text:
    No. 2954
    Second Circuit
    MUSICK v. THE CENTRAL CARBON CO., INC.
    (December 21, 1927. Opinion and Decree.)
    (February 3, 1928. Rehearing Refused.)
    (May 7, 1928. Affirmed by Supreme Court on Writ of Certiorari and Review.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servan —Par. 154.
    The additional compensation provided for by Par. 8 of Section 8 of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act No. 43 of of 1922 being punitory does not vest a right thereto in the employee until reduced to judgment. Therefore, Act No. 85 of 1926 reducing the amount of additional compensation from twice to one and one-half times the normal compensation has the effect of making Act No. 85 of 1926 alone effective in cases in which judgment was rendered after it became law.
    2. Louisiana Digest — Master and Servant —Par. 160 g.
    Under Act No. 85 of 1926 amending the Workmen’s Compensation Act No. 20 of 1914 granting a new term of prescription, the method of computing the prescription beginning under the old law is as follows: the time which elapsed under the former law will be counted in the ratio which it bears to the whole period, and the time of new law will be computed on the basis the ratio that the unexpired term of the law bears to the whole time.
    3. Louisiana Digest — Master and Servant —Par. 154.
    Section 17 • of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act No. 38 of 1918 "provides that the interested parties which have the right to settle all matters of compensation between themselves with the approval of the court which implies that they have the same liberty of compromise with relation of compensation with the- approval of the court as they would have as to other rights or liabilities.
    4.Louisiana Digest — Master and Servant Par. 154.
    A judgment by a court on a compromise agreement granting more than eight per cent, discount is under the provisions of Section 17 and Section 8, Subsection 8, of the Workmen’s Compensation Act No. 20 of 1914, as amended, a. judgment by a court which has jurisdiction rationae materiae and is therefore res judicata.
    Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by Mrs. Dora Cooper Musick, individually and as natural tutrix, against The Central Carbon Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed sustaining plea of res adjudicata.
    Matthew C. Redmond, of Monroe, attorney for plaintiff, appellant.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

P. Harvey Musick, while employed by the Central Carbon Company, Inc., on the 28th day of December, 1923, received injuries arising in the course of his employment which disabled him and which required his being sent to a sanitarium in Monroe, Louisiana, where he remained for about two weeks, following which he returned home where he was under the care of physicians who dressed his wounds several times each week, and on or about February 1, 1924, the injured employee contracted pneumonia and was taken to the sanitarium, where he died on February 5, 1924.

On April 14, 1924, the Central Carbon Company, Inc., and Mrs. Dora Musick, widow of P. Harvey Musick, appearing individually and on behalf of' her minor children, of • whom there were five, presented a petition to the District Court having jurisdiction, in which they alleged the facts above stated, and further, that at the time of the injury the employee was earning sufficient wages to entitle him to the maximum compensation of eighteen dollars per week, and that the Central Carbon Company, Inc., had paid the sum of two hundred and fifty dollars medical and hospital fees and the sum of two hundred and thirty-four dollars compensation for the time the employee was disabled, and that the Central Carbon Company, Inc., denied that the injury received by the employee was the cause of the pneumonia contracted by the employee, or the cause of the employee’s death, and further alleged that the parties had, under the provisions of the Employers’ Liability Statute (Section 17) agreed to settle the matter of compensation, by the employer paying the further sum of three thousand dollars in settlement and compromise of the claim; and they prayed that the court authorize the settlement, and in accordance therewith the court rendered a decree approving the compromise and authorizing the payment of the amount agreed upon to be made.

On February 17, 1927, Mrs. Dora Cooper Musick, widow of P. Harvey Musick, appearing individually and on behalf of her minor children, filed the present suit in which she sets up the proceedings formerly had, as above, and she further alleges that P. Harvey Musick, her husband and father of the minors, was injured while in the scope of his employment and came to his death on or about the 5th day of February, and that at the time of the injury he was receiving sufficient wages to entitle him to receive compensation at the rate of eighteen dollars per week and that payment had been made at such rate for a period of thirteen weeks until the death of P. Harvey Musick, and that on the death of P. Harvey Musick defendant was liable to petitioner, individually and as tutrix, in the sum of eighteen dollars per week for a period of two hundred and seventy-seven weeks, or five thousand one hundred and sixty-six dollars, and that the settlement, had under the former proceedings in which she received three thousand dollars, was contrary to the law in effect at that time, for the reason that the discount was at a greater rate than eight per cent per annum as provided by Section 8, Paragraph 8 of the amendment in force at that time (Act No. 4 of 1922) and that the petitioner is entitled under the provisions of the statute to recover double the amount due, or ten thousand three hundred and thirty-two dollars, subject to a credit of three thousand dollars, with Idgal interest from demand.

The defendant excepted, pleading that the petition failed to state a right or cause of action, and further pleaded prescription of two years under the amendment of 1926; and the cause being submitted on the pleadings, the exceptions were sustained and judgment rendered dismissing the suit at plaintiff’s cost, from which she appeals.

OPINION

The plaintiff bases her right of action under Paragraph 8 of Section 8 of the amendments amended by Act No. 43 of 1922, which, reads as follows:

"The amount payable as compensation may be commuted to a lump sum settlement at any time by agreement of the parties if approved by the court as solely and clearly in the interest of the employee or his dependents; provided that in making such lump sum settlement, the payments due to the employee, or his dependent, under this act, shall not be discounted at a rate greater than eight per centum per annum. If such lump sum settlement be made without the approval of the court, or at a discount greater than eight per centum per annum, even if approved by the court, the employer shall be liable for compensation at twice the rates fixed in this act, and the employee or his dependent shall, at all times within five years after the date of the payment of the lump sum settlement, and notwithstanding any other provisions of this act, be entitled to demand and receive in a lump sum from the employer such additional payment as together with the amount already paid will aggregate twice the compensation which would have been due under this act, but for such lump sum settlement. But upon the payment of a lump sum settlement commuted on a term agreed upon by the parties, discounted at not more than eight per centum per annum and with the approval of the court, the liability under this act of the employer making such payment shall be fully satisfied, provided, that for injuries scheduled in paragraph 1(d) and 2 of this section, no shorter term than herein set forth shall have been agreed upon.”

And Paragraph 2 referred to above, in so far as applicable, reads as follows:

“That for injury causing death within one, year after the accident weekly compensation shall be paid under this act, for a period of three hundred weeks to the following persons:
# * sis *
“(c) If widow * * * and two or more children, then to such widow * * * and children for their joint benefit, sixty per centum of wages.”

The proceedings referred to, as stated above, purport to have been initiated under Section 17 of the statute (as amended by Act No. 38 of 1918) which reads as follows:

“That the interested parties shall have the right to settle all matters of compensation between themselves. But all agreements of settlement shall be reduced to writing and shall be substantially in accord with the various provisions of this act, and shall be approved by the court. The agreement between the employer and employee or his dependent shall be presented to the court upon joint petition of employer and employee or his dependent, . which petition must be verified by both parties. The settlement so approved shall be immediately entered as the judgment of the court, and such judgment shall have the same force and effect and may be satisfied as other judgments of the same court.”

The exception of no cause of action is based upon the theory that the judgment or decree rendered in the proceedings had was res adjudicata, and that the plaintiff could not, as she has attempted to do, go behind the judgment, or, if she could, that the allegations are insufficient to show a cause of action, and, further, if the decree was not binding on the plaintiff, that Paragraph 8, Section 8, provided for a penalty and had been repealed without saving to the plaintiff the right of action given, and that any right of action which plaintiff may have had ceased to exist, and also, if the law had not been repealed, that the period of limitation or prescription had been changed to two years, and that plaintiff’s right of action had prescribed.

We consider these contentions in the following order.

First: That the provisions of Paragraph 8, Section 8, provides for a penalty, and had been repealed without saving to plaintiff the right of action given, and that any right of action she may have had to demand the penalty had ceased to exist.

Second: That the right of action had prescribed, or become barred by limitation.

Third: That the judgment rendered in the proceedings formerly had was res adjudicata, and that the plaintiff was bound by the decree, and if not, her allegations were insufficient to state a cause of action.

(1-2) Paragraph 8, Section 8, was amended and re-enacted by Acts No. 216 of 1924 and No. 85 of 1926, the latter amendment providing for a period of prescription of two years and also that the amount of recovery should be together with the amount already paid one and one-half times the amount of compensation which would have been due, and in the cause of Ike Taylor vs. Locke Moore & Co., Ltd., No. 28,580 on the docket of the Supreme Court, it was said as to the nature and the provision, and effect of the amendment of 1926:

“The additional compensation provided for in the statute * * * being manifestly punitory in character created no vested right thereto in the employee, unless and until reduced to judgment.
“This we take to be a well settled rule of law.
“And where before such claim for penalty is reduced to final judgment the statute allowing such penalty is repealed the right of action to recover it is lost.”
* * Si! *
“It so happens in this case, however, that the penalty imposed by the statute * * * was not entirely abrogated by the statute of 1926 but was only reduced to one-half over and above the compensation which was legally due but for the lump sum agreement.”

We are therefore of the opinion that the ruling quoted disposes of the contention of defendant that the clause providing for the penalty was repealed by Act No. 85 of 1926, and conceding that, the clause was not repealed and the period of prescription was merely changed, and that only about one year of the prescriptive period of five years provided by the statute had expired at the time of the amendment, and that the action was brought within a period of something more than one half of a year after the amendment, we find that the right of action, if any existed, had not prescribed. The rule being that upon the substitution of a new term of prescription, the time which elapsed under the former law will be counted in the ratio that it bears to the whole period, and the time of the new law will be computed on the basis the ratio that the unexpired term of the old law bears to the whole time. Thus, if under the old law one-third of the time had expired, then two-thirds of the time of the new law would be allowed within which to sue. (See U. C. Mfg. Co. vs. Lobdell, 7 Mar. (N. S.) 108; Reeves vs. Adams, 5 La. 288; Goddard’s Heirs vs. Urquhart, 6 La. 659; Xanpi vs. Orso, 11 La. 57; Thompson vs. Scales, 11 La. 560; Whitworth vs. Ferguson, 18 La. Ann. 602; Fisk vs. Bergerot, 21 La. Ann. 111.)

(3) The pleadings show that the employee, husband and father of the plaintiffs, was injured while employed by the defendant, in an accident arising in the scope of his employment, and that the accident was of such nature as to at least temporarily totally disable him, and that he was at the time earning sufficient wages to entitle him to receive the maximum weekly compensation, or eighteen dollars per week, and that the defendant paid the employee or his dependents, full compensation for the period following the accident to the daté of his death, and in the joint petition filed by the employer and dependents, it is alleged that the defendant denied liability for the employee’s death or that the injury was the cause of his death or of the disease (pneumonia contracted by the employee) with which he suffered at the time of his death.

As previously stated, the parties in the petition presented.to the court alleged that they proceeded with reference to the provisions of the statute (Section 17) although they allege that their agreement was based upon a compromise, and the judgment rendered appears to have been rendered on the agreement.

The plaintiff apparently contends that Section 17 of the statute, when considered with relation to other provisions, and especially with Paragraph 8, Section 8, does not authorize a compromise agreement and judgment thereunder, and that the decree was not binding upon her and the payment made under the decree w.as not only an admission of liability for compensation under the statute at the rate of eighteen dollars per week for three hundred weeks, but was also proof of a lump sum settlement at a discount of more than eight per cent per annum.

Plaintiff has not attempted to illustrate in argument or by the citation of authorities the conclusions resulting from his contentions as to the effect of the payment by the defendant. However, the fundamental basis of the contention appears to be that the court was without jurisdiction rationae materiae, and if such was not the case, it is unnecessary to consider the effect of the payment as an admission or as having been made in violation of law.

The purpose of the statute is to provide compensation for employees who are disabled by accident arising in the the course of and out of their employment, and to their dependents where death results from the accident. The administration of the statute in the last analysis is left to the courts and as one of the questions necessarily to be determined in all cases where liability is denied relates to the question of the relation between the accident and the death of the employee, it must be determined at one time or another, unless the parties may by compromise, adjust their differences by mutual consent (C. C. Art. 3071) under the general provisions of the law.

The statute (Section 17) provides that the interested parties shall have the right to settle all matters of compensation between themselves with the approval of the court, which would imply that the parties have the same liberty of compromise with relation to matters of compensation, with the approval of the courts, as they would have as to other rights or liabilities. The statute, however, provides that the agreement of the parties shall be substantially in accord with the- various provisions of the Act, and conceding that other provisions of the statute, where liability is admitted, have limited the power of the parties to settle matters of compensation with the approval of the court to the terms of the statute; we do not think that such is the case where liability is not admitted, or where it appears that there were intervening causes to which the death of the employee may be attributed, rather than the accident, and that where the situation is such, that the question presented is legitimately one of compromise. Otherwise, in all such cases the parties would necessarily be forced to a suit where the question would have to tie determined, without regard to whether or not the parties before the court desired to compromise.

We do not think that such a contraction should be given to the statute, which we conceive would be necessary in order to hold that the court was without jurisdiction rationae materiae.

The statute declares that the judgment rendered shall have have the same force and effect as other judgments of the same court, and in default of the plaintiff having alleged error in the agreement, or other matters which may have affected the judgment, we are of the opinion that it is conclusive against her contentions, and that the exception of no cause of action was properly sustained.

The judgment appealed from is therefore sustained.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3067
    Second Circuit
    MILLER v. BRENNER LUMBER CO.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 6, 1928. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)
    1.Louisiana Digest — Master and Servant —Par. 154, 156.
    Where one engaged in operating a saw mill buys saw logs at a fixed price per thousand feet, board measure, delivered at his mill, the relation of contractor and contractee or employer and employee is not thereby created between him and the employees of the vendor so as to make the purchaser liable under the Workmen’s Compensation Act for an injury to or the death of such an employee by accident while engaged in cutting or hauling such logs.
    2. Louisiana Digest — Master and Servant —Par. 154, 156.
    Where one engaged in operating a saw mill has contracted to buy saw logs at a fixed price per thousand feet, board measure, delivered at his mill, the fact that to enable the vendor to execute the contract on his part he loans him money with which to buy standing timber, the loans to be deducted out of the price of the logs as delivered, does not make the purchaser of the logs the agent or employee of the vendor within the contemplation of the Workmen’s Compensation Act No. 20 of 1914 as amended.
    3. Louisiana Digest — Master and Servant —Par. 154, 156.
    An operator of a saw mill who has contracted to buy saw logs at a fixed price per thousand feet, board measure, delivered at his mill, does not become liable under the Workmen’s Compensation Act for an injury to or death of by accident of an employee of the vendor while engaged in cutting or hauling the logs by reason of the fact that under agreement with the vendor he pays to the haulers on delivery of logs their charges therefor and deducts the amounts so paid from the price agreed to be paid the vendor.
    Appeal from the ■ Ninth Judicial District Court, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Mrs. Leona Miller against Ferd Brenner Lumber Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Hawthorn & Stafford, of Alexandria, attorneys for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff sued the defendant for compensation under the Workmen’s Compensation Act for the death of her husband, Clyde Miller, which she says occurred in an accident while he was employed by and engaged in performing services for the defendant.

Defendant denied liability and denied that the deceased was in its employ and alleged that he was in the employ of one John Gunter and that Gunter was not its agent or employee or contractor or subcontractor and that it had no relations with him other than it had contracted to buy from him saw logs at a fixed price per thousand feet, board measure, delivered at its saw mill, and that the deceased met his death while in the employ of John Gunter and hauling logs for him to defendant’s saw mill under the contract of purchase and sale between Gunter and defendant.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and she has appealed.

OPINION

Defendant is engaged in operating a saw mill and purchased from one John Gunter, who is engaged in selling saw logs, saw logs at a fixed price, per thousand feet, board measure, delivered at its saw mill. Gunter employed plaintiff’s husband, Clyde Miller, to haul the logs to defendant’s saw mill at a stipulated price, per thousand feet, board measure, the price depending on the length of the haul. While engaged in loading logs on a truck to be hauled to defendant’s saw mill under this contract between him and Gunter the plaintiff’s husband accidentally received an injury which caused his death.

Plaintiff contends that the relation between defendant and John Gunter was not that of vendor and purchaser of logs but that of principal and contractor within the meaning of the Workmen’s Compensation Act (Act No. 20 of 1914 and amendments) and that under Section 6 of the Act the defendant is liable to her for compensation for the death of her husband as if he was directly employed by it. And counsel cite numerous authorities in support of this contention, none of which establish, in our opinion, that under the facts of this case plaintiff’s husband was an employee of the defendant or it a principal and John Gunter a contractor within the meaning of the Act.

In the case of Levi B. Young vs. C. F. Petty Stave & Lumber Co., recently decided by this court and not yet reported, we held that an operator of a saw mill that bought saw logs at a fixed price per thousand feet, board measure, delivered on the skid-way at its saw mill, was not liable for compensation under the Workmen’s Compensation Act for injuries accidentally received by the driver of a truck while engaged in hauling logs for the vendor under his contract with the purchaser; and we regard that case as decisive of this one.

The evidence shows that defendant loaned John Gunter money to buy standing timber for his own account and that as an accommodation to him it paid to the haulers of logs their charges therefor on delivery of logs at the saw mill and deducted from the price of the logs delivered the moneys so loaned or advanced; and plaintiff contends that this shows that the relation between Gunter and defendant was not that of vendor and purchaser but of employer and employee or principal and contractor.

We do not think so. Defendant was under no obligation, express or implied, to lend or advance Gunter money for either purpose and its doing so was merely an accommodation to him to facilitate him in the performance of his contract.

Plaintiff’s husband was an employee of Gunter and not of defendant and defendant was not a principal and Gunter a contractor within the contemplation of the Workmen’s Compensation Act. Gunter was a vendor and defendant a purchaser of saw logs delivered at its mill, and consequently in no way liable for the death of plaintiff’s husband.

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


text:
    Nos. 3017 and 3018
    Second Circuit
    GUILLOT v. T. & P. RAILWAY CO.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 6, 1928. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Railroads—Par. 62.
    It is negligence for a railroad company to operate a locomotive and train of cars over a public road at grade crossing without keeping the bell ringing or the whistle blowing continuously from the time the locomotive reaches a point three hundred yards from the crossing until after it has passed the crossing.
    Act No. 12 of 1924.
    2. Louisiana Digest — Railroads—Par. 63, 64.
    It is settled jurisprudence in Louisiana that before attempting to cross a railroad track in a vehicle the driver of the vehicle should stop, look and listen for approaching trains and that he should stop and observe from a point where he can see trains approaching from either direction on the track, and that his failure to do so is negligence and will bar the recovery of damages.
    Gibbens vs. N. O. Terminal Co., 159 La. 347, 105 So. 367.
    Sullivan vs. Tremont & Gulf Ry. Co., 4 La. App. 358.
    Andrepont vs. T. P. Ry. Co., 5 La. App. 625.
    B. & O. R. Co. vs. Goodman, — U. S. —.
    3. Louisiana Digest — Negligence—Par. 29; Railroads — Par. 76.
    A boy 5 years, 8 months and 21 days old is prima facie incapable of being guilty of contributory negligence.
    Westerfield vs. Levis Brothers, 43 Ann. 63, 9 So. 52.
    4. Louisiana Digest — Negligence—Par. 38, 41.
    Where the tender age of a child renders it doubtful whether he has the mental capacity to be guilty of contributory ■ negligence, that he has such capacity must be alleged and proved.
    Westerfield vs. Lewis Brothers, 43 Ann. 63, 9 So. 52.
    5. Louisiana Digest — Negligence—Par. 20.
    The contributory negligence to defeat a right of action must be that of the person injured.
    McGinn vs. McCormick, 109 La. 396, 33 So. 382.
    Appeal from the Twelfth Judicial District Court, Parish of Avoyelles. Hon. L. P. Gremillion, Judge.
    Action by Teska Guillot, Senior, individually and on behalf of Teska Guillot, Junior, against Texas & Pacific Railway Company and Teska Guillot, Senior, and wife against Texas & Pacific Railway Company.

      Cases consolidated.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed except as to cost in case of Teska Guillot, Senior, individually and for and on behalf of his minor son, Teska Guillot, Junior, but reversed in case of Teska Guillot, Senior, and Mrs. Naomie Roy Guillot against Texas & Pacific Railway Company.
    Bordelon & Norman, of Marksville, attorneys for plaintiffs, appellees.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

These two suits grow out of a collision at a public grade crossing between a train owned and operated by defendant, Texas & Pacific Railway Company, and a wagon drawn by a mule, belonging to plaintiff, Teska Guillot, Senior, in which wagon were his two sons, Samuel Guillot, aged about thirteen years, and Teska Guillot, Junior, aged about six years. Samuel Guillot was killed and Teska Guillot, Junior, severely injured in i the accident. In suit No. 3017 plaintiff, Teska Guillot, Senior, sues for $10,000.00 for the use and benefit of his son, Teska Guillot, Junior, and for $200.00 for medical attention and other expenses caused him by the accident, and in suit No. 3018 he and his wife sue for $25,575.00 for the death of Samuel Guillot.

Plaintiffs allege negligence on the part of defendant in that it failed to ring the bell or blow the whistle on the locomotive that collided with the wagon and that it permitted Johnson grass and other weeds to grow upon its right-of-way at and near the point of collision, which weeds prevented the boys from seeing the approaching train.

Defendant denied liability and denied the acts of negligence alleged and pleaded that the boys failed to stop, look and listen before driving upon the railroad track and that had they done so they would have seen and heard the train and the collision would have been averted, and averred that this was negligence on their part and barred recovery.

The cases were consolidated in the District Court for the purpose of trial, and the cases tried on these issues.

Plaintiff was awarded judgment for $5700.00 in suit No. 3017, of which $5500.00 is for the use' and benefit of Teska Guillot, Junior, and $200.00 for his own use and benefit, and judgment for $8575.00 in suit No. 3018. Defendant appealed from both judgments.

OPINION

The District Judge rendered a written opinion covering both cases, but a separate judgment was signed in each case. As the facts in both cases are almost identical,- we shall treat the cases as one and dispose of both in one opinion and judgment.

The evidence is conflicting as to whether the bell on the locomotive was rung or the whistle blown when the train approached ’the crossing. Our learned brother of the District Court was of the opinion that the whistle was not blown nor the bell rung, and in our opinion the evidence makes it certain that the bell was not rung nor the whistle blown continuously from the time that the locomotive reached a point three hundred yards from the crossing until' it had passed the crossing. We are also of the opinion that the defendant permitted its right-of-way at the crossing to grow up in Johnson grass and other weeds and that this also was negligence.

Defendant contends that plaintiff is barred from recovery in both suits by contributory negligence on the part of the two boys, in failing to stop, look and listen for trains before going upon the track.

The evidence shows that Samuel Guillot, the boy that was killed, was driving a one-mule wagon in which his brother, Teska Guillot, Junior, also was riding. It was in the day time and the mule was being driven at a walk.

The engineer in charge of the locomotive A. Rodrigues, testified, pages 309 and 310, to the effect:

“Q. Was it good day-light?
“A. Yes, sir, it was good day-light.
ífc í¡5 Sfr ❖
“Q. How far were you from this crossing when you saw these boys approaching it?
“A. About two hundred feet.
“Q. Before you reached the crossing, had the mule reached the track — when you first saw it, was the mule on the track?
“A. It was about to get on the track.
“Q. When you first saw it?
“A. It was about eight feet from the track when I first saw it.
“Q. Did the mule ever stop until it was struck?
“A. No, sir.
“Q. Went right up on the crossing?
“A. Yes, sir.”

The deceased boy, Samuel Guillot, could have seen and heard the train at least two hundred feet before it reached the crossing and at least eight feet before the mule harnessed to the wagon reached the track; and as the mule was being driven at a walk the deceased, in our opinion, was guilty of the grossest kind of negligence in permitting the mule to walk upon the track immediately in front of a fast moving train, and this negligence bars plaintiff’s right to recover damages for his death, notwithstanding the negligence of defendant.

The defendant was negligent in failing to ring the bell, or blow the whistle on the locomotive continuously from the time the locomotive reached a point three hun-' dred yards from the crossing and in al-. lowing Johnson grass and other weeds to grow upon its right-of-way which obscured the vision up' and down the track of any one approaching the track.

The evidence shows that Teska Guillot, Junior, was only five years, eight months and twenty-one days old at the time of the accident and was therefore incapable of being guilty of negligence. The negligence of the driver of the wagon, Samuel Guillot, cannot, therefore be imputed to him, and plaintiff is entitled to recover for the use and benefit of Teska Guillot, Junior, and for the medical expense he was put to by the accident.

As to the injuries sustained by the boy and the amount he is entitled to recover, our learned brother of the District Court in his opinion said :

“Now, as to the amount of said damage. The court examined the law in connection with the jurisprudence and the evidence, and finds as follows:
“The younger boy was found on the cow-catcher, or front part of the locomotive, Dr.- Jones, Tr. p. Ill, testified as to the following injuries. Lacerated shoulder, upper and lower hip, dislocation of right elbow, bruise on hands, hemorrhage in right thigh, contusion of hip and slight burn in bend of knee, and a laceration of tile scalp. An x-ray picture of the skull shows an increased proliferation of the inner plate.
“It was also testified that, before the accident, the child was bright, quick, active, full of fun and free from any ills or’ pain. Since the accident, he has been apathetic, morose, easily frightened, anemic, pale, with soft and flabby flesh, and has fits and severe headaches. The expert testimony given is to the effect that a proliferation as a rule is permanent; and while none of the physicians would state positively that this boy would remain an invalid, still there is some evidence that there is a possibility of the proliferation extending to the brain eventually resulting in epilepsy and paralysis.
“In view of these facts, the court will allow $4500.00 for the injury and impairment of health, $1000.00 for physical suffering, and . $200.00 to the father for medical attention and other expenses and incidentals, as alleged. These damages are about in line with the general holdings of the Supreme Court.”

We concur in these findings and conclusions of the District Judge.

For the reasons assigned, it is ordered, adjudged and decreed that in suit No. 3017, Teska Guillot, Senior, individually and for and on behalf of his minor son, Teska Guillot, Junior, the judgment be affirmed, except as to the costs, and that as to them, that one-half of the stenographer’s fees and' one-half. of the cost of summoning witnesses and witness fees be taxed against plaintiff; and it is further ordered, adjudged and decreed that in suit No. 3018, Teska Guillot, Senior, and Mrs. Naomie Roy Guillot, the judgment' be reversed, plaintiffs’ demands rejected and their suit dismissed at plaintiffs’ cost.


author: JONES, J.

text:
    No. 10,607
    Orleans
    GRIFFIN v. CHALMETTE LAUNDRY & DRY CLEANING COMPANY, LTD.
    (April 23, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625, 626.
    The conclusions of the trial judge upon issues which involve only the facts of the case and veracity of one witness as against another, will not he disturbed on appeal.
    Item Co. vs. Hereford, 1 La. App. 288.
    2. Louisiana Digest — Automobiles — Par. 4 (b).
    Where two automobiles approach an intersection at a right angle and one of them nearly completes the crossing before the other arrives at the intersection, the one which almost traverses the intersecting street is entitled to proceed, notwithstanding the fact that the other car had the right of way.
    Vance vs. Poree, 5 Da. App. 109.
    3. Louisiana Digest — Automobiles — Par. 4 (b).
    Where two automobiles approach each other at a right angle on intersecting streets and one of them enters the intersection some time before the other, it is entitled to proceed notwithstanding the other car has right-of-way.
    Hirsch vs. Ashford, 5 La. App. 290.
    Appeal from Division “E,” Civil District Court. Hon. Wm. H. Byrnes, Jr., Judge.
    Action by James Griffin against Chalmette Laundry & Dry Cleaning Company, Ltd.

      There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellant.
    Frank Doyle, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit for Twelve thousand, five hundred ($12,500.00) dollars, damages for personal injuries arising out of an accident which occurred at the corner of Esplanade Avenue and Galvez Street in this city, on February 14, 1925, about 4:10 p. m.

Plaintiff alleges as follows:

The driver of defendant’s truck, which was coming up Galvez Street toward Canal Street, failed to stop before entering the intersection as required by City Traffic Ordinance and negligently drove into the right rear side of plaintiff’s Marmon car, jamming it against a telephone post on the neutral ground; the Marmon was practically destroyed and he was hurled to the pavement, sustaining various bodily injuries.

Defendant denied plaintiff’s allegations as to negligence and pleaded contributory negligence.

The trial judge after a thorough analysis of the evidence found both drivers guilty of negligence, which continued up to the very moment and dismissed the suit.

Plaintiff has appealed.

Griffin, the plaintiff, who was driving a Marmon sedan for Monteleone, in the livery business, was going out Esplanade Avenue to the Fair Grounds Race Track to “get a load.”

He testified in part as follows:

He was working on a salary and commission; the last race on that day went to the post about half 'past four o’clock p. m.; to be certain of getting a load it was necessary for him to reach the race track early; he was driving a heavy high-powered automobile about twenty miles an hour; when he reached the intersection of Galvez Street, a white laundry truck belonging to the defendant, attempted to cross the ■ lower roadway of Esplanade Avenue at his fastest speed about fifteen miles per hour, but he did not see it until he was within fifteen feet of it, about to enter the intersection; the truck struck .the right-hand rear of the Mármon and jammed it up against a telegraph post on the neutral ground; he did not slow down for passengers to get off the street car ánd didn’t know whether any got off or not; truck driver didn’t stop and didn’t look, was watching some change in his hand; he was thrown out of left door, had two front teeth broken, the tip end of his nose cut off and his knees skinned, truck was turned partly around by the blow and was facing up Galvez Street at a forty-five degree angle toward lake; Marmon, after accident, was facing like the truck, but further in Esplanade Avenue and nearer the telephone post, front end of Marmon was not injured; pulled his machine to the left as far as he could, without going on neutral ground; he was practically over the intersection when truck struck him and left white marks on rear and door, you can’t see through the iron fence surrounding the house on the downtown river corner of Esplanade Avenue and Galvez Street, if you approach the intersection as he did.

Just before he left the stand he testified as follows:

“Q. And you did not see the truck until it was out in the intersection?
“A. No, I did not see the truck until I saw him going in there. I was in the intersection when he came out — when he came right on out of Galvez Street.
“Q. When you collided with the truck, did not the front of the truck scrape • along the side of the Marmon?
“A. I think it did, after he hit me. My car was going this way, and he was ' going that way (indicating), and natu-' • rally, it scraped.
“Q. It scraped along the right hand; ■ side?
“A. Yes, sir.”
' To support this theory, plaintiff pre-. sented two witnesses; one by the name of. '“Spears,” who was a chauffeur for the Checker Cab Co., Inc., and a friend of ' Griffin, a Mrs. Orsini:
Spears testified in part as follows '(Transcript, page 22):
“Q. How far wás the Marmon from the intersection at the time you saw the ■truck?
“A. In front of , me?
“Q. No. How far from the corner of Galvez was the Marmon at the. time you 'saw the truck ■ come up?
“A. Well, at the time I saw the truck— oh,- how far was the Marmon ahead of me?
“Q. How- far was the Marmon. from the corner at that time?
“A. I would say about ten or fifteen ■ feet. ' ’ •
“Q. • You testified, I believe, that, going out Esplanade, the Marmon was going at a speed of between fifteen and twenty miles an hour. Is that correct?
“A. Absolutely.
“Q. Then, as he approached the corner of Galvez, he slowed down?
“A. Absolutely.
“Q. On account of a car putting off passengers at that corner?
“A. Absolutely.
“Q. About what speed did he slow down to?
“A. I would say about ten miles.
“Q. Was he going about ten miles an hour at the time of the collision?
“A. Absolutely.
“Q. By ‘absolutely’ you mean ‘yes’?'
“A. It must be.”

Here the trial judge admonished Spears to take the matter seriously.

Later he says, after accident back and front left wheels of Marmon were on neutral ground, when impact occurred he turned quickly into Galvez Street to avoid hitting truck; Griffin came out of right front door; saw him get up and left.

The other witness for plaintiff, Mrs. Orsini, testified that she was standing in her gate on Milne Street. Milne Street is. not a continuation of Galvez. It cuts into Esplanade from the uptown side to the right of Galvez Street and the two streets, Galvez and Milne, form a triangle on the upper side of Esplanade Avenue, on which triangle there is erected an engine house. The witness’ home fronts on Barracks Street, but she was standing in her rear gate on Milne Street at the time of the accident about in the middle of the block, between Esplanade and Barracks, the next street above Esplanade toward Canal Street. Although she had no reason to do so, she says she kept her eyes contantly on this truck and also the Marmon until the collision. She could not give any information with reference to the street cars or passengers, but she gave minute details with regard to the movements of the- -laundry truck which did not stop at the intersection, though the Marmon was coming slowly.

Jas. J. Donelon testified that the block between Galvez and Johnson, the next street on Esplanade toward the river, was three hundred twenty feet, that the lower road-way of Esplanade up to curb of neutral ground was thirty-six feet and from neutral ground curb to car track nine feet more.

As there are two car tracks in the neutral ground and the upper road-way is equally as wide as the 'lower and Mrs. Orsini was in the middle of the block ; between Esplanade on Milne Street, she. must have been at least one hundred seventy-five feet away in a slightly diagonal direction from the scene.

Azcona, defendant’s truck . driver, testified as follows:

He stopped at the intersection of Esplanade Avenue and Galvez Street for two reasons: First, because he was required to stop at Esplanade, and secondly, because there was a' colored man about to cross the intersection of Galvez Street from the lake to the river. He looked towards the river. As the house on the lower river corner of Galvez and Esplanade Streets sits back in the yard and has around it an iron fence, he could see practically to the next street, that is, Johnson Street; he saw no automobile and proceeded to cross Esplanade at a speed of eight miles per hour, and when he was four or five feet from the neutral ground he was struck by the Marmon machine and turned completely around, so that his truck was facing downtown, that is, facing in the direction from which he had come; the Marmon was turned at an angle towards uptown, that is, facing up Galvez Street towards Canal, a little Beyond the intersection; the only damage to his truck was the breaking of the small wooden posts that support the windshield on either side in front of the truck, called “stanchions.”

Lewis, a negro who was walking in Esplanade towards the river, testified as follows;

As he reached the intersection of Galvez Street, he saw the laundry truck coming up Galvez Street, the truck came to a complete stop at the intersection; he saw plaintiff’s automobile coming at a very high rate of speed out Esplanade. Hollander, a clerk in the First Precinct Police Station, who lives in the house situated on the lower river corner of Galvez and Esplanade and was summoned by both sides, testified:

“I had just alighted from a Buiek coach of my own and walked into the house and I heard the exhaust of an automobile like the muffler was off, making a lot of noise — sh-sh-sh-sh-sh—and I said to my wife, ‘Listen to this fellow.’ As I turned to the window, I looked out of the window and the car passed like that (indicating rapid movement by gesture of the hands), and two seconds later I heard the crash.”

Later he says Marmon was going faster than twenty-five miles per hour.

The record contains several photographs of the damaged Marmon, which show that the entire rear portion of the car was completely wrecked. These confirm the statement of Hollander and are persuasive of the fact that the Marmon was going more than twenty-five miles per hour.

The above analysis of the evidence convinces us that the testimony of Mrs. Orsini and Spear as well as that of Azcona and Lewis is inaccurate and ’untrustworthy.

Griffin’s statement to the effect that he was in the intersection when truck came out and struckk him seems impossible. He was going about twenty miles per hour close to the neutral ground, but the truck couldn’t go over twelve, and as the lower roadway of Esplanade is just as wide as Galvez, he would certainly have passed in front of the truck if his story were true.

Plaintiff’s able attorney argues that the white marks on the rear door of the Marmon show that the white truck struck it, but we believe that Griffin, the chauffeur of the Marmon, swerved to the left, as he says he did, when he saw he couldn’t pass in front of the truck and that he struck the front of the truck a side blow with his right rear side which threw him up against the telephone post and wrecked his car. This is confirmed by the fact that the truck was turned completely around by the blow and only its front stanchions were broken.

We agree with the trial judge that the truck crossed without stopping, but that it had pre-empted the intersection and plaintiff was guilty of contributory negligence in trying to beat it across.

For above reasons the judgment is affirmed.


author: CLAIBORNE, J.

text:
    No. 10,141
    Orleans
    DIX v. BOHRER
    (April 23, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    We see no error in the judgment and it is therefore affirmed.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Mrs. Frederick H. Dix against Philip Bohrer.
    There was judgment for defendant and plaintiff appealéd.
    Judgment affirmed.
    Wm. McL. Fayssoux, of New Orleans, attorney for plaintiff, appellant.
    Charles Rosen, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit by the purchaser of a moving picture show against her vendor.

The plaintiff alleged that by notarial act dated June 24, 1921, she purchased from the defendant Bohrer the “Victory Theater,” a moving picture show with all its contents, more particularly: 1st, an Electric Piano; 2nd, an Electric Fan, and 3rd, an Oscillating Fan, and that the 1921 taxes were to be prorated befWeen them; that the theatre was sold as a going concern with all equipment in good working order and was to be delivered accordingly; that although the act of sale was passed on June 24th the defendant refused to deliver it until the 27th or three days later; that during those three days the defendant operated the theatre and retained the receipts from admission which amounted to $173.55; that the defendant also collected from screen advertisements from June 24th to June 30th, $7; that she paid for the repairs of the electric fan, $5.50; that she also paid $10 for painting the sign of the “Victory Theatre” which defendant had agreed to paint; that she also paid $85 to repair the piano which was not in good working order; that under the direction of the defendant she delivered the oscillating fan for repairs to one Cambias who has not returned the same and that it is worth $35.50; that she has also paid to the City the 1921 taxes amounting to $18.36 of which the share of the defendant is $8.87, all of which amount to $327.14 which defendant refuses to pay.

The defendant admitted the sale but denied that the theatre was to be delivered in good working order but same was sold just as it was; he denied that the theatre was to be delivered on the day of sale, but on the contrary it was to be delivered on July 1st; he admitted owing the following amounts:

1st, Screen Advertising -------------------------$4.00
2nd, Repairs to Electric Fan ---------------- 5.50
3rd, City Taxes __________________________________________ 8.87
Making a total of ----------------------------$18.37

He denied all the other allegations of the petition. Assuming the character of plaintiff in reconvention defendant claimed the amount of his deposit on film contracts $339.95, which plaintiff had promised to reimburse.

There was judgment in favor of plaintiff for $18.37 admitted by defendant, and in favor of defendant against plaintiff for $216.63.

The plaintiff has appealed.

The first three items claimed by plaintiff are the piano and the two fans. The contract of sale to them reads as follows:

“Philip Bohrer sells with all legal warranties unto Mrs. Frederick H. Dix the following property: One Electric Piano, 4 Electric Fans, one 8-inch Electric Fan.”

Nothing whatever is said concerning the condition of said piano or fans.

An attempt to show the condition of those articles was made and objected to on the ground that the contract spoke for itself. The objection was maintained. The defendant contends that the sale was made of the contents of the theatre such as they were. He seems to be supported by a letter of the plaintiff dated July 4, 1921, in which plaintiff’s husband, her agent, writes to defendant:

“Of course I am working hard to make it a success, getting out heralds, etc., to advertise the place and trying to keep my patrons' together. * * * I have been putting in as much time as possible in going over the equipment at the theatre. I find it generally in very bad shape. It took me two days to go over all the chairs, putting in missing screws and bolts and changing broken seats for good ones. The piano is in very bad condition. All the valves are stopped up and it will not play at all by electricity. The motor is all right, but on account of the valves no air can come through. I am having estimates made as to the cost of repairs and the lowest figure is $85, and then it has to be taken to the shop to be fixed up. It will take all of two weeks to do the work. Another wall fan has gone on a strike with a burned armature. The one you sent away has not yet been returned. I have got back the small office fan for repairs to which I paid $5.50.' This was, what Joe said he agreed to pay.”

No claim is made in said letter by the plaintiff for defects in any of the equipments of the theatre or claim for repairs to the same. We construe this letter as evidence that plaintiff did not understand that defendant was to deliver to him any of them in good working order.

2nd. The act of sale provides for the sale of the lease from the first day of July, 1921, up to and including September 30, 1925. Under that clause the plaintiff was not entitled to possession of the property sold until July 1st. Plaintiff, however, was put in possession on June 27th, being a Monday. Defendant admits that in the same letter quoted above, he says:

“I have received a check from the advertising Co. for June service made out in your name. I am holding it for your instructions. Part of it, of course, belongs to me for the last four days of June, but we can settle that question when you come back to town.”

3rd. The above statement is also conclusive against plaintiff’s claim for the admission receipts to the theatre for Juna24th, 25th and 26th and for, the screen advertisements.

This leads us to the reconventional demand for refund of deposits. The defendant has established his claim for deposits made by him with film companies under contracts assumed by plaintiff and used by her and for the purchase of films, amounting to $216.63.

The judgment is therefore affirmed.


author: WESTERFIELD, J.

text:
    No. 10,360
    Orleans
    CHOPIN v. CITY OF NEW ORLEANS
    (November 14, 1927. Opinion and Decree.)
    (November 28, 1927. Rehearing Refused.)
    (January 20, 1928. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 574; Municipalities — Par. 357.
    The defense, made for the first time in this court in argument and in brief, by the City of New Orleans, sued for damages caused by the alleged negligence of its employee, the driver of a garbage cart, that in collecting garbage it is discharging a public function, and consequently in that capacity it is not liable for the negligence of its servants, will not be considered.
    2. Louisiana Digest — Appeal—Par. 574; Municipalities — Par. 357; Pleading— Par. 62, 71.
    The situation is not saved by the filing of an exception of no cause of action ' in this court after submission of the case.
    Appeal from Civil District Court, Div. “B.” Hon. Mark M. Boatner, Judge.
    Action by Maurice E. Chopin, individually and for use, etc., against City of New Orleans.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Benjamin W. Kernan, of New Orleans, attorney for plaintiff, appellee.
    Spearing, Miller and Mabry; F. P. Burns, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit for damages to plaintiff’s automobile, and for physical injuries suffered by his minor son as a result of a collision between plaintiff’s automobile and a garbage cart driven by an employee of the defendant, the City of New Orleans.

The defense, as presented to the trial court, consisted of a denial of fault on the part of defendant’s employee, an imputation of "negligence to plaintiff, and a plea of contributory negligence.

In this court in argument and in brief the contention was for the first time made that in collecting garbage the defendant City is discharging a governmental function, and, consequently, is not liable for personal injuries caused by its servants. After submission of the case and while under advisement in this court, defendant filed an exception of no cause of action.

The special defense made for the first time in this court, exemption upon the ground of governmental agency, is not referred to in the pleadings and was not argued below, obviously it was not considered by the trial court. The propriety of its consideration here is challenged.

In McClellan vs. Maxwell, 35 Ann. 318, it was held that the Supreme Court would only consider issues raised by the pleadings, though if the pleadings were different, a different decision might have been arrived at upon the same record.

“We have examined the proof in the record, and whether we consider the grounds of the injunction at length, as set out formally in the petition, or as shortened and narrowed by the character of the pleas urged, we are satisfied that none of these grounds are sustained by the evidence or the law applicable to them. Under different pleadings the result might have been different; but as the record presents the issues, and considering the evidence as it bears upon them, we find no reason for disturbing the judgment complained of.”

In Bonnin vs. Town of Crowley, 112 La. 1026, 36 So. 842, which was a suit by a father for damages suffered in the death of his son, the defense was made for the first time in argument in the Supreme Court, “that it was incumbent upon the plaintiff, in order to recover damages, to prove that the deceased had not left a widow and minor children, as they are entitled to preference, under Article 2315 of the Civil Code, over the surviving father and mother.” The court held that inasmuch as “this point was not presented in the pleadings, it was not argued in the court below, and it follows that, as that court did not pass upon the objection, it can scarcely be considered as being regularly before us for decision.”

In that case, however, the court observed that there was nothing in the point because the record contained the necessary proof of the absence of prior claimants under Art. 2315.

“We have again and again decided that all pleas, whether orally or in writing, should in some way be made before the court of the first instance.”

Succn. of Turgeau, 130 La. 654, 58 So. 497.

In Quaker Realty Co., Limited vs. Maier-Watt Realty Co., 134 La. 1030, 64 So. 897, it was held that a defendant pleading for the first time in an answer to an appeal that “the action of plaintiff would be in violation of the amendment of the Constitution of the United States in taking its property without due process of law” was too late and the plea would not be considered because “it is not embraced in the pleadings and was not before the trial court.”

In Shally, Tutor, vs. New Orleans Public Service, et al., 159 La. 519, 105 So. 606, the Sewerage and Water Board was not permitted to make a similar defense for the first time in the Supreme Court on application, for writ of review.

It is clear that such defenses as the one presented for the first time in this court should be presented to the lower court. It does not appear from the authorities we have quoted that an exception of no cause of action was filed either in limine or in the appellate court, as was done in this case. Does the presence of the exception filed in this court distinguish the present case? We are of the opinion that it does not.

If this defense had been made in the lower court, plaintiff may have been able to show by the administration of evidence that this doctrine invoked did not apply for reasons peculiar to the present defendant. As was said in McClellan vs. Maxwell (supra) under different pleadings a different result might have been arrived at.

In Zollicoffer vs. Briggs, 3 Rob. 236, the court refused to pass upon an exception of - res adjudicata filed for the first time in the Supreme Court, saying: “To inquire into this exception would violate a well settled principle and rule of proceeding, that this court can only exercise its jurisdiction in so far as it shall have knowledge of the matters argued or contested below.”

On the merits, there is no serious contention, and the case is with plaintiff.

The judgment appealed from is affirmed.


text:
    No. 10,452
    Orleans
    THE ITEM CO. v. COMMUNITY BURIAL SERVICE CORPORATION
    (March 26, 1928. Opinion and Decree.)
    (April 9, 1928. Rehearing Refused.)

      (Syllabus 5y the Court)

    1. Louisiana Digest — Costs and Fees — Par. 62; Appeal — Par, 512.
    When the judgment carries eight per cent interest and ten per cent attorney’s fees no greater damages will be allowed for frivolous appeal.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by the Item Co., Ltd., against Community Burial Service.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Edward P. Deutsch, of New Orleans, attorney for plaintiff, appellee.
    Van Burén Harris, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit upon a promissory note for $644.40, subject to a credit of $144.40, leaving a balance due of $500, After the filing of the suit defendant .paid on account $300.

The defendant filed no answer, and there was judgment by default against it for $500 with eight per cent per annum interest from September 20, 1925, till paid and with ten per cent attorney’s fees, subject to a credit of $300.

From that judgment the defendant has appealed.

In this court the plaintiff and appellee has prayed for damages for frivolous appeal in accordance with Article C. P. 907.

The defendant and appellant has ndt appeared in this court by brief or by argument.

When the judgment carries five per cent interest only five per cent damages will be allowed because eight per cent is the highest rate of interest allowed.

Massman vs. Lynch, No. 7454 Orleans Appeal; Mercantile Adjustment Agency vs. Palmisano, 2 La. App. 443; Citizens Discount & Investment Co. vs. Brennan, 5 La. App. 402, and authorities there quoted.

When the judgment allows eight per cent interest damages for frivolous appeal will not be allowed. Osborne & Talle vs. Powell & Co., 17 La. Ann. 169.

C. C. 1935: “The damages due for delay-in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.”

C. C. 2924: “Interest is legal or judicial or conventional. The former is fixed at five per cent and the latter cannot exceed eight per cent.”


text:
    No. 10,478
    Orleans
    PRECHTER v. KONRAD
    (December 12, 1927. Opinion and Decree.)
    (January 2, 1928. Rehearing Refused.)
    (No Syllabus)
    Appeal from Civil District Court, Div. “C.” Hon. E. K. Skinner, Judge.
    Action by William Prechter against L. E. Konrad.
    There was judgment, for defendant and plaintiff appealed.
    Judgment affirmed.
    Jos. Rosenberg, of New Orleans, attorney for plaintiff, appellant.
    Fred C. Veith, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit by a building contractor for the sum of $621.22 alleged to be due him by defendant under a verbal contract for repairs to property owned by defendant.

The defense is difficult to understand and does not impress us as serious. The claim is made that the work was to be done under what is called a “cost plus” plan, and not under a contract. The defendant testifies to this effect and says that the understanding was that the work was to cost him approximately $550.00 and a 10 per cent commission of $50.00 or $600.00. Plaintiff is demanding but $21.00 in excess of the approximate cost according to defendant.

The necessity of proving the case by more than one witness, or by one witness and corroborating circumstances because of the amount involved is fully met by the evidence.

The judgment appealed from is affirmed.


author: WEBB, J.

text:
    No. 2383
    Second Circuit
    THE MILLS-MORRIS CO. v. PEARSON
    (March 14, 1928. Opinion and Decree.)

      {Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court as to matters of fact, where clearly correct is affirmed.
    Appeal from the Eleventh Judicial District Court, Parish of Sabine. Hon. Hal A. Burgess, Judge.
    Action by The Mills-Morris Company against W. H. Pearson.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Pearson & Colvin, of Mansfield, attorneys for plaintiff, appellee.
    Boone & Boone, of Many, attorneys for defendant, appellant.
   WEBB, J.

The defendant appeals from a judgment rendered against him for a balance due upon open account, and appellant has not made any appearance m this court.

The defense set up was that certain articles shown on the account had been sold on approval, and had not been accepted, that other articles were defective, and that plaintiff’s salesman had agreed to permit' defendant to return the articles, and that others had not been ordered.

Th evidence shows that all of the articles for ' which defendant claimed a credit had been ordered by him, and while the evidence is conflicting as to the sale on approval, and the ' alleged understanding between the salesman and defendant, it does not show, however, that the salesman had any authority to agree to permit defendant to return the goods, nor does it' establish that any of the articles were defective, or not suited for the purposes for which they were designed, and the defendant has no cause to complain of the judgment, which is affirmed.


text:
    No. 10,622
    Orleans
    CENTORBI v. LUKEN’S STEEL CO. AND THADDEUS LUKE
    (November 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The decision of the trial judge is affirmed, because only questions of fact are involved and the evidence amply sustains his conclusions.
    Appeal from the Civil District Court, Div. “C.” Hon., E. K. Skinner, Judge.
    Action by Martin Centorbi against Lu-ken’s Steel Co. & Thaddeus J. Luke.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    George Piazza, of New Orleans, attorney for plaintiff, appellant.
    Milner & Porteous, of New Orleans,, attorneys for defendant, appellee.
   JONES, J.

Plaintiff alleges that about 5:50 p. m., on the 28th day of September, 1925, he was driving a Ford truck, owned by the Hubig Pie Company, down Chartres Street; that when he neared the intersection of Mandeville Street, about fifty feet .away, he began to signal with his left hand, as he intended to turn to the left into Mandeville Street; that when he reached the intersection of Mandeville Street he began to turn to his left in order to go into Mandeville Street, towards the lake; that at the time he began to turn there was no obstruction to prevent him from so doing, and no vehicle close enough to his truck to make his turning to the left unsafe; that he had nearly completed his turn and had crossed more than one-half of Chartres Street and was about to proceed into Mandeville Street when a truck owned by the Lukens Steel Company and driven by Thaddeus Luke' struck the right-hand side of his car, causing personal injuries to the extent of two thousand, eight hundred two and 50-100 ($2,802.50) dollars; that at the time of the accident, and immediately prior thereto, defendant’s truck was traveling in excess of twenty miles per hour, in violation of City Ordinance No. 7490; that the brakes on defendant’s truck were defective and unsafe; that defendant’s truck was at least one hundred and fifty feet from the intersection when plaintiff attempted to make the, turn, traveling less than five miles per hour.' Plaintiff item- ■ izes his damages as follows:

Loss of salary, 7 weeks at $32.50 $227.50
Doctor and medicine bills ________________ 75.00
Physical pain and mental anguish 2500.00
Total _____________________________________________________$2802.50

The Indemnity Insurance Company of North America filed a petition of intervention and third opposition,’ praying for a judgment in its favor for one hundred seventy-four and 40-100 dollars ($174.40), plus interest, etc., alleging that it carried workmen’s compensation insurance covering the Samuel Hubig Company against the hazard of compensation claims. The allegations in the petition of intervention are substantially the same as those of plaintiff’s petition.

The defendants answered, denying any negligence and pleading that plaintiff drove directly in the path of Thaddeus Luke, who was driving the Luken’s Steel Company’s truck up Chartres Street, in a legal manner, close to the right-hand curb, that petitioner, without any warning, attempted to turn into Mandeville Street, and by his own negligence in failing to give warning of his intention to turn, and in crossing the path of the truck driven by Thaddeus Luke, caused the accident in question; that at the time of the accident plaintiff was looking in the opposite direction from which your respondent approached, that plaintiff was making a left-hand turn, and did not comply with the city ordinance regulating turning from one street into another. Respondents denied that the brakes were defective and that speed was excessive and plead that there was a governor on the truck. Respondents alleged in the alternative, contributory negligence.

The learned trial Judge gave a decision, rejecting plaintiff’s demand and dismissing the petition of intervention.

Plaintiff has appealed to this court.

Only questions of fact are involved and a careful reading of the record convinces us that the conclusion of the trial Judge is amply sustained.

Plaintiff swears that he held out his left hand for seventy-five feet before he reached the intersection of Chartres and Mandeville, but the traffic ordinance of the City prescribes that signal as a warning for vehicles in the rear and we know of no law that makes such a' signal a warning to cars approaching on the next block. To prove his case, plaintiff alleged and tried to prove excessive speed of the truck, but in this essential he entirely failed.

The evidence shows that defendant’s truck was equipped with a governor, which prevented a speed in excess of fifteen miles per hour and that the brakes had been inspected only a week before and were in good order.

Plaintiff was making a left-hand turn and in doing so should have exercised the greater care.

For above reasons the judgment is affirmed.


text:
    No. 2392
    Second Circuit
    HARVEY v. MASSACHUSETTS PROTECTIVE ASSN
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Insurance—Par. 181; Evidence — Par. 352.
    In an action on a policy of insurance, and the defense is that the policy had lapsed for want of payment of premium on or before maturity, the uncorroborated testimony of the insured that he had mailed a check for the premium to the insurer in time for it to reach the insurer, in due course of mail, on or before the day it was due, is not sufficient to overcome the testimony of two employees of the insurer that the check arrived more than thirty days after the premium was due in an envelope, introduced in evidence, bearing a postmark showing that it had been deposited in the mail more than thirty days after the date on which plaintiff testified he mailed it.
    Appeal from the Tenth Judicial District Court, Parish of Red River. Hon. John F. Stephens, Judge.
    Action by James A. Harvey against the Massachusetts Protective Association, Incorporated.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and suit dismissed.
    S. M. Cagle, of Coushatta, attorney for plaintiff, appellee.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit upon a policy of insurance. The defense is that the policy had lapsed for want of payment of premium. On these issues the case was tried and there was judgment 'for plaintiff and defendant appealed.

OPINION

On November 15, 1923, defendant' issued to plaintiff a policy of insurance whereby it agreed, in consideration of the sum of $21.50 then paid and of the further sum of $16.50 to be paid on or before the first day of the months of March, June, September and December of each year, to pay to him a specific sum of money weekly during a given space of time, in the event of his disability, from bodily injury accidentally sustained, to perform his regular business duties.

Plaintif alleges that on March 6, 1924, an ax fell upon his right hand and wrist, disabling him from performing his regular business duties. And he alleged that he had duly paid to defendant the premium due March 1, 1924, and that the. policy was in effect at the time of the accident. He prayed for judgment in accordance with the terms of the policy.

Defendant denied liability and alleged that the policy provided:

“M. The premium on this policy shall be sixteen and 50-100 dollars per quarter, payable in advance on or before the first day of March, June, September and December of each year. When the insured shall pass age fifty, the premium thertafter payable shall be twenty-one and 50-100 dollars per quarter. This policy is issued in consideration of the statements made in the application, a copy of which is attached hereto and hereby made a part of this contract, and of the policy fee of sixteen and 50-100 dollars, which will carry the insurance hereunder until the first quarterly premium date as above following the issuance hereof, and may be continued from period to period throughout its term at the option of the insured by the payment of the premium in advance. Premiums may be paid annually, semi-annually or quarterly on any premium date as the insured may elect.”
“3. If default be made in the payment of the agreed premium for this policy, the subsequent acceptance of a premium by the Association or by any of its duly authorized agents shall reinstate the policy but only to cover accidental injury thereafter sustained and such sickness as may begin more than ten days after the date of such acceptance.”

And—

“That the premium due March 1st, 1924, was not paid until long past due; that this payment was made by check, which check was received and accepted by defendant on April 12th, 1924.”
“That the policy of plaintiff lapsed on February 29th, 1924, and was not reinstated until April 12th, 1924, and that defendant is not responsible for any, accident or injuries that the said plaintiff may have sustained between February 29th, 1924, and April 12th, 1924.”

Under the issues presented by the pleadings, only one question is before us for decision, namely, whether plaintiff paid the premium of $16.50 due on or before March 1st, 1924, on or before that date.

Plaintiff swore positively that he mailed to defendant at Hall Summit, Louisiana, on February 25, 1924, his check, dated that day, for the sum of $16.50, signed by him, drawn on the Bank of Hall Summit, Louisiana, in favor of defendant, in payment of the premium on the policy due March 1, 1924.

But his testimony is not corroborated in any way.

The check itself was introduced in evidence and shows that it was paid by the Bank of Hall Summit, Louisiana, on April 21, 1924.

Two employees of the defendant testified that the check was received by it at Worcester, Massachusetts, on April 12, 1924, in an envelope, which they attach to and make part of their testimony, and which envelope bears the cancellation stamp of the post office at Hall Summit, Louisiana, of date April, 1924, showing that the envelope in which the check was contained was not deposited in the post office until some time in the month of April, 1924.

A careful reading and study of the record convinces us that the check in payment of the premium due March 1, 924, did not reach defendant until April 12, 1924, and that the policy had then lapsed for non-payment of the premium. The accident to plaintiff occurred on March 6, 1924, but the policy was not in force then, and its reinstatement by the receipt and acceptance by defendant of the premium on April 12, 1924, did not render defendant liable to plaintiff for anything happening to plaintiff between the date of the lapse and the date of reinstatement.

The District Judge took a different view of the facts, and while the opinion of the trial judge is entitled to and is accorded great weight by an appellate court, in this case we are unable to agree with our learned brother of the court below and must reverse the judgment appealed from.

' For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and that plaintiff’s demands be rejected and his suit dismissed at his cost in both courts.


author: ODOM, J.

text:
    No. 2992
    Second Circuit
    ROBINSON ET AL v. YOUNSE LBR. CO. ET AL
    (December 21, 1927. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 7, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Master and Servant —Par. 156.
    Where A and B pool their interests to enter a joint enterprise, A going into the woods, felling the timber and hauling it to the mill, while B had charge of the mill, they are both liable in solido under the provisions of the Workmen’s Compensation Act No. 20 of 1914 and amendments.
    2. Louisiana Digest — Master and Servant —Par. 154, 156.
    .he fact that the remuneration paid an employee was dependent upon the amount of timber cut, the employee having the right to quit when he choose, instead of a stipulated wage does not make him an independent contractor under the Workmen’s Compensation Act No. 20 of 1914 and amendments.
    3. Louisiana Digest — Master and Servant —Par. 154.
    The- Workmen’s Compensation Act No. 20 of 1914 and amendments should be given a liberal interpretation in favor of the laborer. Therefore, the courts will not allow an employer to escalpe the provisions of the act by placing a suppoosed independent contractor over his laborers.
    4. Louisiana Digest — Master and Servant —Par. 160.
    Under Section 8 of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act No. 38 of 1924, the widow and two minors of deceased are entitled to compensation of sixty-five per cent of the weekly wage for a period of three hundred weeks, payable weekly with five per cent interest from date due.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action by Mrs. Lola Robinson et al against J. R. Younse Lumber Co. et al.
    There was judgment for plaintiffs and defendants appealed.
    Judgment amended and affirmed.
    E. E. Walker, of Ruston, attorney for plaintiffs, appellees.

      J. M. Munholland, of Monroe, attorney for defendants, appellants.
   ODOM, J.

The plaintiff is the surviving widow of J. Mack Robinson who was employed as a log cutter and who while at work in the woods cutting logs a limb fell on .his head and killed him.

Plaintiff brings this suit under Act No. 20 of 1914 and amendment for compensation for the joint benefit of herself and her two minor children, issue of her marriage with J. Mack Robinson, all having been dependent upon him for support.

She asks judgment against the J. R. Younse Lumber Company and against J. R. and T. ‘ R. Younse in solido upon the theory that the J. R. Younse Lumber Company is a commercial ¡partnership composed of said individuals, and in the alternative, if the court should hold that there is no commercial partnership, then in that event she asks that said J. R. and T. R. Younse be condemned in solido for the full amount which she claims.

Defendants J. R. and T. R. Younse deny that any commercial partnership existed between them, and while it is conceded that J. R. Younse was conducting a saw mill business under the name of J. R. Younse Lumber Company and that each was in a way connected with that business, yet they contend there was in fact no contractural relationship existing between the two oand that the mill was owned and operated and the business was conducted by J. R. Younse individually under the trade name of J. R. Younse Lumber Company.

Under the view which we take of the issues involved in this litigation, it is not necessary to discuss or determine the question whether there was or was not a commercial partnership existing between the two Messrs. Younse. Our conclusion is that they are bound jointly and in solido to plaintiff for the amount of compensation which she claims, regardless of whether they were commercial partners or not, under the facts disclosed by the record.

The pertinent facts are that J. R. Younse owned a saw mill situated in Jackson Parish. His brother, T. R. Younse, owned no interest in the mill and its equipment. J. R. Younse was engaged in the saw mill business. There was a tract of timbered land containing 120 acres located within a short distance of his mill which was for sale. Through some arrangement, not definitely disclosed, J. R. Younse got the Monroe Grocery Company, Ltd., to purchase the land. He acted as said company’s agent in the purchase and for the purchase price he drew a draft on said company in favor of the vendors and attached it to the deed, as we infer, which draft was handled by a bank in Jonesboro.

While the deed to the land was taken in the name of the Monroe Grocery Company, Ltd., and it furnished the cash with which to pay the purchase price, the circumstances prior and subsequent to the transaction indicate very strongly that the property was purchased for J. R. Younse under some arrangement by which Younse should cut the timber and pay for it, as cut. But whether the arrangement was made prior or subsequent to the_ purchase of the land, J. R. Younse says he did purchase or secure the timber from the grocery company to be paid for as cut. He testified that he made the trade for the timber or secured it and that he was to pay for it as cut. His brother, T. R. Younse, had nothing whatever to do with the negotiations, and while he subsequently logged the timber, as will be detailed later, he testified that he did not know while cutting whose timber it was.

So that the situation with reference to J. R. Younse was that he owned a saw mill, was in the saw mill business, needed timber for the' operation of the mill and secured it from the Monroe Grocery Company, Ltd.

In order that the timber might he manufactured into lumber, the timber, of course, had to he cut and hauled to the mill. His brother, T. R. Younse, owned wagons, teams and trucks, all his individual property. J. R. Younse, the owner of the mill and who' had procured the timber, and T. R. Younse, the owner of the logging outfit, entered into a contract by which T. R. Younse was to log the mill; he was to have the timber felled, cut into logs, hauled to the mill and placed on skidways, all at his own. expense. In addition to the expense of logging the mill, he was to be charged $1.00 for each thousand feet of timber cut, to be applied on the purchase price, and to he paid the Monroe Grocery Company, Ltd., and $1.00 for each thousand feet of lumber manufactured for hauling it to a shipping point. All this timber was to be delivered by T. R. Younse at J. R. Younse’s mill to he there manufactured into lumber and sold*.

T. R. Younse’s remuneration for logging the mill was one-half the proceeds of all lumber sold, the other one-half to go to J. R. Younse ' for manufacturing it. It was agred, however, that ift the lumber was not sold it should be divided half and half between the two.

J. R. Younse, the o.wner of the mill, operated the mill personally and paid all expenses. He sold the lumber and kept account of the proceeds. They had settlements at intervals and, as stated, divided the proceeds equally between them.

J. R. Younse, the owner of the mill, seeks to escape liability for the death of a log cutter on the ground that he had nothing to do with the cutting of the logs or the logging of the mill; that his brother, T. R. Younse, had charge of that end of the business; that T. R. Younse was an independent contractor, and that plaintiff’s right of action, if any, at all, was against T. R. Younse and not against him.

We are not impressed with that defense.

J. R.' Younse owned the mill outfit and procured the timber. T. R. Younse owned i logging outfit. The mill was useless without logs, and the logging outfit was useless without logs to haul. These parties, as we see it, pooled their interests and entered into a common, joint enterprise, one branch of which was to go into the woods, fell the timber, saw t into logs and haul them to the mill, and while T. R. Younse was to have charge of the logging, yet J. R. Younse was as vitally interested in getting the logs to the mill as was T. R. Younse. The logging was not the separate enterprise of T. R. Younse but a joint enterprise of both.

So those who were employed to cut the logs in the woods were emplyees of both T. R. and J. R. Younse and not of one of them.

By no stretch can it be said that T. R. Younse was an independent contractor. He did not contract a specified piece of work for a specified price. He was to have the logs cut and hauled, that was his part of the logging contract', but there was no agreement that he should receive any specified amount. His remuneration depended first on whether the lumber was sold and if sold upon the price; he had a joint interest in the manufactured product, and, if sold, in the proceeds.

It is true he controlled the cutting and hauling of the logs. But that was his part of the business. It is usual and, indeed, necessary in the conduct of an enterprise involving several branches, for the different individuals interested to ■ have charge of the separate branches; as in a mercantile' business, for instance, one partner may be the buyer, another a salesman, and another a bookkeeper — each controlling his separate branch.

The logging business in this case being a joint enterprise of J. R. and T. R. Younse, they are jointly and in solido bound for the compensation due for the death of one of their employees.

T. R. Younse, in carrying out his part of the logging business, employed a man named Sewell Lee to have charge of the cutting of the logs. Lee was to employ men to cut the trees down and saw them into logs. He was paid $1.25 for each thousand feet cut, less the price of cutting which was $1.00. He had charge of the woods, laid the land off in strips, showed the men where to cut, furnished and sharpened the axes and saws, and scaled the logs. He kept a scale of the logs cut by each cutter and turned it in to T. R. Younse who paid the cutters. Mr. Yountse testified that he always paid the cutters, but said he paid them for Mr. Lee and charged the amounts back to him. Lee was not employed to cut any specific piece or amount of timber but only what was necessary to log the mill. His remuneration depended upon the amount of timber cut, much or little. If none was cut he got nothing. He was at liberty to quit when he chose, which implies that he was subject to discharge ' without notice or cause. The fact that his compensation was made to depend on the amount of timber cut -instead of a stipulated wage or salary makes no difference in a case like this.

Heine vs. Hill, Harris & Co., 2 La. App. 384.

Dick vs. Gravel Logging Co., 152 La. 993, 93 So. 198, and cases therein cited with approval at the bottom of page 998.

Mr. Lee was the agent and employee of these defendants and not an independent contractor. He represented them in their operations in the general scheme and enterprise of logging the mill. It is true that he employed the log cutters and directed them, but he would have done the same if he had been employed by them as a woods foreman at a stipulated salary.

In cases of this kind, we must keep in mind always the purpose of the Work-' men’s Compensation Act and its specific provision that it shall be given a liberal interpretation in favor of the laborer.

If those engaged in the saw mill business, which includes logging, were permitted to put an impecunious man in charge of the log cutters and base his compensation upon the amount of logs cut instead of paying him a salary and when sued for compensation plead that the man in charge was an independent contractor, the laborers in the woods would be entirely cut off and the purpose of the law would be thwarted.

If courts should permit those engaged in industrial enterprises to escape liability in this way, the door would be left wide open to all kinds of subterfuge to escape liability and tbe act would be a dead letter in the books.

We do not mean to hold and do not hold that a man cannot make an independent contract to cut or haul logs, for we think he can. But in this case it must be borne in mind that he had not one dollar invested. When he wanted saws or axes or oil for the cutters, he sent to Younse for .them and they were merely charged to him and the price deducted from what was coming to him. What was coming to the men in the woods was paid by Younse and likewise charged to Lee. In effect, Younse furnished everything, so that all Lee did was to hire the men, superintend the work and scale the logs.

Now, as to the last defense. Defendants contend that J. Mack Robinson, the deceased, was himself an independent contractor and not an employe, and therefore plaintiff cannot recover.

Robinson was a log cutter employed by Sewell Lee to cut logs in the woods. The men worked in pairs, Robinson working with Robert Shows. He and Shows got $1.00 per thousand, which they divided equally between them. Lee laid off the land in strips and assigned a strip to each pair; they were shown where to cut, required to cut all the timber on their respective strips and to cut them clean. The men went to work when and worked as they pleased, so far as hours were concerned. The compensation depended on the amount of logs cut. They were given no specific instructions as to the length of the logs, but were instructed to cut according to the general rules, which all log cutters understood.

Mr. Lee testified that if the men had cut the logs in improper lengths he would have interfered and had them cut as he wanted them cut; that if Robinson and Shows had left the strip and gone to another he would have ordered them back and if they had refused he would have discharged them.

They were therefore under his direction and control and were common laborers and not independent contractors.

Counsel for defendants cites and relies upon the case of Hilton vs. Tall Timber Lumber Co., 158 La. 186, 86 So. 729, in support of his contentions. But that case is not’ controlling. It has never been followed but has been, in effect at least, twice overruled.

Bell vs. Albert Hanson Lumber Co., 151 La. 824, 92 So. 350; Dick vs. Gravel Logging Co., 152 La. 993, 93 So. 192.

The Disrict Judge found from the evidence that plaintiff’s husband was earning at the time of his death $15.00 per week, which we think is correct, and he awarded . judgment for 60 per cent of that amount, or $2700.00, to be paid in weekly payments of $9.00, for 300 weeks.

Under Section 8 of Act No. 38 of 1924, amending the original act, if the deceased children, all dependents, they receive 65 leaves a widow and two or more minor per cent of wages “for a period of three hundred weeks.” The deceased in this case left a widow and two minors, all dependent. They are entitled to $9.75 ptr week for 300 weeks, payable weekly, with interest.

The court below also allowed $284.25 for medical, surgical, hospital and burial expenses, which was all it found proved.

We find it necessary to slightly amend the judgment.

For the reasons assigned, it is ordered, adjudged and decreed that the plaintiff, Mrs. Lola Robins'on, for the joint benefit of herself and her two minor children, Winnie V. and Jesse Robinson, have judgment against and recover from J. R. Younse and T. R. Younse individually and in solido comptnsation in the sum of nine and 75-100 ($9.75) dollars per week for a period of three hundred weeks, with 5 per cent interest on each weekly installment frdm the due date until paid, the payments to begin July 24, 1926; and for the further sum of two hundred eight-four and 25-100 dollars for medical, surgical, hospital and burial expenses, with 5 per cent interest from date of judgment until paid, and all costs of this suit.