the meaning of section 6 of the Workmen’s Compensation Law, and that both defendants are liable in solido to plaintiff; and we are of the further opinion that plaintiff is" permanently totally disabled to do work of any reasonable character.

The judgment appealed from is correct, and accordingly it is affirmed.


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    No. 692
    First Circuit
    HUNT v. JONES
    (October 8, 1930.. Opinion and Decree.)
    Lindsay W. McDougall, of Covington, attorney for plaintiff, appellant.
    Brock & Carter of F-ranklinton, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff, while driving a Buick auto eastward towards Mandeville, as he crossed a bridge over Bogue Falaya river, collided on the east end of the bridge with a Ford truck in which defendant was going westward.

Plaintiff is suing defendant for $558 for alleged damages to his car.

His demand was rejected.

The Ford truck defendant was driving was loaded with about 130 melons, which weighed 2500 pounds. It was going at 15 miles an hour, a mod'erate rate of speed. An auto driven by a lady in which were several children, as he was nearing the bridge, drove ahead of him. He followed the auto at a distance of about 30 feet, when this lady driver, suddenly, abruptly, and without warning, stopped her auto close to the east end of the bridge. The situation, in which without his fault defendant was thus unexpectedly placed, required quick thinking and prompt action. He says he saw plaintiff’s car as he turned to his left to go around the lady’s car that had stopped in front of him; that plaintiff’s car was then near the middle of the bridge and about 100 feet away from him. He took that course, he said, to avoid striking the car in which was this lady and children, thinking as he did on the spur of the moment, that plaintiff could stop his car before colliding with his truck. His only thought, he says, was to save the life of this woman and these children. No doubt, he was prompted by that commendable impulse, as he was driving a truck with a heavy load from which little danger could have resulted to him if he had collided with the lady’s auto then at a standstill.

The proof is that he did all in his power, to stop his truck as he went around, and succeeded in stopping it just as its front end was on an even line with the front end of the lady’s auto. It is therefore apparent that if he had not made that turn to the left he would have crashed in the back of the lady’s car, which in all likelihood would have resulted in serious injury to her or to the children. It therefore appears from the physical facts of the case that plaintiff had correctly figured that he could not have stopped the truck before colliding with the lady’s car had he attempted to stop it instead of going around to his left. He made a mistake, however, in thinking, when he turned around, that plaintiff, then on the bridge about 100 feet away, would stop his car in time to avoid the impact which occurred with defendant’s truck. The preponderance of the proof is to the effect that the brakes on plaintiff’s car were in bad condition. It was shown that there was an incline towards the east end of the bridge. Plaintiff says, when he • saw the truck coming from around the lady’s auto, that he immediately applied his brakes. If he did, the reasonable inference is that they did not catch, as there were no marks on the planks of the bridge, which, one of the witnesses says would have been there had there been any sliding of plaintiff’s car. The proof is also that defendant’s truck was barely moving when plaintiff's car ran into it, which is another circumstance indicating that the brakes on plaintiff’s car were, at least inefficient.

In the case of Vincent v. Teche Transfer Company, 8 La. App. 323, it was shown that a ear which was being driven eastward came down on the incline of a railroad track and suddenly appeared in front of a bus which was moving from New Iberia to Lafayette. In order to avoid striking that car, and with a view of saving human life, the bus driver veered to his right and ran into a car parked on that side of the highway. We found that the Freemans who were driving the car were at fault; that there was no act either of omission or commission of the bus driver which was the proximate cause of the accident, and absolved the bus company from liability.

The facts are on similar lines here, in which it may be proper to add, as was found below, that the proximate cause of the accident herein was chargeable to the unknown lady who abruptly stopped her car in front of the truck, and not to defendant.

Let us say, in order to meet all the possible angles of the defense, that defendant fell into an error when he swerved his truck to the left, and that he should, under the circumstances, have gone to his right, or should, notwithstanding his apprehensions on the moment, have attempted to stop his car back of the lady’s auto. The most that could be said, taking the case as above suggested, is that defendant made a mistake of judgment in following the course which he adopted to avoid, a collision. He could not, however, be held for contributory negligence because he was confronted with a sudden emergency and was acting under a well founded apprehension of imminent danger. The hazards which presented themselves there had been created by the emergency which resulted from the negligent act of the unknown lady who had unexpectedly brought her car to a standstill at the head of the bridge. In such a situation a person is not expected to exercise his full judgment and reasonable faculties. If he exercises ordinary care, as we find to have been the case here, he is not negligent because he fails to exercise the best judgment. Navailles v. Dielmann, 124 La. 421, 50 So. 449, 134 Am. St. Rep. 508; Weinfield v. Yellow Cab Co., 10 La. App. 313, 120 So. 420; Pope v. Locascio, 13 La. App. 304, 126 So. 727.

The claim of plaintiff in damages was therefore properly denied.


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    No. 695
    First Circuit
    GENERAL TIRE & RUBBER CO. v. BULLOCK ET AL.
    (October 8, 1930. Opinion and Decree.)

      A. J. Finney, of Covington; attorney for plaintiff, appellant.
    S. W. Provensal, of Slidell, attorney for defendants, appellees.
   MOUTON, J.

Plaintiff sold a lot of merchandise to Donice Bullock, proprietor of a garage in Covington, La., amounting to $462.81. He paid $36.46 on account, - leaving a balance of $426.35.

It- is alleged by plaintiff that Emile Caserta and Collins Blanchard bought from Donice Bullock the fixtures, tools, furniture, equipment, etc., of his garage, without requiring him to furnish them with a sworn statement listing the names, amounts, and addresses of all his creditors before they made the purchase. On account of the alleged failure of the transferor and the vendees to comply with the foregoing requirement, plaintiff avers that the sale was made in violation of Act No. 270 of 1926, known as the Bulk Sales Law of this state.

Because of the non-compliance by Bullock, Caserta, and Blanchard with these essentials of the statute, plaintiff alleges that Donice Bullock, vendor, and his vendees, are jointly and solidarily liable to it for the balance of the account sued upon.

Donice Bullock, vendor, made no defense, and judgment was rendered against him for the amount claimed. Caserta and Blanchard filed an exception of no cause of action, which was referred to the merits. After trial on the merits, judgment was rendered in favor of Caserta and Blanchard rejecting plaintiff’s demand.

It does not-appear in the averments of the petition that Caserta and Blanchard by operation of law, or by any alleged fact or facts, had incurred any obligation, jointly or in solido, in favor of the plaintiff. It is not alleged, nor can it be inferred from these averments that there was any privity of contract between plaintiff, Bullock, Caserta, and Blanchard, the vendees of Bullock. No contractual obligation could therefore arise in favor of plaintiff, the creditor of Bullock, vendor of Caserta and Blanchard, as was well said by the court in Rosenberg & Sons v. Waguespack, 167 La. 451, 119 So. 423, in which practically similar issues were involved. In the total absence of such contractual relations arising from the allegations of the plaintiff, and with no averment of facts from which a joint or solidary obligation could be inferred, plaintiff has no cause of action to hold Caserta and Blanchard, either jointly or in solido with Bullock, their vendor, as prayed for.

The only right of action plaintiff can have against these two defendants is to have them account for the value of the goods transferred to them under the provisions of the Bulk Sales Law, subject, however to any defenses to which defendants may be entitled. Devoe and Raynolds Co. v. Jones Pharmacy, 5 La. App. 149; Armour & Co., Limited, v. Wise & McCalpin et ah, 1 La. App. page 202. The exception of no cause of action should have been maintained.

It is therefore ordered, adjudged, and decreed that the judgment be reversed, except as against Donice Bullock, that the exception of no cause of action be and is hereby maintained, and the suit of plaintiff be dismissed at its cost. .


author: DREW, J.

text:
    No. 3686
    Second Circuit
    U-DRIVE-IT-CAR CO., INC., v. THE TEXAS PIPE LINE CO., INC.
    (July 5, 1930. Opinion and Decree.)
    (October 2, 1930. Rehearing Refused.)
    Reynolds, Hamiter & Henderick, of Shreveport, attorneys for plaintiff, appellant.
    Pugh Grimmet & Boatner and P. Simon, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

Plaintiff sued the Texas Pipe Line Company, Inc., for $226.36 for damages to plaintiff’s car. Plaintiff leased its car to W. H. Powell for his personal use at a stipulated price per hour, and while Powell was driving said car, returning from a dance he had attended, and at an early hour of the morning, it collided with a truck owned by the defendant, which was parked on a paved street in the city of Shreveport, in violation of the traffic ordinance of the city of Shreveport and caused plaintiff damages to its car.

It is alleged that no lights were burning on said truck.

Defendant admits that the truck was owned hy it and that it was parked as alleged by plaintiff and that no lights were burning on said truck* It denies all other-allegations of plaintiff’s petition, and alleges that the truck was parked by one T. A. Porter, one of its employees, but he was not acting in the scope of his employment at the time he parked the said truck; that he parked the said truck on the street for his own convenience and' after working hours. Further alleges that the accident occurred entirely by reason of the gross carelessness, recklessness, inattention, and negligence of said W. H. Powell, and that neither defendant nor T. A. Porter was in any way responsible therefor. Further alleges that the acts of negligence of Powell constitute the sole, immediate, direct, and proximate cause of the accident, and in the alternative, pleaded contributory negligence on part of said Powell as a bar to recovery.

On these issues, the case was tried, and the lower court rendered judgment in favor of defendant, rejecting the demands of plaintiff. From this judgment, the plaintiff has appealed.

The first question raised by the defendant is the most serious one in the cafe; that is, was the negligence of the defendant employee, Porter, in parking the truck in violation of a city ordinance, at the time it was parked, such an act of the employee as will make the defendant liable in damages?

It is admitted that Porter was employed as driver of the truck by the defendant and that the truck was the property of the defendant. Porter testified that his hours of work were from 7 in the morning until 5 in the afternoon and that he parked the car in front of his house about 10 o’clock, we presume that night; he does not state what he had been doing with the truck between the hours of 5 and 10, nor does be state that he ceased work at 5 that day. The record is void of any testimony in regard to what his work consisted of, other than driving the truck. He testified that the defendant authorized him to keep the truck at his home at night for the reason that it was too far to go to get the truck in the morning, and that he had kept the truck at his home every night he had worked for the defendant, with the exception of the times he was not at home, and that he had parked it in the street, as he did this night, on several other nights. That is the full extent of the testimony regarding the employment of Porter, the driver, and in regard to his duties. It is not shown that his duties did not require him to keep the truck in his custody and, to the contrary, his testimony indicates that it was necessary and for the interest of defendant that he did keep the truck in his possession and custody at night. It goes without saying that if Porter’s duties required him to maintain custody and control of the trudk at night, he had to store or park it somewhere, and he should have parked it off the street.

When the plaintiff proved that the truck was the property of defendant and that Porter, the driver, and one- who parked it in the street, was an employee of defendant, it had made out a prima facie ease, and it was incumbent upon the defendant to show that Porter was not acting within the scope of his employment at the time and when he parked the truck on the street in violation of a city ordinance. The defendant has signally failed to offer any proof on this point, and the only testimony in regard thereto is that given by Porter himself, which indicates that he was acting in the scope of his employment and in furtherance of the defendant’s business, and we are forced to hold that the defendant is liable for the acts of negligence of the employee, Porter.

The testimony shows that the driver of plaintiff’s car was returning from a dance some time between 1 and 3 o’clock in the morning and ran into the truck, damaging 'the car of plaintiff. It is contended by defendant that the driver of plaintiff’s car should have seen the truck and had sufficient room to pass same, if he had been keeping the proper lookout; that the truck could be seen nearly two hundred feet, without lights on the car and by the street lights alone; and that the negligence and carelessness of the said driver were the proximate causes of the accident and at least contributed to the accident. Be that as 'it may, it is unnecessary in this case to pass upon the rights as between the defendant and the driver of plaintiff’s car, for the negligence of the driver of plaintiff’s car cannot be imputed to the plain'tiff. It suffices to say that defendant was negligent in parking the truck on a paved street in the city of Shreveport, without lights, in violation of a city ordinance, and whether that negligence alone caused the accident or only contributed towards the accident is immaterial. If defendant and the driver of plaintiff’s car both contributed to the accident or the accident was caused by their joint negligence, then both would be liable to plaintiff. It is sufficient for this case to say that the acts of negligence of the defendant contributed to the accident, and it is liable therefor.

Defendant contends that the contributory -negligence of Powell, the driver of plaintiff’s car, was in any event imputable to plaintiff, preventing his recovery. This contention is rested upon the theory that because of the relationship between Powell and plaintiff with reference to the automobile, though it be only that of bailor and bailee, plaintiff cannot recover for the injury to the automobile because Powell’s contributory negligence would prevent his recovery for injury to the automobile. There was a time when the decisions of the courts seemed to support this view of the law, but in recent years the weight of authority, we think, is decidedly to the contrary.

It is admitted that Powell was at the time of the injury to the automobile driving it for his own pleasure and not in the course of any employment with plaintiff. It is therefore plain that the relation then existing between him and plaintiff with reference to the automobile was merely that of bailor and bailee. 6 Corpus Juris, 1101; 3 R. C. L. 72.

“The negligence of a bailee using another’s automobile for his own pleasure is not imputable to the owner, so as to prevent the latter’s holding another liable for negligently injuring the car.” N. C. Lloyd v. Northern Pac. Ry. Co., 107 Wash. 57, 181 P. 29, 31, 6 A. L. R. 307.

The above-cited decision reviews the jurisprudence of many jurisdictions and the reason therein is sound:

“In Gibson v. Bessemer & L. E. R. Co, 226 Pa. 198, 75 A. 194, 27 L. R. A. (N. S.) 689, 18 Ann. Cas. 535, there was involved the hiring of a horse from a livery stable keeper and the killing of the horse by the railroad company while being driven by the bailee. The railroad company resisted the claim of damage made by the owner for the killing of the horse upon the ground of the bailee’s contributory negligence in driving upon the track. Holding that the negligence of the bailee was not attributable to the bailor, the owner of the horse, preventing his recovery, Justice Potter, speaking for the court, observed:
‘“And in Edwards on Bailments (3d Ed. 1893) sec. 392, it is said: “The hirer of wagons, or carriages and horses, receiving them into his custody to be used by him at his pleasure, becomes a bailee, and is in no sense a servant of the owner. He is responsible to the owner for the reasonable care of them, and to third persons for any negligence of his servants in the use of them. He is liable to third persons to the same extent as if he were the actual owner of the vehicles and teams used by him.” And again, in I Thompson on Negligence (1901) sec. 512, it is said: ‘‘‘Unless the principles upon which the courts have at last settled have been grossly misconceived, the negligence of a bailee or his servants is not imputable to his bailor.” As far back as the case of Bard v. Yohn, 26 Pa. 482, Justice Knox stated the law as follows (page 489): “If one lets or hires to another a horse to be used exclusively for the purposes of the latter, the owner of the horse is in no wise responsible for the negligent manner in which the horse may be used.”
“ ‘There is a difference where the owner sends a driver to manage and control the team and vehicle; for in so doing the owner retains the control, and may well be held accountable for the action of the driver, his servant and agent. But in the present case no driver was furnished, and the hirer assumed the care and control of the horse. There was no relation of master and servant or of principal and agent between the hirer and the liveryman, and the latter cannot be held responsible for the negligence of the former. Each must recover in his own right, if at all, and each must stand upon his own ground. Had Lantz, the hirer, brought suit and shown negligence by the defendant, and no negligence upon his own part, he could have recovered for damage to himself, but not for damage to the horse or vehicle. His right of action depended in no way upon that of th.e present plaintiff, nor does the right of recovery in the present action depend upon the right of the bailee to recover.’ ”

The above case is on all fours with the case here and the reasoning is applicable.

“In New York, L. E. & W. R. Co. v. New Jersey Elec. R. Co., 60 N. J. Law, 338, 38 A. 828, 43 L. R. A. 849, there was involved a bailment arising out of the hiring of cars which were injured in a collision resulting from the concurring negligence of the bailee and the' defendant company. It was sought by the defendant company to escape liability to the bailor, the owner of the cars, upon the ground of the bailee’s contributory negligence being in law imputed to the bailor. In concluding an exhaustive and well-considered opinion, Justice Lippincott, speaking for the New Jersey Court of Appeals, said:
“ ‘I cannot perceive that whether, in respect to this action, the duty of the defendant and the bailee were joint or separate, can make any difference. If the same duty of care was due and owing to the plaintiff, then a common neglect of that duty would render them both liable as joint 'tort-feasors. If the duty to plaintiff was a separate one which was neglected to be performed by each of them, although the duties were diverse and disconnected, and the negligence of each was without concert, if such neglects concurred and united in causing the injury,’ the tort still is equally joint, and the tort-feasors are subject to a like liability. Matthews v. Delaware, L. & W. R. Co., 27 Vroom (56 N. J. Law) 34, 27 A. 919, 22 L. R. A. 261. The bailee was bound to use reasonable care and diligence in the preservation of the property from injury. The defendant, in the operation of the electric car, was bound to exercise reasonable care in avoiding injury to the property of which the plaintiff was the owner. It would seem that the intervention of the negligence of the bailee could not shield the defendant from injury caused by its own negligence. Both might have been selected as joint tort-feasors, or the action could be maintained against either. The conclusion reached is that the plaintiff had the right to sue either or both of these companies for the injuries arising from their negligence to the locomotive and cars of the plaintiff, and it is not a defense to the action that the accident was contributed to by the negligence of the other. Each is liable upon its own negligence, and the negligence of the bailee is not imputable to the plaintiff as a shield to the defendant against recovery.’
“In Sea Ins. Co. v. Vicksburg, S. & P. R. Co., 159 F. 676, 86 C. C. A. 544, 17 L. R. A. (N. S.) 925, the Federal Circuit Court of Appeals for the Fifth Circuit had under consideration a bailment consisting of the leaving of cotton with a compress company to be bailed. In holding that the loss of the cotton by fire resulting from the negligence of the railway company contributed to by the negligence of the bailee would not prevent recovery by the insuranee company as assignee of the bailor. Judge Shelby, speaking for the court, said in part:
“ ‘A plaintiff cannot recover damages for an injury to which he has directly contributed by his own negligence. If the plaintiff’s own fault, whether of commission or omission, has materially contributed to the injury, the plaintiff is without remedy against one also in the wrong. The converse of this doctrine ought to follow as a necessary corollary — that when one has been injured by the wrongful act of another, to which he has in no way contributed, he should be entitled to compensation from the wrongdoer, unless the negligence of some one towards whom he stands in the relation of principal or master has materially contributed to the injury. The bailor, we hold, is not the principal or master of the bailee.’
“In Spelman v. Delano, 177 Mo. App. 28, 163 S. W. 300, the court had under consideration a bailment in substance the same as that which is here involved; that is, it was the case of a farm hand having the use for his own pleasure of a horse belonging to his employer. While he was riding the horse it was killed by the railway company of which the defendant was receiver; the death of the horse being the result of the negligence of the railway servants and the contributory negligence of the farm hand, the bailee. Holding that his contributory negligence was not imputable to the bailor, his employer, Judge Trimble, speaking for the court, made the following pertinent observations:
“ ‘It must be remembered that the question in the case at bar does not involve a bailment in which the bailee is the agent or servant of the bailor, nor is there any privity of contract between them, unless, indeed, it can be said that the bailor, merely by lending the horse, makes the bailee his agent to care for the horse, and thereby creates such a relation as will make the bailor responsible for the acts of the bailee. Now, it cannot be said that, if the bailee had, after borrowing the animal for his own purpose, negligently ridden against another and injured him, the injured person could have any right of recovery against the bailor. If it be said that the bailor, by lending the horse, makes the bailee an agent for the care thereof, and is thereby impliedly responsible for the latter's conduct in reference thereto, and also makes it possible for the injury to occur, the answer is that the bailee is not the bailor’s agent in caring for the horse, else the bailor would be responsible for a negligent injury committed by the bailee in using the horse, and this has never been held to be so. If the bailee failed to exercise the proper care, the bailor would have a right of action against him; and he would also have a right of action against a third party for negligently injuring him. And, when the negligence of the two concurs, he can sue both jointly or sue either one as he chooses. And if lending the horse can be said to render .it possible for the injury to occur, the act of lending was not such as to render plaintiff blameworthy in any degree. So that we have a case where a plaintiff, without fault or negligence of his own, is suing for a loss occasioned by the concurrent negligence of two others. In such case can one of the persons in fault set up in defense the fault of the other, as against the owner who is wholly without fault? We think not, and, while at first blush the rule that the contributory negligence of a bailee cannot be imputed to a bailor when suing a third person for injuries to property may seem unjust, yet, when the rule is confined to those bailments which do not involve any privity of contract or agency between the bailor and bailee, it will not appear to be so harsh and unreasonable as might be supposed.’ ”

This decision contains a review of the decisions on this subject and is a leading case. The following decisions also support this view: Alabama Great Southern R. Co. v. Clarke, 145 Ala. 459, 39 So. 816; Currie v. Consolidated R. Co., 81 Conn. 383, 71 A. 356; Henderson v. Chicago Rys. Go., 170 Ill. App. 616; Goldsmith v. Chicago, M. & St. P. R. Co., 176 111. App. 336.

The decisions of our own state are not in conflict with this view of the law.

We are convinced that the decided weight of authority at the present time, and also the better reason, support the view that the contributory negligence of Powell was not imputable to plaintiff under the facts of the case.

The act of negligence of defendant’s servant or employee in parking the truck on a paved street in the city of Shreveport in violation of a city ordinance was negligence per se and contributed to the accident, and the contributory negligence of Powell cannot be imputed to plaintiff; therefore plaintiff should have judgment for the damage to his automobile and the judgment of the lower court will have to be reversed.

The only remaining question is the amount of damage caused to plaintiff. It sued for $111.36, for costs of actual repairs made on car, and said amount was proved and should be allowed. It prays for loss of service of car for eight days, at $5 per day. However, the testimony shows that the car was out of commission only five days and the profit on the car was $1 per day; therefore, it is entitled to judgment for $5 on that item. It prays for $75 for depreciation of value of the car, caused by the collision, and proved that the car after being repaired was at least of a less value by $75 than before the collision and that to have put the car in the same condition as it was prior to the accident would have cost at least $100 more than was spent on repairs. We think this item is proved.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that there be judgment in favor of plaintiff, U-Drive-It-Car Company, Inc., and against the defendant, the Texas Pipe Line Company, Inc., in the sum of $191.36, with interest at the rate of 5 per cent per annum from judicial demand until paid; and for all costs of both courts.


text:
    No. 3753
    Second Circuit
    UNITED FURNITURE STORES, INC., v. ROGERS ET AL.
    (July 5, 1930. Opinion and Decree.)
    (October 2, 1930. Rehearing Refused.)

      Harry V. Booth and Hoye Grafton, of, Shreveport, attorneys for plaintiff, appellant.
    ■ ' Cook & Cook and C. D. Egan, of Shr'eve-' port, attorneys for defendants, appellees.
   DREW, J.

The petition alleges that the; plaintiff sold to one Mrs. Parks a cookstove; and some blankets, on the part cash and. part credit basis, which is usual to furni-; ture stores, and that after the sale there remained a balance due to the plaintiff t from Mrs. Parks of $32. The petition fur-' ther alleges that the defendant Rogers, • acting for himself and for the co-defend-: ant, the Cut Rate Furniture Store, of which he was alleged to be the proprietor, entered thfe home of Mrs. Parks, without her permission, and removed therefrom the stove and blankets sold to Mrs. Parks by: the plaintiff, and disposed of, the same. The petition further alleges that the plain-' tiff had an unrecorded, chattel mortgage; upon the stove and a vendor’s lien upon both the stove and the blankets. It is al-' leged that the action of defendant in taking these articles without the permission of Mrs. Parks destroyed the chattel mortgage, and vendor’s lien of the plaintiff and damaged the plaintiff in the sum of $182, which is itemized in the plaintiff’s petition as follows:

Attorney’s fees---------..._______________________________$ 50.00
Loss of time and inconvenience to its agents and employees in investigating and tracing the merchandise in question________________________ 100.00
Value of merchandise________________________ 32.00
Total damage..________________________ $182.00

The plaintiff sought judgment in the amount of $182.

The defendant set up in his answer that he is the owner of a rooming house in the part of Shreveport, La., which was formerly the city of Cedar Grove, and that the Mrs. Parks referred, to in plaintiff’s' petition was a tenant in that rooming house, and also that the said Mrs. Parks had purchased from the Cut Rate Furniture Store, which is owned by the wife of the defendant Rogers, and of which he is the manager, certain articles of furniture. The defendant further sets up that' Mrs. Parks was indebted to the Cut Rate Furniture Store for balance due upon the said articles of furniture, and that she was indebted to him, individually, in the sum of $12 for 'room rent in the rooming house owned by him. Rogers further sets up that Mrs. Parks came to him and told him that she was unable to meet the credit payments due to the Cut Rate Furniture Store and requested him to repossess the said articles of furniture sold to her • by the Cut Rate Furniture Store, and, in' consideration therefor, to release her from further obligation to pay for the said furniture. This Mr. Rogers agreed to do, and at the same time he and -Mrs. Parks discussed the question of her indebtedness to' him for room rent, and Mrs. Parks informed him that she had, in addition to the articles of furniture, purchased from the Cut Rate Furniture Store a certain cookstove, and she authorized him to take this stove and apply same on her indebtedness for room rent. With '¿he authorization above referred to, Mr. Rogers sent a truck of the ' Cut Rate Furniture Store to Bossier and took the articles of furniture that Mrs. ' Parks had purchased from the Cut Rate • Furniture Store and also the stove, which is the basis of this suit. Defendant Rogers further alleges that he sold the stove to a customer who returned it because of its unsatisfactory condition; that it was not worth in excess of $5.

There is no proof in the record in regard to the blankets alleged on, and the • sole question before the court is relative to the stove.

The lower court rejected the demands of plaintiff, and, from that judgment, plaintiff has appealed.

The sole question before the court is whether or not the taking possession of the stove by defendant Rogers was unlawful, or was he authorized by Mrs. Parks to take the stove and apply same on her personal indebtedness to him?

The only testimony in the record on this point is that of defendant Rogers and Mrs. Parks. Rogers testified that Mrs. Parks authorized him to take back the goods sold to her by the Cut Rate Furniture Store for the unpaid balance and for him to take the stove and' apply same on her debt to Rogers, personally. Mrs. Parks testified that she authorized Rogers to take possession of the goods she had purchased from the Cut Rate Furniture Store for the unpaid balance, but did not say anything about the stove. Mrs. Parks had left and moved from the place in Bossier where the goods were, and, when defendant sent for them, the house was open. It seems strange that Mrs. Parks should have left the stove without giving anyone authority to remove it, and, if she had not intended for Rogers to get it, it seems that she would have gone to plaintiff and authorized it to take back its goods for which she had failed to pay; as. she had done with defendant. This she did not do.

This question involves purely a question of fact, and the lower “court decided it in favor of the defendant. We do not think he- érred dir that respect.’ - -

It is incumbent upon the plaintiff to make out its case with a preponderance of evidence and give equal credibility to the two. witnesses. - It has -failed to make out its case. The lower court saw and heard these two witnesses and was in a better position to judge their credibility than is this court, and the lower court found in favor "of defendant. ■

To decide this question of fact is to decide the case and makes it unnecessary to discuss the right to recover for the different items of damage prayed for. For if defendant was authorized to take possession of the stove and apply same on his debt against Mrs. Parks, the plaintiff has no case against defendant. Plaintiff to; a chattel mortgage against the stove, but failed to record it, and a vendor’s privilege unrecorded is unenforceable against a third person who has acquired the propert in good faith. There is no proof that Rogers knew of the chattel mortgage and vendor’s privilege against this stove, and he says he did not know of it.

We see no reason to disturb the finding of the lower court. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 3491
    Second Circuit
    CARROLL v. INTERNATIONAL PAPER COMPANY
    (May 8, 1929. Opinion and Decree.)
    Madison & Madison, of Bastrop, attorneys for plaintiff, appellant.
    Todd & Todd, of Bastrop, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a suit under the Workmen’s Compensation Law of Louisiana (Act No. 20 of 1914 as amended). Plaintiff alleges that while carrying a cross-tie in the course of his employment by defendant he accidentally fell against a concrete post and to the ground with the tie upon him, and that in consequence his right ■ arm was pulled out of joint at the shoulder, and that he is permanently totally disabled to do work of any reasonable character.

He alleges that he is a carpenter and was earning $7 a day or $42 a week, and he prayed for judgment for 65 per cent of that sum for 400 weeks.

Defendant admitted the employment and accident, but denied that plaintiff was any longer disabled, and alleged in the alternative that, if plaintiff was still disabled, it was only to the extent of partial loss of use of function of his right arm and entitled to compensation only for such disability.

On trial there was judgment in favor of the plaintiff and against the defendant for $20 a week during disability, not exceeding 200 weeks, beginning January 30, 1928, with legal interest on each payment from its maturity, and fixing the fees of the medical experts, Drs. Gamier and Sims, at $25 each, and taxing the fees as costs, and defendant appealed. Plaintiff has answered the appeal and asks that the judgment be amended so as to award him the compensation allowed during disability not to exceed 400 weeks.

OPINION

The evidence is conflicting and irreconcilable. That offered on behalf of plaintiff, if not disputed, would entitle him confpensation as for permanent total disability, while that offered on behalf of defendant, if not disputed, would require that plaintiff's demands be rejected.

After carefully reading all the evidence we have reached the conclusion that plaintiff has permanently lost the use of function of his right arm.

However, he contends that he is permanently totally disabled to do work of any reasonable character, but this, we think, is clearly disproved by his own testimony and that of his other witnesses, which testimony shows that after the accident the arm was pulled back into place by a fellow workman of plaintiff and that plaintiff continued to work and use the arm the balance of the day of the accident, doing his work as well as he did it before the injury, and then ceased work and was under the doctor’s care for about a week, and then returned to work and continued to do the kind of work he had formerly been doing and did it as well as he formerly did, for a period of 15 days, when himself and tlje other workmen of his gang were laid off; receiving during this time the same wages that he had been receiving before the accident.

L. E. Barbary, a witness for defendant, testified that he was defendant’s superintendent of construction, and that plaintiff worked under him; that he missed plaintiff at his work, and on inquiry learned that he had been hurt; that later plaintiff returned to work; that plaintiff mad.e no complaint to him about being hurt; that after plaintiff returned to work he was able to do and did do a full man’s work and would not have been retained if he had not been able to do so.

He testified:

“Q. Now, when Mr. Carroll went back there, what was he doing?
“A. The first time he came back after being hurt — the following Monday after-wards?
“Q. Yes.
“A. Building crates to ship paper in.
“Q. What did he do the second time?
“A. The second time is where he had that heavy work.
“Q. What did he do?
“A. Using a cross-cut saw and carrying those 6x8 timbers, and everything that had to be done.”

C. D. Culbeth, a witness for defendant,’ testified that he was employed by defendant as “scratch-foreman,” and that since the accident plaintiff had worked under his direction in the construction of a storeroom or warehouse. He said;

“Q. Was Mr. Carroll working under you at the time you were constructing the storeroom or warehouse?
“A. He was.
“Q. What were his duties in that connection?
“A. He had to frame timbers and handle six by eights, and handle a cross-cut saw; and the general work we had in our line,
“Q. When was it he worked for you?
“A. In March, 1928.
“Q. Did he complain to you about his arm?
“A. He did not.
“Q. Do you recall how long he worked for you?
“A. Approximately a month, or three weeks; something like that.”

He further testified that there was no difference in the kind or amount of work plaintiff then was doing as compared with the amount or kind done by his fellow workmen; that plaintiff's fellow workmen did not help-him over hard places; that plaintiff performed a full day’s work every day; and that he made no complaint either as to. his physical condition or that he was unable to do the work. He further said:

“Q. That construction work is heavy, physidal .labor, is it not?
“A. It requires a man to be in good physical. condition to do that work.”
Doctor W. H. Gamier, a witness for defendant, testified:
“Q. What do you think is the cause of Carroll’s present condition?
“A. I think, if it is anything, it is due to a focus of infection causing, as Doctor . Wright said, a bursitis or rheumatic condition of his shoulder.
“Q. Do you think the injury he sus-' tained in January, 1928, resulted in his present condition?
'“A. No, sir.
' “Q. When- you re-examined Mr. Carroll some two or three weeks after the injury, what did he tell you about any further treatment?
“A. He said if Barbary would give him his job back, everything would be all right.” ■

This testimony satisfies us that plaintiff was not permanently totally disabled. However, he testified that after the accident he worked, under great pain and that he has not been able to perform the work of a carpenter for uny considerable length of time.

Dr. George Wright testified:

“Q. What would you say, doctor, about the probability of a permanent cure of this condition by proper treatment?
“A. I think he could be cured, yes.
“Q. What treatment would you suggest?
“A. Drainage of the bursa.
“Q. Explain that?
“A. It means an incision of the infected area and the inflammatory condition eliminated.
“Q. If that were done, in your opinion the present disability would disappear?
■ “A. Yes, sir.”
Doctor L. E. Larche testified:
“Q. Did you examine plaintiff’s shoulder?
“A. I did.
‘‘Q. What did you find the condition to exisj?
“A. I found on examination that it was very tender all over the area of the shoulder joint, and very painful to manipulation and massage, and also on exercising the joint. He could not bring his arm back hardly to his hip pocket. I had to try him to get a handkerchief from his hip pocket, and he couldn’t do it. He couldn’t raise his hand to his head. He couldn’t raise it further than about at right angles.
“Q. Did he have the use oi his shoulder?
“A. No, sir.
“Q. Doctor, this man is a carpenter. From his physical condition, is he. able to do carpentering work?
‘‘A. I should not think so.”

Plaintiff testified that after he sustained the injury complained of he worked for a Mr. Key for 8 days, and that Mr. Key turned him off because he could not do the work, and that he then went to work at the pulp mill under Mr. Calhoun and worked there for about 2 weeks and was let out by Mr. Calhoun for the same reason, and that he then worked 1 day for a Mr. Vines, and that Mr. Vines would not keep him because he could not nail above his head.

This evidence convinces us that plaintiff has lost the use of function of his right arm, so far as doing carpentering, his usual work, is concerned. It is true the evidence shows that he can use the forearm to some extent, but it also shows that he is unable to do carpenter work and hold a job as a carpenter. And this, under our interpretation of the law, amounts to loss of use of function of the arm.

“The Employers’ Liability Act should not be strictly construed in favor of the employer but rather liberally in favor of the employee.” Watkins v. Roach, 4 La. App. 258.
“A permanent total loss of the use of a member is equivalent to the amputation of the member.” Act 85 of 1926, sec. 8, sub-sec. 1, cl. (d), par. 14.
“In the following cases the compensation shall be as follows:
* * * “For the loss of an arm, sixty-five per centum of wages during two hundred weeks.” Id., par. 6.

We find no error in the judgment appealed from, and accordingly it is affirmed.


author: JANVIER, J.

text:
    No. 11,658
    Orleans
    CHARITY HOSPITAL OF LOUISIANA v. AXFORD ET AL.
    (January 13, 1930. Opinion and Decree.)
    (February 17, 1930. Rehearing Refused.)
    Emmet Alpha, of New Orleans, attorney for plaintiff, appellee.

      Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Plaintiff seeks a solidary •judgment against the three defendants in the sum of $250, alleging that to be the value of hospital, surgical and radiographical services rendered defendant, Axford, when he was injured while in the employ of defendant, Mrs. George Thoele.

The proceeding is brought under Act 126 of 1924, as amended by Act 29 of 1928.

In accordance with the provisions of the statute, the injured party, the employer, and the employers’ liability insurance company are made parties defendant.

■ The defense was at first threefold: First, that there is no such corporation as “Charity Hospital of Louisiana,” which is the name under which plaintiff sues. Second, that the statute under which recovery is sought is violative of the provisions of section 16, article III, of the Constitution of 1921 in that it contains more than one 'object. Third, that there is not sufficient proof in the record that the services •charged for were rendered, nor that the charges are reasonable and correct.

After the oral argument, defendant, through an exception of no cause of action filed in this court, set up a fourth defense based on the contention that the statutes to which we have referred, to-wit, Act 126 of 1924 and Act 29 of 1928, are violative of section 1 of the Fourteenth Amendment to the Constitution of the United States in that they make an arbitrary and unreasonable discrimination against employes, employers and insurers of employers, where the injuries were sustained under circumstances which bring the matter within the state compensation laws.

In support of the first ground of defense it is contended that the correct legal title of the plaintiff corporation is. “Board of Commissioners of the Charity Hospital,” and that that was recognized to be its title by Act 145 of 1890.

We find that in that act the governing board of the hospital is referred to as “Board of Administrators,” but the name of the institution itself is mentioned as “Charity Hospital of New Orleans.” Plaintiff sues as “Charity Hospital of Louisiana” instead of “Charity Hospital of New Orleans.” It is evident that no harm can come to any of the parties as a result of the slight error, and that on this point the case is within the doctrine announced by this court in Humphreys v. Cousin, No. 7997 of the docket, decided April 18, 1921 (unreported), in which it was said:

“Where a suit is brought for the use of the real parties in interest by a plaintiff duly authorized to bring it, and where the defendant is not deprived of any of his means of defense and will be protected by the judgment, the action will be maintained notwithstanding that technically the party before the court may not be strictly the proper plaintiff in the case.”

See also Rigaud v. Garvey, 8 La. App. 734.

Nor dó we agree with defendant in its contention that the statute of 1924, as amended by the Act of 1928, is unconstitutional in that it contains two objects. This contention is based on the fact that section 1 authorizes charity hospitals to collect charges in certain cases and that section 2 requires the board of administrators of charity hospitals to study abuses and to take necessary steps to discourage such abuses.

As we view the statute it embraces one general object: to discourage abuses re-suiting from the use of the hospital by those able to pay. If the statute be interpreted in this way, then that part of it which authorizes the charity hospitals to collect for services rendered to patients coming “within the provisions of the employers’ liability law” is merely one means provided by the legislature itself for the correction of certain of the abuses. The legislature recognized the fact that it had not before it sufficient information to determine what other abuses were being practiced and therefore gave to the institution general authority to investigate these abuses, but at the same time gave to the institution specific authority to put an end to the particular abuse mentioned. The case seems to us to fall within the doctrine announced by the Supreme Court of Louisiana in Louisiana State Board of Agriculture & Immigration v. Tanzmann, 140 La. 756, 73 So. 854, in which the court said:

“The attack upon the constitutionality of the act under which plaintiff is proceeding as based upon the ground of multifariousness of objects is without merit. The act has but one object within the meaning of the Constitution, which is to provide measures of prevention and protection against fruit and crop pests and diseases, and that object is declared in its title. All else, whether in the title or the-body of the act, are but means to the end so declared. State v. J. Poto & Bro., 134 La. 154, 63 So. 859; City of Shreveport v. Kahn, 136 La. 371, 67 So. 35; Thomas v. Board of School Directors, 136 La. 499, 67 So. 345; State v. Doremus, 137 La. 269, 68 So. 605.”

To the same effect see Bemis Bag Co. of La. v. Tax Commission, 158 La. 1, 103 So. 337. Furthermore, it should be borne in mind that these provisions of the constitution with respect to dual objects and with reference to subject matter should be interpreted in a liberal sense. State ex rel. Mouton v. Judge, 49 La. Ann. 1535, 22 So. 761. As this court said in City of New Orleans v. Cotonio, 1 Orl. App. 156:

“The requirement of singleness of subject is not intended to embarrass honest legislation, but only to prevent as we have said the vicious practice of joining in one act incongruous and unrelated matters; hence, if all the parts of a statute have a natural connection and reasonably relate, directly or indirectly, to one general and legitimate subject of legislation, the act is not open to. the objection of plurality, no matter how extensively or minutely it deals with the details looking to the accomplishment of the main legislative purpose. 124 U. S. 656; 111 U. S. 1; 105 U. S. 278; 22 W. 351; 118 P. R. 549; 97 F. R. 435; 88 F. R. 449; 54 F. R. 456; State v. De Hart, 109 La. 570, 53 So. 605; Suc. of Bienvenu, 106 La. 595, 31 So. 193; Hope et al. v. City of N. O., 106 La. 345, 30 So. 842; State v. Logan et al, 104 La. 254, 28 So. 912; State v. Ackerman, 51 La. Ann. 1213, 26 So. 80; Allopothic State Board, etc., v. Fowler, 50 La. Ann. 1358, 24 So. 809; Police Jury of Lafourche v. Police Jury of Terrebonne, 49 La. Ann. 1335, 22 So. 376; State v. Rushing, 49 La. Ann. 1530, 22 So. 798; St. Charles St. R. Co. v. Fairex, 46 La. Ann. 1031; Macready v. Schenck, 46 La. Ann. 456; Succession of Defan v. Schaeffer, 39 La. Ann. '455; State of La. v. Henderson, 32 La. Ann. 779; State v. Pilsbury, 31 La. Ann. 1; Garthwaite, Wheeler & Co. v. Wentz et al., 20 La. Ann. 196.”

The third contention, that the rendering of the services is not fully proven, and that the value thereof was not shown by a preponderance of the evidence, is without merit. Dr. Bradburn testified as to what services were rendered and Mr. Matthews, the secretary of the institution, stated that the charges made by the institution were based upon those of similar first-class hospitals. Indeed, for the services rendered, 54 days’ attention, x-ray photographs, etc., the charge of $250 is manifestly most reasonable.

Let us now consider the fourth defense which was injected into the case on exception of no cause of action filed in this court.

There is no doubt that such an exception may be filed at any' stage of the proceedings, and even in the appellate courts. In the absence of the statutes of 1924 and of 1928 the Charity Hospital would have been totally without right to bring suit for services rendered. Therefore, if the statutes are in fact violative of the state or of .the Federal constitution, they are entirely without effect, and no cause of action exists. This is one of the exceptions referred to in C. P. art. 902, and is not the case which is presented by an exception directed at insufficiency of pleading. Brown v. Saul, 4 Martin (N. S.) 434; Union Bank v. Dunn, 17 La. 234; La Casse v. N. O. T. & M. r’ Co., 135 La. 129, 64 So. 1012.

Defendant, therefore, was within its rights in filing the exception in this court, but, in our judgment, its cause is not saved by that exception for several reasons, first and foremost among which is that, in the enactment of the statutes, the state was exercising its police powers. It has many times been held that: “the fourteenth amendment was not intended to hamper, or to authorize the courts to interfere with the state’s exercise of its police power to regulate and promote the morals, health and safety of her citizens.”

Shreveport v. Nejin, 140 La. 785, 73 So. 996.

See also State v. Legendre, 138 La. 158; 70 So. 71; Barbier v. Connelly, 113 U. S. 27.

If, however, there could be any doubt that the state was acting properly in the exercise of its police power, it should be borne in mind that it is not every discrimination or distinction which is violative of section 1 of the Fourteenth Amendment to the Constitution of the United States, but that the inhibition is effective only against those discriminations or distinctions which have no reasonable foundation. In a very interesting case, the Louisiana State Board of Medical Examiners v. Charpentier, 140 La. 405, 73 So. 248, the Supreme Court of Louisiana said:

“Defendant has no interest in the exemption of which he complains, except that a similar exemption has not been accorded to him, and hi's real complaint is that, iti denying him a certificate, for which it does. not appear that he has applied, authorizing him to practice medicine, for which it does not appear that he possesses any qualifications, and, at the same time, permitting planters, farmers, and the others mentioned to engage in that practice, to the extent provided in the act, plaintiff has denied him the equal protection of the laws.
“It is well settled, however, that a statute, in order to be equal and uniform in its operation, need not extend the same privilege to every individual and corporation, but that particular and appropriate privileges and exemptions may be granted to different classes, respectively, and that:
“ ‘When the classification of such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts, at the time the law was enacted must be assumed.’ Lindsley v. Nat. Carbonic Gas Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 377, Ann. Cas. 1912C, 160; City of New Orleans v. Le Blanc, 139 La. 113, 71 South. 254, 255.
“We find no difficulty in conceiving the state of facts thus referred to as the basis of the action of which defendant complains. Farmers and ' planters, attendants and midwives, living on plantations, where access to those who are better qualified difficult, and at. times impossible, acquire, ex necessitate, a certain amount of ^formation which enables them to act in emergencies and to deal with the simpler of the ailments which are common to humanity, when no other treatment is available, and when, in the absence of any treatment, serious consequences would result.”

■ We have experienced no difficulty in conceiving of facts which, in our minds, are full justification for the enactments in question. In the first place charity hospitals are just what the name implies: institutions for the' rendering of hospital and medical services to those who are not-in position to' pay. It is reasonable to assume that employers of labor are in position to bear .the obligation placed upon them by law and among these obligations is the duty of furnishing medical and hospital services to injured employes. The same reasoning applies to insurance companies who, by their policies, agree to indemnify the employers and who thus assume the obligations of the employers. It must be presumed that they are in position to bear the expenses placed upon the employers by the statute, Act 20 of 1914.

As to the employes' themselves, we believe it was reasonable to include them within . the statute, because, under the compensation act, they are indemnified by the obligation of the employer and the insurer up to the sum specified in the act, and we have no hesitation in saying that the statutes which we ' are now investigating would be construed as creating an obligation in the employe - only to the amount which, under the compensation act, he is entitled to recover back from the employer and the insurer. '

Under the statutes referred to, plaintiff is entitled to attorney’s fees at 10 per cent on the amount sued for. The lower court awarded plaintiff judgment for $250 and attorney’s fees, and, for the reasons given, the judgment appealed from is affirmed.


text:
    No. 11,685
    Orleans
    BROWN v. JOSEPH RATHBONE LBR. COMPANY
    (January 13, 1930. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (December 3, 1929. Writ of Certiorari and Review denied by Supreme Court.)
    Edward S. Spiro, of New Orleans, attorney for plaintiff, appellee.
    John May, of New Orleans, attorney for defendant, appellant.
   PER CURIAM.

In the decree in this case we inadvertently allowed $250 for medical services. The defendant had fully discharged its obligation in that respect and the decree will, therefore, be amended by reducing the sum awarded plaintiff to the extent of $250.