text:
    No. 4038
    Second Circuit
    SMITH v. GRAND UNITED ORDER OF ODD FELLOWS OF LOUISIANA, DISTRICT GRAND LODGE No. 21
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (November 3, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      Warren Hunt, of Rayville, attorney for plaintiff, appellant.
    F. R. Smith, of New Orleans, attorney for defendant, appellee.
   DREW, J.

Plaintiff sued on a policy of insurance issued by the defendant on the life of Johnnie Smith, claiming to be his lawful widow and the beneficiary named in said policy; and that Johnnie Smith was a member of the local order of Odd Fellows at Rayville, Louisiana, and in good standing at the time of his death. She attached the insurance policy to the petition and made it a part thereof.

Defendant admits that deceased was in good standing at the time of his death, and that a policy of insurance was issued to him; admits his death and denies that petitioner was the lawful wedded wife of deceased; and that if she is the same Christian Smith for whom the new policy was issued on the life of Johnnie Smith, she is guilty of laches by retaining the same policy and not intervening in the suit of Martha Smith against the defendant, wherein Martha Smith was claiming to be the lawful widow and beneficiary of the deceased.

On these issues the case was tried below, resulting in judgment for defendant rejecting the demands of plaintiff. From this judgment, plaintiff has appealed.

The record discloses that Johnnie Smith and Mattie Smith were married on December 26, 1888, in the parish of Richland, Louisiana, and fails to show that there was ever a divorce granted to them. On October 12, 1908, a policy qf insurance was issued by defendant on the life of Johnnie Smith in which policy the beneficiary named was “Mrs. Martha Smith,” the relation to the insured being left blank. A short time after the issuance of this policy Martha or Mattie Smith left Johnnie Smith and went to Chicago, never returning until after his death. In April, 1919, the plaintiff met Johnnie Smith and on May 20, 1919, was married to him at Tallulah, Louisiana. The license was secured in Tallulah and the ceremony performed there. She continued to live with him as his wife until his death on- March 25, 1930. On April 10, 1920, Johnnie Smith had the beneficiary in the insurance policy changed to “Christian Smith,” relation, “wife,” and, as was shown to be the custom of the defendant, a new policy was issued, dated the same as the first policy, and on the face of it was written “B. C., 4/10/20,” which, is shown by the evidence to mean “Beneficiary changed, April 10, 1920.”

On May 16, 1930, Martha Smith, alleging herself to have been the lawful wedded wife of Johnnie Smith at the time of his death and the beneficiary in the policy of insurance originally issued to him, which she alleged she had always had in her possession, filed suit against the defendant on said policy. Defendant answered the suit admitting the issuance of the policy of insurance with the plaintiff, Martha Smith, named as beneficiary; admitted the good standing of deceased at the time of death, and especially alleged that Johnnie Smith had, in keeping with the laws, rules, and regulations of the defendant institution, changed the designation of his beneficiary from “Martha Smith” to “Christian Smith, wife,” on April 10, 1920, and policy No. 591 was issued to him in lieu of the former policy (policy No. 591 is the policy sued on by Christian Smith). It further alleged that due pro'of of death of Johnnie Smith was filed, in keeping with the rules of the defendant institution, on April 2, 1930, which proof of death contained, the name of Christian Smith, wife, as beneficiary. It prayed that Christian Smith be made a party defendant in the cause.

Of date June 9, 1930, there was issued by the clerk of court a summons to Christian Smith to comply with the demand of the original petition and answer and call in warranty, which summons was not served on her until June 30, 1930. The case was fixed for trial, and on June 19, eleven days before the summons was served on Christian Smith, the defendant Odd Fellows making no further appearance, Martha Smith proved up her case and was awarded judgment, as prayed for.

It is easy to see that defendant’s plea of laches on the part of plaintiff for not intervening in the Martha Smith suit falls for the reason that Martha Smith had secured judgment eleven days- before plaintiff was served with notice of suit, and it is not shown that she had any other knowledge of the suit of Martha Smith. She filed the present suit on December 6, 1930.

The uncontradicted testimony is that Christian Smith was married to Johnnie Smith in good faith, believing him to be a single man, and that she never heard from him or anyone else, until this litigation arose, that he had ever been married before; that she lived with him as his wife and everyone, so considered her, even his lodge brothers. This testimony is not denied by any witness, and the fact that she was married in Tallulah, instead of Ray-ville, where she and Johnnie were both living in no way reflects on her good faith.

Although the marriage was a nullity because Johnnie Smith was not divorced from his first wife, it produces nevertheless its civil effects. It was a putative marriage.

Civil Code, article 117:

“The marriage which has been declared null produces nevertheless its civil effects as it -relates to the parties and their children, if it has been contracted in good faith.”

Civil Code, article 118:

“If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor and in favor of the children born from the marriage.” McCaffrey v. Benson, 40 La. Ann. 10, 3 So. 393; Miller v. Wiggins, 149 La. 720, 90 So. 109; and cases cited therein.

Under the above articles of the Code and the decisions cited thereunder, a putative wife, in so far as the civil effects are concerned, is treated the same as a lawful wedded wife, and it follows that a wife who has married in good faith has an insurable interest in the life of her husband. Although a man’s concubine has no insurable interest in his life, it is otherwise as to a putative wife who has the same status and, therefore, the same insurable interest as a lawful wife.

“A woman who has lived with the insured as his wife, in the belief that she was legally married, and who is dependent on him for support, is eligible to become a beneficiary as a dependent.” Cooley’s Briefs on Insurance (2d Ed.) Vol. 2, p. 1337; Frank v. Frank, 209 Ala. 630, 96 So. 859, 32 A. L. R. 1478.

Plaintiff was the putative wife of deceased and had an insurable interest in his life, the same as his lawful wife. She was made his beneficiary in the policy sued on, in accordance with the rules and laws of the defendant institution, and is entitled to recover on the policy. She would also be entitled to recover on the policy as a dependent, under section 6 of Act No. 256 of 1912, unless it was clearly shown that she was not dependent on her husband.

Revised Civil Code, article 120:

“* * * dependence founded on a moral duty to provide for another must be recognized.” Cooley’s Briefs on Insurance (2d Ed.) Vol. 2, p. 1333.

While it is true that plaintiff does !fnot specially allege dependency, she alleged that she was the beneficiary and, we think, entitled to recover, for the reason that she was a. putative wife, or that she was a dependent or under any other head that she might fall, as enunciated in section 6 of Act No. 256 of 1912.

It is urged that the by-laws qf defendant were not introduced in evidence, and therefore it is not shown that the change of beneficiary was made in accordance therewith. When plaintiff offered the policy .and proved the change of beneficiary, she had made out a prima facie case, and it was then incumbent upon the defendant to show that the change was not made in accordance with the rules and laws of the defendant institution. This it failed to do. However, there is in evidence the judicial admission of defendant that the change of beneficiary was made in accordance with the rules and laws of the defendant institution. Without said judicial admission, it is to be presumed that the change of beneficiary was regular and in accordance with the laws of the defendant institution, unless there is proof to the contrary.

“* * * The burden is on one asserting ineligibility to prove it.” Cooley’s Briefs on Insurance (2d Ed.) Vol. 2, p. 1339.
“In the absence of proof to the contrary, the presumption is that a named beneficiary is a legal one.” Cooley’s Briefs on Insurance (2d Ed.) Vol. 2, p. 1338.

The judgment of the lower court rejecting the demands of plaintiff is erroneous and will have to be reversed. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and there now be judgment in favor qf plaintiff Christian Smith, and against the defendant Grand United Order of Odd Fellows of Louisiana, District Grand Lodge No. 21, in the full sum of $500, with legal interest thereon from judicial demand until paid, and for all costs of this suit.

McGREGOR, J., recused.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 4045
    Second Circuit
    SMITH v. THE MOST WORSHIPFUL ST. JOHN’S GRAND LODGE OF FREE & ACCEPTED MASONS OF THE STATE OF LOUISIANA
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (November 3, 1931. Writ of Certiorari and Review Refused by Supreme Court.)
    Lee J. Novo, of Alexandria, attorney for plaintiff, appellee.
    Charles Robinson, of Shreveport, attorney for defendant, appellant.
   DREW, J.

Plaintiff sued, as beneficiary under a policy of insurance issued to her husband, Henry W. Smith, deceased, by the defendant. The policy was for the sum of $500, and carried a burial fee of $75. The latter was paid directly after the death of Henry W. Smith, but the principal amount of $500 was not paid.

Defendant answered setting up as the sole and only defense that the deceased was not in good standing with the lodge at the time of his death in that he had not paid his dues for the month of January, 1929. He died on January 17, 1929.

The lower court rendered judgment for plaintiff, as prayed for, and defendant has appealed. Plaintiff has answered the appeal praying that she be awarded 10 per cent as damages for frivolous appeal, under article 907 of the Code of Practice.

Deceased was a member of True Square Lodge, No. 34, of Alexandria, Louisiana, which lodge is a subordinate lodge of the defendant; and in November, 1928, he sent to the worshipful master of his lodge $5 to cover his dues then due and to become due in the future. The worshipful master gave the $5 to the secretary who in turn gave it to the treasurer. The record shows that the dues were 85 cents per month and, out of this $5, deceased’s November and December dues, were paid., leaving a balance of $3.30. tq take care of future dues. Deceased was included in the report to the grand lodge for November and December, 1928; he was not included in the January,. 1929, report for the reason that he was dead at the time the report was made, and the custom and rules of the lodge forbade the reporting as a member one who was dead.

The money to cover the January dues was in the hands of the proper officer of the local lodge long before same was due and if it was not forwarded to the grand lodge, it was through ng fault of the deceased. This court has repeatedly held that when a member of a lodge pays his dues to the proper officer of a local lodge on or before the due date, in accordance with the rules and regulations qf the said lodge, he has complied with his duty and is in good standing, regardless of the action of the said officer in not forwarding the money to the grand lodge, the officer receiving the money being the agent of the grand lodge and not of the member paying it.

Defendant does not question this principle of law, but contends that the money was not paid by deceased for his January, 1929, dues prior to Janúary 10, 1929. It has not offered any testimony to contradict that of the worshipful master and secretary of the local lodge, which is as we have stated the facts to be. Defendant offered the treasurer of the local lodge who did not take office until January, 1929, and therefore knew nothing of what had transpired in November, 1928. It also offered the testimony of an officer of the grand lodge who testified that the grand lodge had not received the January, 1929, dues of deceased, but who refused to testify that deceased’s dues had not been paid to the local lodge on time. The other testimony offered by defendant is just as irrelevant to the issue.

The conclusive and uncontradicted testimony in the record is that deceased, in November, 1928, paid to the proper officer of the local or subordinate lodge of defendant, of which he was a member, sufficient money.to cover all dues up to and until after his death and was, therefore, in good standing at the time of his death, and the policy of insurance on his life issued by defendant and sued on herein was in force and effect at that time.

The judgment of the lower court so holding is correct. If defendant, through its officers, had used only ordinary diligence by inquiring of the officers of the local lodge, it would have ascertained that deceased was‘in good standing at the time of his death, and certainly on the. trial of the case in the lower court, with the uncontradicted testimony of the officers of the local lodge before it, it was made to know that the deceased was in gqod standing.

Insurance is usually taken for the protection of one’s family after his death, and where the insurer litigates such a claim Without a reasonable defense, it is very unjust and unfair to the beneficiary. Certainly after the trial of this case in the lower court, defendant did not have any hope of winning the suit, and we are convinced that the appeal was taken solely for delay.

Deceased departed this life in January, 1929, and, due to this unnecessary litigation, his widow, the beneficiary, has had withheld from her the money justly due her under this policy for two and one-half years. The appeal was taken for delay, and falls under article 907 of the Code of Practice, wherein damages may be awarded for frivolous appeal. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs; and it is further ordered, adjudged, and decreed that plaintiff recover of the defendant 10 per cent damages on the amount of the judgment appealed from.


text:
    No. 4040
    Second Circuit
    SOREY v. YAZOO & MISS. VALLEY R. R. CO.
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    George Wesley Smith, of Rayville, attorney for plaintiff, appellant.
    Stubbs & Thompson, of Monroe, attorneys for defendant, appellee.
   DREW, J.

Plaintiff, as the surviving father of his minor son, sixteen years of age, sues for $10,000, damages for the death of his son, alleged to have been negligently killed by one of the trains of defendant east of and beyond the corporate limits of Rayville, in the parish of Rich-land, on February 14, 1930, while sitting on the end of a cross-tie of defendant’s main-line track adjacent to the public highway where defendant’s tracks are fenced, where there is a gate, but no crossing.

Plaintiff alleges that it was the custom of citizens in that locality to use the gates in going on and off the right of way of defendant, and that, while the place was used as a crossing by such citizens, it was not recognized by defendant as. a public crossing, that the track of defendant in both directions from the place of the accident is straight and practically level; that deceased left his home with plaintiff about one-half mile north of defendant’s track, went through an open gate in the right of way fence, followed a path up to and sat down on the end of a cross-tie on the north side of the track and went to sleep, or otherwise became unconscious. That defendant’s passenger train, which was due at Rayville about 4 o’clock p. m., was on time; that it approached the place where deceased was sitting, with the view of the engineer unobscured; that the engineer, had he looked, could have seen deceased a half mile away and at one-quarter of a mile distant coüld have discovered deceased to be a human being. That it was the duty of the engineer to observe deceased and to approach him with his train under such control as would have enabled him to stop upon getting - close enough to know that deceased was a human being, or to have reason to suspect that such was the identity of the object; that, if the engineer failed to see the object and distinguish its identity, it was gross, and wanton negligence, and that the engineer negligently failed to discover the object or its identity in time to avoid striking deceased, and that the engineer continued at full speed, struck deceased, and fatally injured him.

The answer admits the death of deceased from collision with the locomotive of one of defendant’s passenger trains, running at a rapid rate of speed, but denies that the death of deceased was due to any fault or negligence on its part, and avers that such death of deceased, a trespasser was due entirely to his own fault and negligence, in that deceased, without any business or necessity calling him there, deliberately went upon defendant’s right of way and sat down oru the end of a cross-tie on the north side of defendant’s main-line track, where he could not have been and was not seen by defendant’s engineer, who was at his post, keeping a sharp and proper lookout ahead, in time to stop and avoid the accident. That on the afternoon of the day alleged, which was a cloudy day, while defendant’s train No. 237 was running at a speed of from fifty to sixty miles per hour, with defendant’s engine-men, particularly its engineer, keeping a sharp lookout ahead, with its machinery, especially all braking apparatus, in good efficient condition and working well, defendant’s engineer saw an object which he then took to be a pile of rags or dead weeds at the end of the cross-ties on the north side of the track ahead; that the engineer continued to observe the object, and, as soon as possible under existing conditions, discovered the object to be a man or ‘ boy sitting on the end of a cross-tie near the trestle; that, immediately upon so discovering the identity of the object, the engineer sounded his whistle alarm, applied his. brakes in the emergency; that the brakes responded promptly and efficiently and slowed down and eventually stopped the train, but not in time to avoid striking deceased, who, when the whistle alarm was sounded, arose, facing north and away from the track, and could easily have taken a step to a place of safety, but who suddenly stepped backward and toward the approaching train and collided with the pilot beam of -the locomotive, and was thereby fatally injured. Defendant specially denied that the death of deceased was due to any fault or negligence on the part of defendant, but averred that the accident to and resultant death of deceased was due solely to the willful negligence of deceased, a trespasser) in the discharge of no duty, without necessity or excuse in going upon the private property of defendant, and there voluntarily placing himself in a position of known danger, at a place, and so acting and under such conditions of weather and otherwise, where his presence, identity, and peril were not and could not have been discovered by defendant’s enginemen in time to avoid the accident, despite the prompt and efficient efforts by defendant’s engineer to discover deceased and to stop his train and avoid striking deceased; and that, immediately upon discovering the presence and peril of deceased, respondent’s engineer applied his brakes in the emergency and blew his whistle, which was heard by deceased, who then had ample time and opportunity to avoid injury, but only arose and then stepped toward the approaching train, by which he was struck, but which was then in the process of stopping from the application of the brakes, and stopped a short distance after colliding with deceased.

There was judgment for defendant, rejecting plaintiff’s demands, and from that judgment plaintiff has appealed.

The location of the scene of the accident-is about one mile east of the railroad station at Rayville, and one-half mile outside the corporate line. The railroad track runs east and west, and, for a distance of several miles east of the place of accident, the track is perfectly straight with very little incline, and, on both the north and south sides of the track,- there is a gate which was open at the time of the accident and a well-beaten footpath leading from one gate to the other and up the embankment on the north side. The gates are about four feet wide, and there is no crossing, either public or private, other than the use that had been made by pedestrians.

About two thousand feet east of the scene of the accident is a public crossing, and about 850 to 950 feet east of the place' of accident are the section houses under fence extending from a point about 900 feet east of the place of accident to a point about 1,200 feet east of the place of accident. Prom a point 150 to 200 feet west of the place of accident is a trestle.' On the outside of the right of way fence and parallel thereto, there is á public road that leads to the home of plaintiff, a distance of one-half mile from the scene of the, accident; the public road likewise leads back to Rayville.

That pedestrians made some use of the open gates on the north and south sides of the railroad track at the place of the accident is shown by the more or less beaten path from gate to gate. There is no thick settlement on either side of the track from the place of accident to the corporate limits of Rayville. There is an occasional farmhouse as one would ordinarily expect to find along the track in passing through any ■ farming section of North Louisiana. The track was used by pedestrians to some extent, about as one would expect to find anywhere along a track, except through isolated sections of the swamp where there are no inhabitants. It was not used to the extent that it is in thickly settled communities or within the corporate limits of incorporated towns and cities, although at the very time of the accident there was one other white man and two negroes walking on the track within a distance of one-quarter of a mile of the accident.

Deceased, a sixteen year old high school student, was drunk on Jamaica ginger, and the principal of the high school, finding him in that condition on the school grounds at about 3:30 p. m., called his father, who took the boy in charge, placed him in a car with his older brother, Herbert, who attempted to take him home. When they arrived at a point opposite the gate near the place of accident, the deceased became so uncontrollable that his brother, Herbert, could not hold him in the car and drive at the same time. He put the deceased out and went for help to handle his brother. Not finding any one at home to help him, he returned to town for the purpose of getting an officer to take charge of the deceased. After Herbert had gone, deceased walked through the open gate, following the path to the railroad, which he crossed and sat down on-the end of the cross-ties on the north side of the track. The evidence as to the position in which he was sitting is conflicting. Plaintiff’s witnesses testify that his head was resting in his left hand, with his. elbow on his knee. Defendant’s witnesses say his head was down between his knees. However, this conflict can have little material effect on the outcome of the case. All witnesses testify that he was sitting in a stooped position, and that he was dressed in -a dark blue shirt and light trousers. He weighed about 135 to 140 pounds, and was about five feet, six inches in height.

While in this sitting position, the westbound passenger train came along at a rate of speed of from fifty to sixty miles per hour; the engineer and the flagman (who was standing in the door of the baggage car next to the engine) both testify that, when the train was a short distance from the deceased, he got up, took a step or two away from the track, then staggered back into the path of the train. Deceased’s sister testified that she could see and recognize her brother in his sitting position while she was ' standing on her back gallery, a half a mile away; that she heard the train whistle, and that she tried to get as near deceased as possible and had proceeded Sown the road about one-half of the way, which was about a quarter of a mile from deceased, when the train struck him; and that deceased did not move before being struck by the train.

The evidence shows that one going down the road from the house where deceased’s sister says she was, toward deceased, had a view of the place where deceased was on the track, with the exception of a space of about one hundred yards, distance where the view was obstructed. That place on the road where the view is obstructed for about one hundred yards happens to be at the exact place where . deceased’s sister says she was when the train struck him. To say the least, her view was- not as unobstructed as that of the engineer and flagman. They were in a better position to see the actions of deceased than his sister was, and their interest in the case.can be no greater than hers.

The preponderance of the evidence' is that deceased did get up and attempt to move away from the on-coming train, then staggered back into its path. That the deceased was asleep or unconscious while sitting on the end of the cross-tie is not shown by the record. The fact that he attempted to get out of the way of the train, to our minds, shows that he was neither asleep nor unconscious, and the last persons who saw him on the track before the train came along were the two negro witnesses, who passed him while he was in the sitting position only a few moments before the fatal accident.

One of the witnesses testifying for plaintiff says that deceased was sitting with his head in his left hand, his elbow on his knee and facing east, the direction from which the train came; that he recognized the deceased, but that deceased did not speak to him and he did not speak to deceased. If deceased had been asleep, plaintiff had the opportunity to prove it by these two witnesses. They were not asked the question, and the testimony that “he did not speak to me and I did not speak to him” strongly indicates that he was not asleep, and that the witnesses expected deceased to speak. It is certain that deceased was a trespasser when he went on the tracks of defendant and guilty of negligence, and, if he was not asleep, his negligence continued up until the time of the accident and would be a bar to the recovery by plaintiff for his death.

Deceased could not have been on the track for more than ten or fifteen minutes before the accident, and unless he was groggy drunk — the contrary of which is shown by his action in resisting the attempt of his brother to take him home— he would hardly have fallen asleep in so short a time.

The engineer first saw deceased on the track when about 1,000 feet from him and did not recognize him as a human being until within six or seven hundred feet, at which time he sounded the whistle three or four times, at the same time applying the emergency brakes. The train was traveling at a rate of speed of fifty to sixty miles per hour, on a slightly down grade, and could not be stopped, by actual test, under 1,561 feet. Therefore, the engineer could not have stopped the train before reaching the deceased, after he discovered him to be a human being or after discovering an object on the cross^ties, which he at first thought to- be a bundle of rags or weeds.

Plaintiff urges that the engineer should have seen the object at least 2,000 feet away and should have recognized it to be a human being at least 1,000 feet away. That upon seeing the object, not knowing what it was, he should have slackened the speed of the train and brought it under such control as to be able to stop it before striking the person, after recognizing it to be a human being. He offers the testimony of one witness, who was. about 2,000 yards away from the deceased, just before the train struck him, who testifies that he saw the object on the cross-ties, hut could not tell what it was. He offered four or five other witnesses who, for the purpose of making a test, placed a boy in the position and place that deceased was at the time of the accident, and measured east 2,000 feet, from which point they all testified that they could see an object on the end of the cross-tie, but could not tell what it was. That they then walked back toward the object to a point where they could recognize it to he a human being, and all of the witnesses, except one, testified that, when 1,000 feet from the object, they could recognize it to he a human being. One witness says- he could not recognize it to be a human being until within 700 feet of the object.

Defendant made a like test, with the identical same train and engineer arid while running at the same rate of speed. The testimony shows that the engineer on this test first saw the object when practically 900 feet from it, and recognized it to be a human being when between 700 and 800 feet from it; and that the emergency brake was immediately applied and the train stopped within a distance of 1,561 feet.

The record is clear and without contradiction that the engineer on the day of the fatal accident did not discover the deceased until nearly 1,000 feet from him and did not recognize him to be a human being until nearly 700 feet from him; and that, after discovering him, the engineer did all that was humanly possible in order to prevent the accident, without success. Therefore, if we should presume that the unfortunate boy was asleep or unconscious, the only questions to be determined are: Was the engineer using the care required of him under the circumstances and keeping a proper lookout, and, in exercising the care required of him under the circumstances, should he have discovered the object sooner than he did and should he have slackened the speed of his train at the point where he should have seen the object, before recognizing it to be a human being?

The location of the accident was outside of the corporate limits of the town, at a place where the tracks were not much used by pedestrians, and where the agent of the defendant (the engineer) would not reasonably expect to find one asleep or unconscious on the track. The engineer was not obliged to exercise anything more than ordinary care if the deceased was not asleep or unconscious — and we do not think he was — the only thing required of the engineer was to sound his' whistle, as he could reasonably expect deceased to remove himself from the path of the on-coming train.

“Ordinary care” means that degree of care which prudent men skilled in business would be likely to exercise under the circumstances, as distinguished from “extraordinary care,” which means, the greatest care, utmost care, the .highest degree c-f care the railroad owes to those rightfully on its track and to those who are not trespassers. It is likewise the difference between the degree of care to be exercised by an engineer in traveling through a populous center, a corporated town, or where the track is used by a great number of people for a sidewalk, and when traveling through an open country outside of an incorporated town where the engineer could not be held to have reason to expect pedestrians on the track.

Under the facts in this case, we think the engineer did exercise ordinary care and kept the proper lookout, as required thereunder. It is common knowledge that an engineer cannot keep his eyes glued to the track ahead every second of the time he is running, his duties inside the cab require him to use his eyes inside the cab at times as well as to keep a proper lookout; and when on a straight stretch of track, as in this case, in the open country, it is not negligence for him to take his eyes, off the track ahead for a short time. If the engineer had taken his eyes .off the track just before reaching a point 2,000 feet from the deceased, in performing other duties, and should fail to look out for ten or •twelve seconds, the difference in the distance from where he first saw the object on the cross-ties and the distance plaintiff’s witnesses first saw it, at the speed the train was traveling, would have been covered by the train'. In some jurisdictions it has been held that a trespasser on a .railroad track is negligent, and that when he goes to sleep, after negligently going on said tracks, it amounts, to recklessness; that his negligence does not become passive by virtue of his unconsciousness, and the railroad company only owes him the duty of not willfully and wantonly injuring him, after discovering his presence. The courts of this state have held that, when- a trespasser becomes unconscious while on a railroad track, his,' negligence -then becomes only passive negligence and the doctrine of last clear chance is applicable, and the degree of care to be exercised is governed by the location of the trespasser on the track, whether in thickly populated centers or in the open country, as above set forth in this opinion.

The engineer in the case at bar exercised the ordinary care required of him under the circumstances, and, after he discovered the deceased on the cross-ties, it was impossible to avoid striking him. Assuming, however, that the engineer should, have seen the object 2,000 feet before it was struck, he was not required to slacken the speed of the train when he honestly thought the object to be a bundle of old rags or weeds, his sight being good, the object not being between the rails, and being at a place where he could not be held to reasonably expect to find a person sitting on the cross-ties asleep, unless it was an object that was likely to endanger the passengers and other persons lawfully on the train. His first duty was to those lawfully on the train, and not to trespassers.

The object claimed by plaintiff that the engineer should have seen 2,000 feet before reaching it was not such an object as would endanger the lives of those lawfully on the train, as, is shown by the fact that it was struck without injury to any one other than the deceased. If an engineer was required to slacken the speed of his train for every object seen on the track, the making of schedule time would be impossible; he is only required to slacken the speed when passing through an open •country when the object is of such a suspicious nature as to cause him to think, it might be a human being who is unable to protect himself. In this case, deceased was dressed in a manner not to make him a very noticeable figure when sitting, humped over, on the end of a cross-tie.

There is much testimony as, to whether the day was cloudy or whether the sun was shining. The evidence thereon is very conflicting, and, under our finding, has little, if any, material effect on the case. Plaintiff has failed to show that the deceased was asleep or unconscious, and' the evidence offered convinces us, that he was neither. Hé was a trespasser, grossly negligent, and his negligence continued up to the time of the accident. The engineer in charge of the train exercised ordinary care to avoid the accident, saw the deceased as soon as practicable under the circumstances, and, after seeing him, used all means available to prevent the accident. The cause of the accident was the negligence of the deceased.

The judgment of the lower court rejecting the demands of plaintiff is correct; and it is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.

McGREGOR, J., recused.


author: WEBB, J.

text:
    No. 4059
    Second Circuit
    CAUSEY v. STATE LIFE INS. CO.
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (November 3, 1931. Writ of Certiorari and Review Refused by Supreme Court.)
    H. W. Ayres, of Jonesboro, attorney for plaintiff, appellant.
    Barksdale, Warren & Barksdale, of Rus•ton, attorneys for defendant, appellee.
   WEBB, J.

Defendant, State Life Insurance Company of Indiana, issued a policy for $1,000 on the life of William H. Causey, in which Clara O. Causey, wife of the insured, was named as the beneficiary. The contract provided for a change of the beneficiary, and under that stipulation the insured changed the beneficiary from his. wife to his mother, and again from his mother to his wife, all as appears from the indorsements on the policy.

The insured died in November, 1929, and, in the present action, Clara O.* Causey, alleging that she was the beneficiary under the policy, and the facts as above stated, seeks, to recover judgment against defendant for the amount of the policy, with interest and costs.

Defendant answered admitting the facts above stated, but denied that plaintiff was the beneficiary and alleged that Minnie L. Causey, sister of the insured, was the beneficiary; and that the amount of the policy had been paid to her, less $237, which had been loaned to the insured on the policy. And, over plaintiff’s objection, defendant was permitted to file an amended answer in which it alleged that the insured had changed the beneficiary from plaintiff, the wife of the insured, to Minnie L. Causey, his sister, by a formal act which had been accepted by the defendant, and that such change of beneficiary was not indorsed on the policy for the reason that the policy was in the possession of plaintiff, who refused to surrender same for the indorsement to be made thereon. On trial, judgment was rendered rejecting plaintiff’s demands and she appeals.

As stated, the amended answer was filed over the objection of plaintiff, and on trial defendant was permitted, over the objection of plaintiff, to introduce in evidence, documents showing the application of the insured to have the beneficiary changed from Clara O. Causey to Minnie L. Causey, and the acceptance of defendant indorsed on the application, and also other documents showing that the insured had secured a loan on the policy, as alleged by plaintiff.

In presenting the cause here, appellant urges that the rulings of the court were erroneous, and further that, under the pleadings and evidence showing that there had not been any indorsement on the policy of the change of beneficiary, the proof showing that the insured had directed that a change of the beneficiary be made, although accepted by the insurer, was. not sufficient to effect a change of the beneficiary in the absence of proof that the policy was in the hands of plaintiff, and that she had refused to surrender same in order that the indorsement could be made thereon.

With reference to the ruling of the court on the objection of plaintiff to the amended answer, the objection was that the amendment changed the issues; but, considering the original answer in which defendant denied that plaintiff was. the beneficiary and alleged that Minnie L. Causey was the beneficiary, the amendment was not in conflict with the original answer and at most merely made the issue more distinct, apprising the plaintiff of the proof which would be offered to support the defense, and we are of the opinion that the objection to the amendment was properly overruled (Southport Mill Co. v. Friedrichs, 167 La. 101, 118 So. 818), and, the record not indicating that plaintiff was taken by surprise, she has. no cause for complaint.

The objection to the offering of the documents in evidence was that they were irrelevant and immaterial and not admissible to vary the contract; or, as we gather, the objection was based on the theory that it was essential that the defendant should prove that the change of beneficiary was indorsed on the policy, which is substantially the same theory advanced by appellant on the merits, with the exception that the appellant apparently concedes that, if the failure to make the indorsement of change of beneficiary on the policy was due to the fault of plaintiff, she could not take advantage of her own fault.

The provision authorizing a change, of the beneficiary required that the insured give the insurer written notice of the desired change, and the documents showing such notice were certainly relevant, and the objection to the offering went to the effect rather than to the admissibility of the evidence, and was properly overruled.

Considering appellant’s contention on the merits, and passing the suggestion that defendant did not prove the failure to indorse the alleged change of beneficiaries on the policy was due to the fault of plaintiff, which proof would not be necessary unless the indorsement was essential, or that the change of the beneficiary could not be made otherwise than by an indorsement of such change on the policy, we consider that question.

In this connection, it is conceded that the right to change the beneficiary arose from the contract between the insured and the insurer and involves the question of the intent of the parties, as expressed in the provision relative to the change of the beneficiary, which provision reads as follows ;

“The insured at * * * any time during the continuance of this policy and subject to the rules of the company regarding * * * change of the beneficiary, may change the beneficiary by a written notice to the company at its Home Office; such change shall take effect on the endorsement of the same on the policy by the company,” etc.

Considering the intention of the parties, as expressed in the provision quoted, we do not think the provision shows it was their intention that the beneficiary could not be changed otherwise than by the indorsement of such change on the policy. The requirement for the indorsement of the change of the beneficiary on the policy was for the benefit of -the insurer and could be waived by it (Supreme Council of R. A. v. Behrend, 247 U. S. 394, 38 S. Ct. 522, 62 L. Ed. 1182, 1 A. L. R. 966; Cooley’s Briefs on Ins., vol. 7, p. 6461); and the requirements should be regarded as having been made merely to evidence the consent of the insured (Quist v. Western & So. Life Ins. Co., 219 Mich. 406, 189 N. W. 49). The evidence establishing that the insured had made application on a printed form of the • insurer to have the beneficiary changed, which was accepted and consented to by the insurer, as shown by the indorsement on the application, shows that as between the insured and the insurer they did not consider it was essential that the indorsement of the change of beneficiary should be made on the policy, and there cannot be any doubt that as between the insured and the insurer the change of beneficiary was effective; and, unless it may be said that the plaintiff had a vested interest in the contract, we are of the opinion that the change of beneficiary was also effective as to her.

It is conceded that, under the provision permitting the change of the beneficiary, plaintiff did not have a vested interest in the contract, and that the insured had the right to have Minnie L. Causey, hiá sister, substituted as the beneficiary, instead of plaintiff, without the latter’s consent (Alba v. Provident Savings Soc., 118 La. 1021, 43 So. 663; Toussant v. National Life & Accident Ins. Co., 147 La. 977, 86 So. 415; Pollock v. Pollock, 164 La. 1077, 115 So. 275; Cooley’s Briefs on Ins., vol. 7, p. 6406), and we think it follows that the change of beneficiary was effective as to plaintiff.

We are therefore of the opinion that the judgment rejecting plaintiff’s demands was correct, and it is affirmed at appellant’s, cost. ■


author: McGREGOR, J.

text:
    No. 4069
    Second Circuit
    GREEN v. NORSWORTHY
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (November 3, 1931. Writ of Certiorari and Review Refused by Supreme Court.)
    Hawthorne & Files, of Bastrop, attorneys for plaintiff; appellee.
    Todd; Todd & Fraser, of Bastrop, attorneys for defendant, appellant.
   McGREGOR, J.

This is a suit involving the ownership of a mule which, at the time of the trial, was between three and one-half and four years old. The ease involves purely a question of fact. The plaintiff and the defendant are farmers who live a few miles apart in the lowlands of Morehouse parish. In the year 1927, the plaintiff was the owner of a mule colt that was born in the month of May of that year in the hills whence the plaintiff had driven his stock to protect them from the high water. As soon as the water receded, he brought the colt home with its mother, where it stayed until the spring of 1928, when he put it in his pasture, about three-quarters of a mile from ■ his home. In July of that year, he turned it out of the pasture on to the range away from its. mother. During the rest of 1928 and all of 1929, the colt was never brought home and was separated from its mother, though the plaintiff testifies that he was very proud of it and took special pains to see it as often as he could while it was in the woods.

In February or March, 1930, the plaintiff hired two negro men, Jeff Morgan and Frank Robinson, to gather up all his work stock that was still out on the range. Some few horses and mules were driven up, and among them was a young mule that had never been broken to the plow. Plaintiff and his negro tenants identified this animal as the colt that he had turned out on the range in July, 1928. As it was large enough and old enough to work, the plaintiff had it broken to the plow and used it in making his crop that season. It was never turned out again, but was kept on plaintiff’s, premises.

Some time soon after the overflow of 1927, another mule colt was born in that same community which was the property of a negro by the name of Albert Briley. From the evidence, it is apparent that Briley kept in closer touch with his colt than the plaintiff did with his, for the reason that he kept it with him from the time it was born until he sold it in 1930. About the latter part of January, 1930, Briley sold his colt to the defendant, who kept it. up until about the middle of March when he turned it out with a roan colt. From that time the defendant never saw it any more until about the latter part of January, 1931, when he found a young mule on plaintiff’s premises which he identified as being the colt he had bought from Albert Briley about a year before and had turned out. This was the same young mule that Jeff Morgan and Frank Robinson had driven up for the plaintiff, and which he identified as being the colt which he turned out in July, 1928. So that the plaintiff and defendant were claiming the same colt.

When defendant found the young mule in the plaintiff’s field and decided that it was the same one that he had bought from Albert Briley the year before, he at once took the matter up with the plaintiff, and endeavored to convince him that it was his by taking several persons to him to testify to the fact. Negotiations were carried on for several days, but the plaintiff was as firmly convinced that it was his mule as the defendant was that it was his, and he, therefore, refused to surrender it. The defendant decided to assert his rights to what he believed was his property and took the mule out of plaintiff’s field and carried it to his own premises. Being unwilling to acquiesce in this move on the part of the defendant, plaintiff brought this suit to assert his ownership of the mule, and had it seized under a writ of sequestration. Defendant then - had the mule released from seizure by giving bond. On trial in the lower court, there was judgment in favor of the plaintiff declaring the mule tc be his. From that judgment, the defendant has appealed.

OPINION

It is apparent from the evidence that there were two mule colts in the neighborhood of plaintiff and defendant that were about the same age and looked so much alike that it was difficult to tell them apart. Evidently one of them either died or strayed .away or was stolen. At least it disappeared, as. the whereabouts of only one is known, and it is claimed by both the plaintiff and defendant. Cases of this kind are always difficult, 'especially when both parties are as honest in their convictions as we believe both of these litigants are. It is incumbent always upon the plaintiff to make out his. case by a preponderance of the evidence.

ANALYSIS OF TESTIMONY

Jeff Morgan, a negro tenant of the plaintiff, testified that he helped Frank Robinson drive the colt up after it had been in the woods away from its mother from July, 1928, until February or March, 1930; that when it was turned into the lot where its alleged mother was, it ran to her and appeared to recognize her and acted as a young colt would act toward its mother. He testified that he knew the plaintiff’s colt from the time it was born, saw it all along during the time it was in the woods, and that both at the time that he and Frank Robinson put the mule involved in this case in plaintiff’s lot, and at the time when defendant took possession of it, he recognized and identified it as being plaintiff’s colt that was born in the hills during the overflow of 1927. Sarah Smith, a negro woman, testified that she knew the mule in controversy from the time it was born until it was taken from its mother tq be weaned in July, 1928; that she never saw it any more then until it was. put in plaintiff’s lot in 1930, as above set out, and that as soon as it was turned in the lot it showed that the effort to wean it had been unsuccessful; that it recognized its mother and ran to her as a young colt would do. She, too, testified that she recognized and identified it at the time of the trial as the plaintiff’s colt that was born in the hills during the overflow of 1927. The plaintiff himself testified that he had seen his colt enough from the time that it was born until the time this mule was put in his lot to be able to recognize and identify it as the one that was born in the hills during the overflow in 1927. That is all the testimony introduced by the plaintiff to show that the mule in dispute is his. Dr. J. V. Jones, a veterinarian, testified that the mule in question was between three and one-half and four years old and that it .could not be any younger than three and one-half years. J. Y, Smith and Tom Miller testified that they made crops on Mr. Henry Gates’ farm in 1928 with Albert Briley, and that they know that he moved there in the fall of 1927 and that his colt was not born until about the middle of May, 1928. They appear to be absolutely positive of this fact. If Briley’s colt was not born until during May, 1928, then at the time of the trial it would have been less than three years old, and, under the testimony of Dr. Jones, the mule in question could not be Briley’s colt. Besides himself, plaintiff produced two witnesses only who identified the mule in question as. being his colt. He produced two others who swore that Briley’s colt was less than three years old, and, as stated above, Dr. Jones, the veterinarian, testified that the mule in controversy was at least three and one-half and possibly four years, old. The above is a complete review of all the plaintiff’s testimony.

On the other hand, the defendant produced eleven witnesses besides himself. To begin with, it is proved beyond doubt and admitted that Albert Briley did own U mule colt, and that he did sell it to defendant in January, 1930. Albert Briley himself testified that his colt was born during the crop season after the overflow of 1927 on Mr. Bowes’ place. His wife, Mattie Briley, testified the same thing, and they both testified that they saw the colt all the time from its birth until January, 1930, when it was sold and delivered to the defendant. They both recognized the mule in question as being the Colt which they raised, first on Bowes’ place and then on Mr. Henry Gates’ farm, and then on defendant’s plantation. It is proved that Briley was on the Bowes place in 1927, on the Gates farm in 1928, and on defendant’s farm in 1929, and that the colt was on all three of those places. Mr. Bowes was sworn as a witness for the plainciff, but his testimony is as favorable to the defendant as it is. to plaintiff. At first he thought the Briley colt was born in the latter part of 1926, but after thinking it over he decided it was the latter part of 1927, as he felt sure it was born after the overflow of 1927, but he is absolutely certain that it was not bom during the planting and growing of the crop of that year, but that it was born while they were gathering the crop, so whether it was in the fall or spring of that year, his testimony as a witness for the plaintiff flatly contradicts two of plaintiff’s witnesses who say that the colt was born on Henry Gates’ farm about May 15, 1928; a difference of six months. Mr. A. S. Reddick was familiar with Albert Briley’s colt from the beginning, and thinks that the mule in controversy is the same animal. He remembers that the colt was stringhalted in the left hind leg, and the same thing is true of the mule. Mr. Henry Gates testifies that he knew the Briley colt from the beginning, and knew when defendant bought it and that the mule in controversy is that colt grown up. He testifies positively that it was brought to his place as; a colt and was there all of 1928, and that it was not born there. This corroborates Albert and Mattie Briley, who swear that it was born in 1927 on Mr. Merton Bowes’ place, and contradicts Messrs. Smith and Miller, the plaintiff’s witnesses, who testify that the Briley colt was born on the Gates’ place, in May of 1928. Mr. Gates further testifies that the Briley colt was string-halted, and that the same thing is true of the mule in controversy. Frank Robinson, the negro man whom the plaintiff hired to put the mule in the lot, testified that it showed no signs of recognizing the alleged mother of plaintiff’s colt, but that on the contrary it jumped over the fence out of the lot, and it took considerable help to get it back. At least two of the neighbors of plaintiff assisted in recapturing the animal, and, in order to keep it in the lot, it was necessary to hobble it with a pole. If the colt had really found its. mother and had been as familiar with her as Jeff Morgan and Sarah Smith testified, Frank Robinson would have seen it. Furthermore, it would not. have been so wild as to break out of the lot by jumping a high fence. Mr. W. C. Perdue, who was working for plaintiff when the mule was turned in his lot, testified that it did not appear to have found an animal that it thought was its mother. He also testified as to the mule jumping out of the lot, and the trouble with which it was. recaptured. This same thing was testified to by Mr. Fontenot, who assisted in getting the mule back into the lot. Mr. Hosey Humphrey testified that he knew Albert Briley’s colt, and that the mule was that colt grown up. Mr. Allie Burks testified that he knew the colt at the time that defendant bought it, and that the mule is that colt grown up. Charles Vosburg never knew the colt until defendant bought it. He knew it well when it was turned out in the spring of 1930, and knows it is the same mule. Mr. I. Vosburg knew the colt well at the time it was turned out, and recognized it as the same mule.

It might be argued that plaintiff had the mule in controversy in his lot in 1930 before defendant turned his out and that, therefore, it is the defendant’s colt that is lost, and that the mule in controversy belongs to plaintiff. The answer to that is this: While some of plaintiff’s testimony shows that he got this mule up about March 1, there is .testimony equally reliable that it was in April; so that time is not definitely fixed. Taking all the testimony together, we find that the plaintiff had this mule put up in his lot after defendant had turned his mule out. A fact more conclusively proved is this: When defendant turned his colt out in the spring of 1930, he turned out with it a¡ roan colt that every one recognized. When the mule was found and put into plaintiff’s lot, this same roan colt- of the defendant’s was with it, and had to be separated from it in plaintiff’s lot. Since the roan colt was out on the range at this time, and since it ■was turned out with the mule colt by defendant, it is an indisputable fact that defendant’s colt was turned out before plaintiff put this mule in his lot, and it is not impossible for it to be the one that defendant turned out. Another strong indication that the mule belongs to defendant is that Albert Briley and his wife and several other witnesses, who personally knew the Briley colt when it was born or when defendant bought it, not only recognized the mule as being the same animal, but recognized two distinct marks on the mule. When the colt was little it was stringhalted in the left hind leg, and the mule in litigation has the same trouble. When the colt was little it was cut on one of its hips and the hair came back white. The mule in question has. the same white spot of hair.

We have the highest regard for plaintiff’s integrity, and it is his firm conviction that he recognizes this mule as being the colt that he raised, but we believe that he is mistaken, and that he lost track of the colt some time between July, 1928, and the spring of 1930, daring all of which time it was out in the woods away from its. mother. Jeff Morgan and Sarah Smith are totally discredited in a very important part of their testimony relative to the recognition by the mule of its alleged mother. Messrs. Smith and Miller are contradicted by Mr. Bowes, one of plaintiff’s own witnesses, as well as by a. number of defendant’s witnesses. The latest date that can possibly be fixed by Mr. Bowes’ testimony for. the birth of the Briley colt would make it considerably over three years old at the time that Dr. Jones looked in the mouth of the mule in question. So, we find that the age of Briley’s colt or mule would not preclude it from being the mule in question.

In their brief, counsel for plaintiff call our attention to the fact that the appellate courts never disturb the findings of the lower courts, where only questions of fact are concerned, unless manifest error is found. We agree with this statement. We regret ever to disagree with our brethren of the lower court, but when we have a case appealed to us which we find to be manifestly erroneous, it is our duty to say so. The plaintiff must always, make out his case by a preponderance of the testimony, either in quantity or quality, or both. In this case, the plaintiff and defendant are equally credible and honest and high-minded. Their testimony is conflicting, and one is offset by the other. The plaintiff produced only two witnesses who even attempted to identify the mule in litigation as being the plaintiff’s, colt grown up. The plaintiff produced two witnesses to show that the defendant’s mule is too young to be the mule in litigation, but these two witnesses are contradicted by one of plaintiff’s own witnesses, and by five or six of defendant’s. Furthermore, the mule is recognized by a number of witnesses by two infallible signs; .viz.,, a patch of hair on one hip, and by its being stringhalted in its left hind leg. Both of these signs were present with the Briley colt and were with the mule in litigation. No attempt was made to deny either of these two signs, nor was there any evidence that plaintiff’s colt had either a patch of white hair, or was stringhalted. Furthermore, several of defendant’s witnesses recognized and identified the mule as being the Briley colt grown up, independent of the two signs named above. So we find that not only has the plaintiff failed to prove his ownership by a preponderance of the testimony, but the defendant has proved his ownership by the same degree of preponderance of the evidence that the law requires of a plaintiff. Even though the defendant had not taken possession of the mule as he did, and had become plaintiff instead of defendant in a similar suit, the same evidence would have been conclusive of his ownership of the mule.

In his answer, the defendant assumed the position of plaintiff in reconvention and prayed for damages in the sum of $25 ■for rent of the mule for the year 1930, and for $25 attorney’s fee for dissolving and setting aside the writ of sequestration. No separate motion to dissolve the sequestration was cited and, as was said in Fariss v. Swift, 156 La. 17, 99 -So. 893, citing the case of Three Rivers Oil Co. v. Laurence, 153 La. 224, 95 So. 652:

“Whenever * * * it is impossible to differentiate between the attorney’s services for dissolving the attachment and those for defending the suit, such attorney’s fees cannot then form an element of the damages, to be allowed for the wrongful issuance of the writ.”

See, also, Smith v. Keith Motors Co., 163 La. 395, 111 So. 798.

All the testimony in this case was on the merits, and was introduced solely to establish the ownership of the mule. The question of the sequestration was apparently lost sight of; therefore, this demand of the defendant cannot be allowed. The plaintiff resisted the demand for $25 for rent of the mule, on the ground that it is not such a demand as is permitted to be brought in reconvention. Defendant is in the position of demanding to be recognized as the owner of the mule in controversy. As- soon as he is. recognized as the owner, he is at once, by virtue of that fact, entitled to rent on it during the time that he was deprived of its service. If he had deferred that demand to be brought in another suit, it would have been a useless multiplication of suits; a thing that the law abhors. The fact of whether plaintiff owes defendant rent on the mule depends-solely upon who is the owner of it, and the matter is, therefore, wrapped up in the same suit and grows out of the same transaction, and is necessarily connected with and incidental to it. Under the evidence, the mule’s services for the year 1930 were worth $25, and defendant is, therefore, entitled to recover that sum.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, avoided, annulled, and reversed, and that there now be judgment in favor of defendant rejecting the demands of the plaintiff, and recognizing the defendant as the owner of the mule described in plaintiff’s petition, and entitled to its possession; it is further ordered that there be judgment in favor of defendant against the plaintiff for the sum of $25 rent for the said mulé for the year 1930, and that plaintiff pay all the costs of both courts.


text:
    No. 4046
    Second Circuit
    ALTON ET AL. v. MOST WORSHIPFUL ST. JOHN’S GRAND LODGE, ANCIENT FREE AND ACCEPTED MASONS OF THE STATE OF LA.
    (July 14, 1931. Opinion and Decree.)
    (October 5, 1931. Rehearing Refused.)
    Isaac Wahlder, of Alexandria, attorney for plaintiffs, appellees.
    Herndon & Herndon and C. M. Roberson, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

The heirs of Joe H. Dunlap sued on an insurance policy for the amount of $575, alleging that Joe H. Dunlap was a member in good standing of the defendant organization at the time of his death, and that said defendant had issued to Joe H. Dunlap an insurance policy for $500 on his life and $75 for funeral expenses; alleged that Joe H. Dunlap’s wife was named beneficiary in said endowment policy and that she has died since the death of her husband. It is admitted that plaintiffs are the heirs legally entitled to the insurance, if any is due. The sole defense is that Joe H. Dunlap was not a member in good standing of the defendant organization at the time of his death. The lower court rendered judgment as prayed for and defendant has appealed to this court.

Joe H. Dunlap died August 6, 1928, and his wife, the named beneficiary, died July 24, 1929. This suit was filed June 9, 1930, nearly two. years after the death of the insured and nearly one year after the death of the named beneficiary. Defendant proved that' the grand lodge had received no dues for Joe H. Dunlap after May, 1928; that his dues for June and July, 1928, were not paid into the grand lodge by the local secretary, and his name was not carried on the monthly report for the month of June and July, 1928. This is the report made by the local secretary to the grand lodge each month.

This court has repeatedly held that if the dues of a member of the local lodge are paid to the secretary of the local lodge within the time allowed by the charter (in this case on or before the tenth of the month) he is in good standing regardless of the negligence of the local secretary in sending same to the grand lodge. But when the defense is that the insured was not in good standing, the burden is on the plaintiff to show that the dues were paid to th© local secretary within the time fixed in the charter and by-laws.

In this case the secretary of the local lodge at the time of the death of Joe H. Dunlap is now in the penitentiary for embezzling funds of the lodge. No attempt was made to take his testimony, the plaintiffs contenting themselves with offering the testimony of two or three members and officers of the local lodge who testified that the secretary at some time near the date of the death of Joe H. Dunlap said in open lodge that Joe H. Dunlap was in good standing. They could not give dates, nor could they say whether it was just before his death or just after his death. This testimony was objected to by defendant, but admitted over the objection. There were no minutes of the meeting offered to show such a report as being official. The officers of the local lodge made arrangements for Joe H. Dunlap’s funeral, but does not show that they paid the expenses of same.

There is no positive testimony from any witness nor any written evidence that the insured’s dues were paid for June and July and the kind of testimony offered, if admissible, we think insufficient to prove that the dues were paid and to base a judgment on. The named beneficiary in the policy, his wife, who died nearly one year after the insured’s death, did not file suit to recover on the policy, a circumstance rather unusual. She no doubt knew more about his affairs than anyone else.

We cannot presume that Joe H. Dunlap’s dues were paid for June and July, 1928, and there is not in the record sufficient evidence to prove this fact.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed and the demands of the plaintiffs rejected at their cost in both courts.


text:
    No. 4053
    Second Circuit
    ARMES v. WILLIAMS BROS., INC.
    (July 14, 1931. Opinion and Decree.)
    (November 3, 1931. Rehearing Refused.)

      Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    John B. Piles, of Shreveport, attorney for defendant, appellant.
   McGREGOR, J.

This is a suit brought by the plaintiff against the defendant for damages on account of injuries alleged to have been received by him while he was in the employ of and working for the defendant driving a team of mules on September 2, 1929. In his petition plaintiff alleges that the defendant is indebted to him in the sum of $20 per week for 200 week under the Employers’ Liability Act (Act No. 20 of 1914 as amended) on account of total loss of the use of an arm. In the alternative he alleges that if the court should hold that his injury is not compensable under this act then defendant is liable to him for damages under article 2315 of the Civil Code of Louisiana in the sum of $15,000. The defendant is a foreign corporation doing business in the state of Louisiana with a duly appointed agent for service residing in Morehouse parish, where the suit was brought.- Plaintiff is a farmer residing at Ore City in the state of Texas, and during the summer months, in order to add to his income, he brought three teams of mules to Webster parish where the defendant was engaged in the construction of a pipe line toward the city o.f Shreveport. He hired these teams to the defendant for $7 per day for seven days per week, with the understanding that he was to furnish and pay the drivers. He hired two drivers at $3.50 per day each and drove the other team himself, so that it may be said that he received $3.50 per day for his services as the driver of one of the teams. These teams were used in the course of the construction of the pipe line wherever and whenever they were needed to do hauling and pulling of any kind. On September 2, 1929, plaintiff was called upon to take one of his teams and move a pot of hot tar which was in a large container set upon some kind of vehicle. Heeding these instructions, he hitched his mules to this contrivance and was proceeding to haul the pot of tar from where it was to the place directed. As he was thus moving it the pot overturned and spilled some of the hot liquid upon his hand and arm, burning him severely. The cause of the accident is alleged to have been the roughness of the ground over which the pot was being hauled and the failure to securely fasten, the lid or cover on the pot by the one whose duty it was to do so.

As a result of this burn the plaintiff was totally disabled from September 2, 1929, to about May 13, 1930, and at the time of the signing of the judgment on February 17, 1931, was considered by the judge of the lower court to be suffering a disability of at least one-half.

The defendant filed a plea to the jurisdiction based on the allegation that “defendant has no jurisdiction” within the Fourth district court and that it has “no one upon whom service may be made.” Reserving its rights under the plea to the jurisdiction, the defendant also filed an exception of no right of action under the provisions of the Civil Code. Then, with full reservations of all its rights, an answer was filed which amounts practically to a general denial. The fact of the injury is admitted, but it is contended that plaintiff was an independent contractor and that, therefore, he is not entitled to compensation under the Employers’ Liability Act (Act No. 20 qf 1914), and that there was no negligence on the part of the defendant and that, therefore, there was no liability under the provisions of the Civil Code of Louisiana. On trial in the lower court there was judgment for plaintiff for the sum qf $13.65 per week from September 2, 1929, to March 1, 1930, and thereafter for the sum of $6.82 per week during disability, with che proviso that the whole of said weekly payments should not exceed one hundred fifty weeks. The judgment also fixed the fees of the expert witnesses and of plaintiff’s attorney. From this judgment the defendant has appealed and plaintiff has answered the appeal asking that the judgment be raised to the amount originally prayed for.

PLEA TO THE JURISDICTION

The defendant excepted to the jurisdiction of the Fourth District Court “for the reasons that defendant has no domicile within this judicial district and no one upon whom service may be made.” Defendant urges this exception in its brief as follows:

“The defendant excepts to the jurisdiction of the court for the reason that the defendant is a foreign corporation and not domiciled within the jurisdiction of this court and had no authorized agent in the parish upon whom service was made. Service should have been made upon a designated agent or officer of the company, or upon the Secretary of State; none of which was done.”

In the record there is an agreement signed by the attorneys for the plaintiff and the defendant. Paragraph 3 of that agreement reads as follows:

“Defendant admits that defendant’s agent-for service of legal process upon it in the State of Louisiana resides in Bastrop, Louisiana, and so resided when this suit was filed and service was made.”

The sheriff’s return on the citation shows personal service on G. A. Peterkin, designated agent for service in the parish of Morehouse. The plea to the jurisdiction was properly overruled.

EXCEPTION OF NO CAUSE OR RIGHT OF ACTION

This exception was leveled at plaintiff’s alternative demand under the provisions of the Civil Code and is based on the theory that if plaintiff has any right of action at all it is under the Employers’ Liability Act (Act No. 20 of 1914 as amended). Defendant is not consistent in this pleading, for in its answer it alleges that plaintiff is an independent contractor and, therefore, does not come within the provisions of the Employers’ Liability Act. If the evidence should show plaintiff to be an independent contractor it is clear that he could not recover under the Employers’ Liability Act. So that, if the evidence should show further that plaintiff received his injury because of the negligence of the defendant through its agents and employees, he would have a right of action under article 2315 of the Civil Code of Louisiana.

ON THE MERITS

Defendant bases its entire defense on the theory that plaintiff was an independent contractor. Very little effort is made to refute plaintiff’s testimony as to the extent of the injury. So that, the most important and first question to be determined is whether plaintiff was working in the capacity of an employee of the defendant or as an independent contractor. In regard to the matter of his employment the plaintiff testified as follows:

“Q. Did you work under their supervision, did they tell you how to work and what to do?
“A. Yes, sir.
“Q. You had no control over their work?
“A. No, sir.
“Q. What kind of work did you do?
“A. I pulled tar pots and hauled skids and hauled tools and everything else they told me to haul.
“Q. You did anything they told you to do, in other words?
“A. Yes, sir.
“Q. Anything in line with work that could be done with a team?
“A. Yes, sir; .anything that come up with the teams, pulling wagons or slips or anything else.”
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“Q. What were you being paid for at the time you got hurt, what were you doing at that time?
“A. I was pulling the tar pot.
“Q. How did you get hurt?
“A. By pulling this tar pot with the team going down the embankment on the road and the foreman failed to lock it when he notified me to drive up. There is no brakes on this tar pot and if you don’t lock them they will run over the team and over the embankment and there ain’t no way to check them.”

Mr. G. A. Manuel, a witness for the defendant, testified as follows;

“Q. State the nature of his employment and what sort of work he was doing.
“A. Mr. Armes had some teams that were working for the company in doing general work in the construction of pipe line, and the agreement between Mr. Ar-mes and Mr. Fahey, the Superintendent, was that he would receive Seventy Cents (70c) per hour for his teams and he was to furnish the drivers, the wagons, harness and all equipment that made up the necessary equipment for that line of work, and the payment of the money was to go to Mr. Armes himself, and he was to pay his own drivers.”

This testimony is conclusive proof that plaintiff was not an independent contractor. Defendant, Williams Brothers, Inc., was engaged in the construction of a pipe line from the Monroe and Richland gas fields through North Louisiana toward the city of Shreveport. This G. A. Manuel says that plaintiff had some teams for the company doing “general work in the construction of the pipe line.” (Boldface type ours.)

Words could not make it plainer that plaintiff was not an independent contractor. Plaintiff was driving one of his teams and was subject to the orders of the defendant through its agents and employees. If tar pots needed pulling plaintiff was ordered to take his team and move them, If skids or tools or anything else needed hauling that was plaintiff’s job under the supervision of the defendant through its agents and employees. Among the duties of plaintiff was the moving of the hot tar pots at stated intervals. In doing this he was as much an employee of the company as were the other men who applied the tar to the pipe after plaintiff had set it in place for them from time to time. Counsel for the defendant is very earnest in his contention that plaintiff was an independent contractor and cites numerous authorities in support of his position. He specially urges that the case of Clements v. Luhy Oil Co., 170 La. 910, 129 So. 526, 527, is conclusive in the matter. The cases are not parallel. In that case plaintiff’s deceased husband and his partner contracted to build a derrick for the defendant for a specific contract price. The court held that the means by which the result was to be accomplished were not under the control of defendant, but that plaintiff’s husband and his partner were “wholly free to execute the contract with the material furnished according to their own methods.” This holding was based on the statutory definition of an independent contractor as found in paragraph 8 of section 3 of. Act No. 85 of 1926, which reads as follows:

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

'Under the correct interpretation of that definition, in order to class plaintiff as an independent contractor it is necessary to prove that plaintiff rendered service other than manual labor for a specified result, either as a unit or a whole, and that he was under the control of the defendant as to the results of the work only and not as to the means. In the case under consideration plaintiff renuered no service other than manual labor, nor was the service he agreed to render for any specified result, either as a unit or a whole. The service which plaintiff contracted to render and which he did render was general service of whatever kind for which a need might arise. If a pot of hot tar was to be moved the defendant, through its agents and employees, called on plaintiff to do it with his teams. If dirt was to be moved with a slip that was plaintiff’s job. If some tools were to be moved, it was plaintiff’s job to hitch his team to a wagon or other vehicle and load and move them. Whenever a need arose in the general construction of the pipe line that required hauling with the team plaintiff was called on to render his service. And, furthermore, in the rendering of his service to defendant, plaintiff was under the control of the defendant entirely as to the means by which the result of his service was to be accomplished. So taking the Clements v. Luby Oil Company case (which is the latest and clearest expression of the Supreme Court on the subject) as a guide, it is clear that plaintiff in the case under consideration was not an independent contractor. Defendant had the authority over “plaintiff to order him to “go there” and he would go, and to command him “to do this” and he would do it, even though in each case he used his teams in obeying the command. He was not free to render any particular service in any manner, but he rendered all his service under the sole direction and supervision of the defendant, both as to the means and the results. Counsel for defendant says that plaintiff was doing “team contract work.” That may be true in a sense, but in this case he was not an independent contractor for the reason that all the work that he was doing with his teams was done under the direct control and supervision of the defendant through its agents and employees.

In addition to the case which we have just discussed, counsel cited a number of other authorities which we shall discuss in order.

Johnson v. Vincennes Bridge Company, 167 La. 111, 118 So. 820. In this case defendant had the contract for the" construction of a bridge. A carload of steel that was to be used in the construction of the bridge arrived at the depot. Plaintiff contracted for the job of moving this steel from the car to the bridge site for a specific sum. In this case he rendered service for a specific sum for a specified result and was under the control of the defendant as to the results only of delivering the steel to the proper place and not as to the means of doing so. That cannot be said of plaintiff in the case under consideration. His work was a part of the general construction of the pipe line, for 6. A. Manuel, a witness for the defendant, says Armes was working for the company in doing general work in the construction of the pipe line.

Gallagher v. Southwestern Exposition Association, 28 La., Ann. 943. This .case is not in point. The plaintiff was working for an independent contractor and was injured. He brought suit for damages against the employer of the independent contractor and the court held that he could not recover. The case was decided before the enactment of the Employers’ Liability Act, and counsel for defendant in his brief practically admits that the doctrine of this case is no longer correct when he says:

“However, if one of the employees (or plaintiff) had been injured the defendant company would have been responsible under the decisions of the Court of Appeal and the Supreme Court of this state.”

There was no question raised as to what constitutes an independent contractor and the case is not, therefore, applicable.

Robichaux v. Morgan’s L. & T. R. R. & S. S. Co., 131 La. 727, 60 So. 206. This is a case where the son of plaintiff was Killed while rendering service for an independent contractor and his parents brought suit for damages for his death against -the employer of the independent contractor. The court very properly held that there could be no recovery. This case also was decided before the enactment of the Employers’ Liability Act and is not applicable to. the case under consideration in which the issue is raised as to whether the plaintiff is an independent contractor or whether he is an employee within the purview of the Employers’ Liability Act. In the cited case there was no controversy as to what constitutes an independent contractor.

Lutenbacher v. Mitchell-Borne Construction Co., 136 La. 805, 67 So. 888, 19 A. L. R. 206. This is another case that did not involve the Employers! Liability Act. It likewise involves merely the effort to recover damages from the owner on account of the death of an employee of an independent contractor. It does not involve the question raised by defendant in the case under consideration.

Clark v. Tall Timber Lumber Co., 140 La. 380, 73 So. 239. In this case the plaintiff contracted with defendant to make and deliver cross ties for a stipulated sum. In the work of making the ties he was injured and sought to recover compensation from the defendant under the Employers’ Liability Act. The court' held him to be an independent contractor. The decision is fully justified by the definition of an independent contractor quoted in the beginning of this opinion. The defendant had no control whatever over the plaintiff as to the means by which the work was to be performed, whereas in the case under consideration the defendant had complete control over the plaintiff as to the means by which the result of his labor was accomplished.

Muldry v. Fromherz & Drennan, 142 La. 1087, 78 So. 126. This is a ease in which an injured third party undertakes to recover damages from the owner of a building when the injury was inflicted by an independent contractor. There was no controversy as to what constitutes an independent contractor. The only question decided in the case was that the employer or owner is not responsible for the injury inflicted on third persons through the fault or negligence of the independent contractor. In this case the independent contractor was employed to do a definite piece of work for a specified sum, while he was to have complete control over his movements and the means selected and used by him in accomplishing the result or object of the contract. No such situation existed in the case at bar.

Ryland y. Wheeler Lumber Co., 146 La. 787, 84 So. 55, 57. In this ease the court stated the facts as follows:

“Defendant owned timbered lands on and near Black river, in what is known as Black river swamp, 22 miles from Jones-ville, and was having the timber felled and cut into sawlogs, which plaintiff had contracted to haul to the river bank at- the rate of $3 per 1,000 feet; he to furnish his own teams, employ, control, and discharge the working men required, and to be his own master in the matter of handling his outfit and the methods to be adopted in the execution of the contract.”

Plaintiff sought to recover damages from defendant on account of an, injury received by him in the course of his performance of this contract. The court very correctly held that he could not recover for the reason that he was an independent contractor and not an employee. Under the terms of his contract he had complete control over all his movements as well as the means to be used by him in accomplishing the result of the service to be rendered by him. Such cannot be said of the plaintiff in the suit under consideration.

Helton v. Tall Timber Lumber Co., 148 La. 180, 86 So. 729, 730. In this case the deceased husband of the plaintiff was doing special work for the defendant at a stipulated rate of pay. He was his own boss entirely, worked when and as long as he pleased, and went and came at will, without any control being exercised over him or his movements by the defendant. In discussing the capacity in which he was working, the court said:

“A workman who in the manner of doing his work is under nobody’s direction or control but his own cannot be classed as an employee, but is an independent contractor.”

Plaintiff jn the present case cannot be compared with the deceased in the case cited.

Rome v. Mexican Petroleum Corp., 3 La. App. 523. This case is cited by counsel for defendant on account of the following paragraph of the syllabus:

“Liberal interpretation of the law is the rule of reason governing courts in compensation cases, and' no definite inflexible rule can be established. Each case must be considered in the light of its own facts and attending' circumstances.”

The question of an independent contractor did not arise in the case in any form. On account of a liberal interpretation of the law the plaintiff recovered. In the present case even a strict interpretation of the law classifies plaintiff as an employee rather than as an independent contractor.

Brown v. Weber King Lumber Co., 3 La. App. 596. In this case it is held that when one contracts to cut and haul cross ties at a specified rate with no foreman or superintendent to control him as to his time or manner of work, he is an independent contractor. The conditions that prevail in the case under consideration are not parallel with those in the case cited.

Harris v. Dobson Bros., 6 La. App. 223. In deciding whether the plaintiff was an employee or an independent contractor the court said:

“Plaintiff alleged that he was employed by both Dobson Brothers and the ‘company.’ Both of them denied this. The burden was on him, therefore, to prove the fact. We do not think he has discharged this burden. His testimony as to the conditions under which he worked convinces us that he was not the employee of either defendant but an independent contractor. He was a professional loader of ties by occupation. He labored for others who had ties to be loaded as well 'as for defendants. He worked on such days and during such hours as he pleased. He was not under obligation to load any given number of ties in any fixed space of time. Neither of the defendants had any control over the manner in which or the time when he should do his work. He was not paid for his services by the hour, day or week, but so many cents for each tie he loaded; and this whether the number he loaded amounted to a carload or not; three cents each for pine and gum ties and four cents each for white oak and red oak ties. When he saw ties stacked along the railroad right-of-way ready for shipment, if he was at leisure he would request Dobson Brothers to have a car ‘spotted’ for him to load them in. He says ‘they (meaning Dobson Brothers) knew “I could load ties and had been following it for some time,” and they would say, the ties are there and the company (meaning the International Creosoting & Construction Company) would pay for them’; and thereupon he proceeded to load the ties into the car in his own way and taking his own time. This does not show a relationship of employer and employee between him and the defendants or either of them. On the contrary, it shows him to have been an independent contractor; on a small scale, it is true, but nonetheless an independent contractor.”

In the present case the plaintiff cannot be said to have been working in the way in which the plaintiff in the cited case was. Therefore, that case cannot be used as authority for classifying this plaintiff as 'an independent contractor.

QUANTUM OP DAMAGE

As we have already said, the fact of the injury is admitted. It remains to ascertain its extent. The testimony in the case was taken out of court by counsel in the city of Shreveport on November 18, 1930. The plaintiff testified that he was totally disabled until about May 13, 1930, and that from then on he could do only a small amount of work. At the time of the taking of the testimony his hand was still in bad condition, though it appears that the injury was then confined to his hand.

Doctors G. H. Potts and O. C. Rigby examined the plaintiff on the day of the taking of the testimony and it is their testimony that his hand will always be more or less disabled. Dr. Potts’ testimony in part is as follows:

“A. I examined Mr. Armes this morning at my office and I find that he has a first and second degree bum on the top portion of the right hand and lower one-third of his arm from about three inches below the wrist joint down over *he back of his hand and including three fingers, middle finger, ring finger and little finger. These scars, the modified star or scar tissue is denser at the area about two inches above his wrist where it appears to have caught up some of the "tendons, but is fairly loose and pliable over the rest of his hand. I also found that he has several small ulcers, one especially on his joint at the middle finger over to the side, which are superficial and in fact they do not extend below the scar area.
‘‘Q. Did you test out the strength of the hand?
“A. The strength of his hand as far as grip is concerned is not normal compared to the other hand.
“Q. About what percentage would you figure that to be?
“A. I would say that the grip is less than twenty-five per cent of what it should be.”

Dr. Rigby agrees with Dr. Potts in practically all his conclusions.

Mr. J. A. Perguson, a neighbor of the plaintiff, testified that plaintiff carried his arm in a sling and that “it was way up in the spring” before he could do any work on his farm.

Doctors E. L. Sanderson and J. E. Slicer testified fQr the defendant. They examined the plaintiff on July 15, 1930, several months before the other two doctors did on the day the testimony was taken. They found evidences of a burn, and it was their opinion that the hand had recovered and that there was no disability at the time of their examination. They did not examine him on the day that the testimony was taken, and. as Doctors Potts and Rigby found on that day disability of at least one-half, it is evident that the plaintiff did not make the progress that Doctors Sanderson and Slicer thought he would make on July 15. Since the testimony of the physicians placed on the stand by the plaintiff is based on an examination made at a much later date than that made by the other doctors, we are bound to give their testimony more weight and consideration.

It is certain that plaintiff is suffering from a permanent disability in his hand and is entitled to compensation from the date, of the injury for a period of one hundred fifty weeks. Taking the testimony as a whole, we find that the disability is at least 60 per cent. Plaintiff was working seven days in the week, and allowing him the same wages that he paid his other drivers, it is but fair to say that he was earning wages at the rate of $3.50 per day, and that his weekly wages were therefore '$24.50.

For the reasons assigned it is hereby ordered, adjudged, and decreed that the judgment appealed from be and it is hereby amended so as to allow the plaintiff compensation at the rate of 60 per cent, of 65 per cent of $24.50, or $9.55 per week from September 2, 1929, for a period of one hundred fifty weeks, each weekly payment to bear legal interest from the date of its maturity, and as thus amended the judgment is affirmed, the defendant to pay the costs of both courts.