author: REYNOLDS, J. CARVER, J.

text:
    No. 1831
    Second Circuit Appeal
    WILLIAM E. BROWN v. UNION INDEMNITY COMPANY
    (April 11, 1925, Opinion and Decree)
    (May 11, 1925. On a writ of certiorari to the Supreme Court the judgment of the Court of Appeal was reversed and the judgment of the District Court was reinstated.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Insurance—Par. 121.
    A clause in an insurance policy which protects the insured, an automobile owner, from accidents “caused solely by accidental collision with another object,” protects the insured automobile owner from loss when his car tips over and is damaged when coming in contact with the ground or the top of the road.
    2. Louisiana Digest — Insurance—Par. 33.
    An insurance policy which contains language reasonably susceptible of different interpretations will be given the construction most favorable to the assured.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P Mills, Judge.
    Action by plaintiff to recover damage caused to his automobile that turned over striking the ground, thereby damaging the top, etc., under a policy of insurance guar anteeing to protect the insured from ail damage caused to his car solely “by accidental collision with another object.”
    Defendant filed an exception of no cause of action. This exception was sustained, and plaintiff has appealed:
    Reversed and remanded.
    Wallace, Lyons & Peters, of Shreveport, attorneys for plaintiff, appellant.
    J. C. Henriques, of New Orleans, and Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

In this case the question presented for decision is, does the following stipulation in an insurance policy, “caused solely by accidental collision with' another object,” protect the insured from loss when his car tips over and is damaged by coming in contact with the ground or top of the road?

This question, so far as we know, has not been decided by the Supreme Court of this state.

The question was, however, decided in the negative in July, 1921, in the case of Moblan vs. Western Indemnity Co., 200 Pac. 750, by the Supreme Court of California, and in March, 1921, by the Supreme Court of Wisconsin in the case of J. C. Bell vs. American Insurance Co., 181 Northwestern 733.

Each of these cases was well considered and many authorities cited in their support. They have frequently been referred to as stare decisis of the doctrine that the tipping over and striking the ground by an automobile did not constitute an “accidental collision.”

On June 21, 1924, in the case of Great American Mut. Indemnity Co. vs. Jones, the Supreme Court of Ohio (144 Northwestern 596), and on June 25, 1924, the Appellate Court of Indiana in the case of Fireman’s Ins. Co. of Newark, N. J., vs. Savery (143 Northeastern 612), the above question was decided in the affirmative.

In the first of the last two above mentioned cases, Great American Mut. Indemnity Co. vs. Jones, the first two mentioned cases, Moblad vs. Western Indemnity Co. and Bell vs. American Insurance Co., were fully reviewed.

In view of the fact that the California Court and the Wisconsin Court have held that the upsetting of an automobile where the top of the car strikes the ground is not an “accidental collision,” and that the Ohio Court and the Indiana Court have held to the contrary, we have reached the conclusion that the term, “accidental collision,” is ambiguous.

At the time that the policy of insurance in this case was written, May 5, 1921, numerous cases were then in the law books, from which it was evident that the meaning of the term, “accidental collision,” as used in insurance policies was not weldefined.

In cases similar to this it has been held that the .insured is fully protected.

The cases are:

Freiberger vs. Globe Indemnity Co., 205 App. Div. 116, 119 N. Y. Supp. 310.

Young vs. New Jersey Ins. Co. (D. C.) 286 Fed. 492.

Interstate Casualty Co. vs. Stewart, 208 Ala. 377 (94 Sou. 345).

Universal Service Co. vs. American Ins. Co., 213 Mich. 523.

Rouse vs. St. Paul, etc., Co., 203 Mo. App. 603.

Lepman vs. Employers, etc., Corp., 170 Ill. App. 379.

Harris vs. American Casualty Co., 83 N. J. Law 641.

Hardenburg vs. Employers’ Casualty Co., 78 Misc. Rep. 105.

In the following cases the reverse was held. Continental Casualty Co. vs. Paul, 94 Southern 614.

Southern Casualty Co. vs. Johnson, 24 Ariz. 221.

Moblad vs. Western Indemnity Co., 63 Cal. App. 683.

Bell vs. American Ins. Co., 173 Wisc. 533.

Fox vs. Interstate Exchange, 195 Northwestern 842.

Lester V. Alexander vs. Home Ins. Co., Syllabus No. 1451, Sup. Court of Hawaii.

Royal Hawaiian Sales Co. vs. Home Ins. Co., Syllabus No. 1449, Sup. Court of Hawaii.

Wettengell vs. U. S. “Lloyds,” 157 Wisc. 433.

Gibson vs. Georgia Life Ins. Co., 17 Ga. App. 43.

In view of these conflicting authorities we have reached the opinion that, under the well-settled doctrine, “an insurance policy which contains language reasonably susceptible of different interpretations will be given the construction most favorable to the assured,” the plaintiff’s petition sets forth a cause of action.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed and that the exception of no cause of action be overruled.

It is further ordered, adjudged and decreed that this case be remanded to the lower court to be proceeded with according to law. Costs of the appeal to be paid by appellee. The other costs to await the final decision in this case.

ON APPLICATION FOR REHEARING

CARVER, J.

Our original opinion stated that at the time the policy herein dealt with was issued, namely, May 5, 1921, numerous cases were in the law books from which it was evident that the meaning of the term, “accidental collision,” as used in insurance policies, was not well defined. The organ of the court then gave two lists of cases involving policies insuring against damage by “accidental collision,” one where the insurers were held liable and one where they were held not liable. Some of these cases were decided before and some after May 5, 1921. The opinion concluded by applying the construction most favorable to the insured because under the conflicting authorities we regarded the policy as ambiguous on the question at issue.

In their able brief for rehearing counsel for defendant argue that of all the cases cited against their view none are in point except two and one of these was reversed by the United States Circuit Court of Appeals. On the other hand, they say that the overwhelming weight of authority sustains their view.

It is true that the case of Young vs. New Jersey Insurance Company, 284 Fed. 492, decided by the United States District Court in 1922, was reversed in 1923 by the United States Circuit Court of Appeals, 290 Fed. 155.

These decisions were both rendered after the policy here in question was issued.

We think they are mistaken, though, in supposing that none of the other cited cases are in point. He seeks to differentiate them by pointing out that the collisions involved in them were not collisions with the top of the road but collisions with objects off the road.

The cases referred to are:

Firemen’s Insurance Co. vs. Savery, Supreme Court of Indiana, (143 N. W. 612), decided in 1924, in which the car skidded, left the road and struck the bottom of a ditch.

Freiburger vs. Globe Indemnity Co., 205 App. Div. 116, (119 N. Y. Supp. 310), which, he says, he has not found in Shreveport. We have not found it either. In plaintiff’s brief it is stated that the holding was that precipitation of an automobile to the pit of an elevator shaft caused by the breaking of the cable with which it was being lowered, was an “accidental collision with an object” within the meaning of the policy.

Interstate Casualty Co. vs. Stewart, 208 Ala. 377, (94 Sou. 345), decided, November 2, 1922, where the driver lost control of his car, which ran down a hill and off the road and struck an embankment ten feet away from the road.

Universal Service Co. vs. American Insurance Co., 213 Mich. 523, (181 N. W. 1007), (14 A. R. L. 183), decided, March 30, 1920, in which the loaded scoop of a steam, shovel which was engaged in unloading an auto truck fell on it causing damage. Defendant claimed this was not a collision as ordinarly understood and intended by the parties, but the court applied the meaning given by lexicographers, quoting from various dictionaries.

Rouse vs. St. Paul, 203 Mo. App. (219 S. W. 688), decided in 1920, where a car, in rounding a curve, skidded off the road and the car turned over and rolled in a ditch.

Lipman vs. Employers, 170 Ill. App. 379, decided in 1912, which, he says, is not available in Shreveport. We have not found this case either, but in the Universal Service case, 181 N. W. 1007, 14 A. L. R. 183, the court says it is in consonance with the Rouse case and opposed to the Wettengell case hereinafter mentioned.

Hardenburg vs. Employers, 78 Misc. 105, 138 N. Y. Supp. 662, decided in 1912. This case is cited in the notes to 14 A. L. R. 191, as holding that where it was conceded that the accident occurred at a point which was not a point of travel but was at a place adjacent to and adjoining the point of travel or at the ■ edge of the shoulder of the roadbed, it was held that the accident was not suffered in the roadbed, that word being. held to mean “in common roads the whole material laid in place and ready for travel,” or “the material part of the road.” The policy in this case excluded liability for damage caused by striking the “roadbed.” This case is stated in a note to 14 A. L. R. 191, to have been reversed on appeal in 1913, 80 Misc. 522, 141 N. Y. Supp. 502, on the ground that the burden rested on plaintiff to prove that the damage was the result of collision with some object and that no evidence was given of the existence of any object with which the car did or could come into collision.

Harris vs. American Casualty Co., 83 N J. Law, 641, 44 L. R. A., N. S., 70, de cided in 1912. The policy in this cas excluded liability for damage resulting from collision due wholly or in part to upset. In this case the car ran off a highway bridge, was precipitated into the water below and landed at the bottom of the stream upside down. The court quoted the dictionary meaning of “collision” and “upset” and held that the water and earth beneath it were objects and that striking them was a collision, although they were horizontal and not vertical. The policy excluded damage resulting from collision due wholly or in part to “upset,” but the court held the insurer liable on the ground that the collision was not due to the upset but the upset was due to the collision.

We think it clear that all these cases are in point on the question of what is á collision.

Whatever would be a collision when occurring off the road would equally be a collision when occurring on it. So these cases, so far as they hold that a scoop falling on an automobile, an automobile dropping to the bottom of an elevator pit or striking the bottom of a ditch or the water and bottom of a stream or an embankment, are collisions, are equally in point on that question.

Where liability was made to turn on the question whether the damage was caused by a collision with the road or with some thing off of it, this was not because that consideration affected the question of col lision but because it affected the question of liability by reason of the policy' con taining a clause excluding. ail liability foi damage caused by contact with the road

Likewise, where liability was made to turn on the question whether the collision caused the upset or the upset the collision, this was because the question of liability was affected by reason of a collision clause excluding liability where the upset caused the collision.

We cannot agree with counsel either in his opinion that all the cases he cites where the insurers were held exempt from liability are in point in this case. .

Those cases áre:

Continental Casualty Co. vs. Paul, 94 Sou. 614, decided in-.

Southern Casualty Co. vs. Johnson, 24 Ariz. 221, 207 Pac. 987, decided in --.

Moblad vs. Western Indemnity Co., 53 Cali. App. 683, 200 Pac. 750, decided in July, 1921.

Bell vs. American Insurance Co., 173 Wisc. 583, 181 N. W. 783, 14 A. L. R. 179, decided in March, 1921.

Fox vs. Interstate Exchange, 195 N. W. 842, decided in November, 1923.

Alexander vs. Home Ins. Co., Syllabus No. 1451, Hawaii Supreme Court.

Royal Hawaiian Sales Co. vs. Home Insurance Co., Syllabus No. 1449, Hawaii Supreme Court.

Wettongell vs. U. S. “Lloyds,” 157 Wis. 453, 147 N. W. 360, decided in 1914.

Gibson vs. Georgia Life Ins. Co., 17 Geo. App. 43, decided in -.

Great Eastern Gas Co. vs. Salinsky, Tenn. 1929, 95 Sou.

In the Wettengel case, the policy only covered collision with “automobiles, vehicles or objects.” The injured car ran off the road and down the bank of a river. The court applied the doctrine of ejusdem generis, holding that collision to entail liability must be with some object like an automobile or vehicle. It did not hold that there was any collision.

The Bell case overruled this case in holding that the rule of ejusdem generis should apply.

The Gibson case (as we find it noted in 14 A. L. R. 191) based its holding of non-liability on the fact that the collision was with the curbstone along a street, which the court held was “a portion of the roadbed” and “an impediment consequent on the condition thereof,” and the policy contained a clause excluding liability for “damage caused by striking any portion of the roadbed or any impediment consequent on the condition thereof.”

We have not read Southern Casualty Co. vs. Johnson, but the Circuit Court of Appeals in the Young case says it holds that where the driver in order to avoid a collision with an automobile coming from behind swerved and ran into an embankment alongside the road and upset, there was liability because the upset' was the result of the collision with the embankment.

We could not find the case of Great Eastern Casualty Co. vs. Solinsky in 95 Southern, and we know of no one in Shreveport who has the Hawaii Supreme Court records.

The Continental Casualty Co. vs. Paul, 95 Sou. 814, decided in 1923, the Alabama Supreme Court held that proof showing that the owner had left his car standing on an incline on a highway with rocks under the. rear wheels and brakes fastened and the car was found in a damaged condition at the foot of an incline or cliff upset where it was running was insufficient to justify submitting to the jury the question of loss by collision. The court thought that if the brakes failed to holü and the car of its own momentum and with out the application of exterior force but simply in obedience to gravity rolled down to the bottom of the embankment, this would not be a collision. It does not over rule the Stewart case but differentiates it

But in St. Paul, etc., Co. vs. American Compensation Co., 100 Sou. 904, decided in 1924, the same court, in a well-considered opinion, held that there was liability where a car standing in front of plaintiff’s office on the crest of a hill, the rear wheels on level ground and the fore wheels on sloping ground, with the car headed down hill, the car having stood there with brakes on over night and in the morning while a custodian was sweeping it out the car started, ran down the hill some ninety feet and off a precipice some twenty-five or thirty feet, landing head on upon a rock bottom of an excavation. This case was extremely well considered. The minority opinion at the first hearing was' finally adopted as the opinion of the majority on rehearing. One of the judges dissents and criticises the Missouri and New Jersey decisions holding that striking the earth or water was collision with an object. This decision points out that the Young case, 290 Federal, was based on the fact that the injury did not result directly from the collision but that the breaking of the axle was the proximate cause, and says this principle enters into other decisions where a car is overturned or wheel smashed from strain.

The Bell, Fox, Moblad and Young case, are more in point. The Bell case, though, was the only one of these decided before the policy here in question was issued. That case holds that where one side of a car gradually settled into the ground and the car toppled over, striking the ground, such casualty was not a collision as the word is commonly used. The court concedes that if the broad meaning given by lexicographers was adopted a holding that such impact with the earth would constitute a collision would be logical. It says:

“The incident causing the damage to the automobile here in question is spoken of in common parlance as an ‘upset’ or ‘tipover. If it were the purpose to insure against damage resulting from such an incident, why should not such words or words of similar import have been used? We cannot presume that the parties to the contract intended that an upset should be construed as a collision in the absence of a closer association of the two incidents in popular understanding.”

The Wisconsin Supreme Court held in Fox vs. Interstate Exchange, a car while being driven on a recently regraveled highway skidded and was overturned, violently striking the embankment at the side of the roadway. The court held that striking against this embankment was not a collision within the terms of the policy. It does not say why, but says it is of the opinion that the case is, ruled by its decision in the Bell case.

In Moblad vs. Western Indemnity Co., 53 Cali. App. 583, 200 Pacific 750, decided in July, 1921, the California Supreme Court held that where the edge of a roadway on which an automobile had been swerved to avoid collision, gave way, causing, the automobile to overturn and roll down a mountain side, the damage to the automobile from contact with the ground and objects thereon was not caused solely by collision with another object within the meaning of the automobile policy. The court does not allude to the Harris or any other case except the Bell case, the Stuht case hereinafter mentioned, and the Wettongel case. It says:

“In the instant case the damage to plaintiff’s car was caused proximately by its turning over on the edge of the road. Its subsequent revolutions and consequent damage were but the operation of physical laws set in motion when it turned over on the edge of the road. The proximate and only cause of the accident was not a collision but an upsetting of the automobile.”

In Young vs. New Jersey Insurance Co., where the United States District Court had held there was liability, the Circuit Court of Appeals holds there was no liability. In this case it was admitted that the front axle broke and let the car down as it was being driven along the highway about thirty miles an hour, crossing a coulee. The broken axle and frame plowed into the earth with great force and violence which caused the car to pivot and overturn'. The damage was caused by the resistance and impact with which the end of the broken axle and front end of the car met when they came in contact with the earth. The court cites the Bell, Universal Service, Moblad, Southern Casualty Co. vs. Johnson and the Harris cases, and says that the reasoning of the Bell case appeals to it more forcibly than that of the Universal Service case. It says:

“In other words, we think the language of the contract when accorded the ordinary and usual meaning that should govern does not extend to the incident under consideration where the proximate cause was the breaking of the defective axle and damage was not ‘by being in accidental collision with an object.’ ”

Besides the above cases, the following have more or less bearing on the question herein:

Wetherill vs. Williamsburg, etc., Co., 60 Penn. Sup. Ct. 37, decided in 1915, noted in 14 A. L. R. 189, as holding that where the injured car was taken thirty or thirty-five feet inside of a building, stopped and subsequently backed into an open area or elevator shaft, by reason of which it fell *to the ground floor, this was a collision within the meaning of the policy.

Plaintiff’s .counsel cite Holstein vs. Pacific Fire Ins. Co., 203 N. C. 362, as holding, where driving along a narrow country road the driver of a car, in order to avoid striking another car approaching from the opposite direction, swerved to the outer edge of the roadway and his car left the road, fell down the embankment, struck a rock and turned over. We have not examined this decision but the alleged holding is consistent with the other cases.

Hanvey vs. Geo. Life Ins. Co., 141 Ga. 389, 81 S. R. 206, decided in 1914. The policy in this case excluded liability for damage caused by striking “any portion of roadbed or any impediment consequent upon the condition thereof.” The court held that it could not say as a matter of law that the accident fell within the exclusion where the petition alleged that the car left the road, ran into a ditch on the side of it and into the bank and turned over.

Rouse vs. St. Paul P. & M. Ins. Co., 203 Mo. App. 603, 219 S. W. 688. On the left of the road was an embankment and ditch four to six feet deep. Just before reaching this part of the road was a curve in the road which at this point is narrow, and at the time of the accident was muddy and sloppy. While trying to run the curve, the wheels skidded off the road and the car turned over and rolled into the ditch. The policy excluded liability for damage “by striking any part of the roadbed” and the insurance covered only damage from “collision with automobiles, vehicles or objects.” The court rejected the rule ejusdem generis applied in the Wetten gell case and held the insurer liable.

In Hoosier Mutual Auto Ins. Co. vs Lanan, Indiana App., 137 N. E. 626, decided in 1923, the note in 26 A. L. R. 431 holds:

“Where a policy allowed compensation for damage to an automobile by accidental collision with any object, movable or im movable, but provided that contact with the roadbed on which said automobile is being driven or the sides thereof, shall not be regarded as a collision and is not a risk insured against.”

It was held that no recovery could be had under a policy for damage to an automobile sustained when it was turned sharply to avoid another vehicle so that the front wheels ran off the cement roadbed on to the ground and in an attempt to avoid sign post the car skidded off and collided with the earth on the outside with such force as to break a wheel and cause the car to upset.

In Stuht vs. U. S. F. & C. Co., 89 Wash. 93, 154 Pac. 137, decided in 1916, the court held that the evidence showed that the machine upset at the edge of a bank when the driver was attempting to make a quick turn and that the damages were the result of falling over a bank and not by collision. The policy in that case specially excluded liability for damages caused by:

“Striking any part of roadbed,” and “damage caused by upset, unless such upset is the direct result of such a collision as is covered by the policy.”

The case of Power Motor Car Co. vs. U. S. F. Co., 223 Pac. 112, is stated in plaintiff’s brief as holding that where plaintiff was driving his automobile and noted directly in front of him an obstruction in the roadway and turned sharply off the roadway and the wheels of his automobile fell into a ditch, the upper part of 'both sides of which was even with the ground, completely wrecking his car, it was held that this constituted a collision with an object under the terms of the policy not limiting the collision to one on the highway or restricting thé kind of object. We have not verified this citation but it seems in line with other cases of cars falling into ditches.

From this survey of the jurisprudence it appears to be settled that such incidents as a ear falling to the bottom of an elevator shaft or into a ditch or stream, the water and bottom of a stream or the bottom of an excavation, are collisions, and counsel seem to concede that where such incidents occur off of the highway the insurers are liable. We cannot appreciate the reasoning which, while conceding that such incidents are collisions when occurring off the highway, yet concludes that they would not be collisions when occurring on the highway.

However, we hardly think counsel intends to claim exactly this. Their claim is rather that though collisions in the intendment of the policy when occurring off the highway, they are not collisions within that intendment when occurring on it.

The cases holding insurers free of liability on policies excluding liability for damage caused by contact with the road or by collision due to upset where the court found the damage was so caused (Gibson and Lanan cases) are not in point here/we think, where the policy does not contain so broad an exclusion clause, but, on the contrary, a much narrower one, • namely:

“* * * (b) loss or damage to tires due to puncture, cut, gash, blowout or other ordinary tire trouble, and excluding in any event loss or damage to tires unless caused in accidental collision which also causes. other loss or damage to the insured automobiles; * * *”

As t.o the cases involving policies with exclusion clauses similar to the one here, the exact grounds upon which non-liability is predicated is not always clear. We do not understand the courts in those cases to hold that such incidents as are dealt with were not collisions at least in the sense of the lexicographers but merely that they were not collisions within the intendment of the policies. Nor do they always indicate why they are not in such intendment.

In the Bell cáse it was stated that the incident, while a collision according to the dictionary, was in common parlance an upset.

In the Fox case, skidding, overturning and striking an embankment outside of the roadway, the court says, was not collision within the meaning Of the policy, without saying why; but says the case is ruled by the Bell case.

In the Moblad case, where the car overturned and rolled down a mountain side, receiving damage, the court held that the proximate cause was the' overturning of the car; the subsequent revolutions and consequent damage being merely the operation of physical laws set in motion by such overturning.

In the Paul case, the court held that the damage was due to the failure of the brakes to hold and the car rolling by gravity, which, the court says, would not be a .collision within the intendment of the policy.

In the Young case, the Circuit, Court of Appeals held that the proximate cause was the breaking of the axle.

The fundamental thought in these cases seems to be that the cause of the collision is to control the question of liability. Where this cause was an upset, the courts, as pointed out in St. Paul, etc., Co., vs. American Compensation Co., 100 Sou. 904, may have been and probably were influenced by the decisions in the cases involving policies with clauses excluding liability for damages caused by' collisions due to upset; but, if so, it seems to us .that those cases were not applicable.

In the other cases, the courts seem also to consider that not the collision but the cause of it must be looked to.

As said above, this cause was, in the Paul case, the failure of the brakes to hold, and in the Young' case, the breaking bf an axle. We think, though, that where the: insurance is broadly against:

“Loss by reason of damage to or de-' struction of .any of the automobiles described in Statement 5 of the declaration, caused solely by accidental, collision wit another object.”

Without excepting contacts with the roadway or collisions caused by upset, it is beside the question to inquire whether the collision was on or off the road or whether it was due to upset, failure of brakes to hold or any of the other mentioned things which might cause it, Especially is this so where the insurer is careful to insert an exclusion clause clearly contemplating road contacts and guarding against liability for certain kinds of damage caused thereby.

Under such policies we see no more reason to relieve the insurer from liability for a collision caused by an upset than for one caused by the gear going wrong or the weather being foggy or the driver careless or inexperienced, or any other of the numerous things that might cause -a collision. If permissible to transfer the inquiry from the collision itself to the cause of it in upset cases it would be equally so in other cases. A cause for the collision would be found in every case. If, then, the collision could be jumped over as the cause of the damage and the damage ascribed to the cause of the collision with resulting freedom from liability, then it seems to us that liability might be excluded in every case and insurance policies would become valueless.

If, however, this reasoning is unsound and it be permissible to determine the question of liability by considering not the collision but the cause of it, it is at least true that the meaning of policies of the kind in question is not now and was not at the time the policy herein involved was issued so well, settled as to make inapplicable the rule of construction whereunder the language should be taken most strongly against the insurer. This was the conclusion arrived at in the well-considered cases on which our original opinion was mainly based, to-wit: Great American, etc., Co. vs. Jones, 144 N. E. 596, by the Ohio Supreme Court, and Firemen’s Insurance Co. vs. Savery, 143 N. E. 612, decided by the. Indiana Supreme Court. In both of these cases, decided in 1924, the jurisprudence was fully reviewed, including the Bell, Moblad, Paul and the Young case as de.cided by both courts.

Both the Jones and Savery cases point out that insurance companies are usually represented by able counsel who are presumed to know what risks their clients wish to take and what to exclude. They further point out that at the time the policies in those cases were issued, that one in the Indiana case and perhaps in the other also being later than the one here, the books contained decisions making it evident that the meaning of the policies was not clear but ambiguous and that it was the custom of some companies to make clear their non-liability for road contact or upset by clauses clearly expressing such non-liability. In view of all this, these courts considered that policies not containing those broad exclusion clauses but the narrower one contained in this case were ambiguous, justifying a construction of the policy most strongly against the insurer.

Our re-examination of the jurisprudence confirms us in the view that those cases rather than the ones relied on by defendant’s counsel correctly express the law,

Rehearing refused.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit Appeal
    E. M. HAZZARD v. J. A. EDWARDS
    (May 5, 1925, Opinion and Decree)
    (June 30, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4.
    Where plaintiff is driving an automobile at a moderate rate of speed on the ' right side of the road when another ' car, being driven at an excessive rate of speed, swerves from the right side of the road and hits plaintiff’s car, damaging it, the defendant is negligent and liable for the damage done.
    2. Louisiana Digest — Automobiles—Par. 4, 4 (d).
    Where defendant’s car was being driven at an excessive rate of speed and negligently by a boy under 16 years of age, when the accident happened, defendant is liable for the resultant damage.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of Calcasieu. Hon. Jerry Cline, Judge.
    This is a suit for damages caused by an automobile collision.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Robert R. Stone, of Lake Charles, attorney for plaintiff, appellant.
    T. A. Edwards, of Lake Charles, attorney for defendant, appellee.
   LECHE, J.

Plaintiff appeals from a judgment refusing his demand for damages claimed to have been suffered as a result of an automobile collision. The judgment of the District Court is based upon the verdict of a jury whose members were polled as nine to three in favor of defendant.

The facts are: That plaintiff was driving a new Buick automobile on a. public road leading south out of Lake Charles and the minor son of defendant was driving a Studebaker automobile on the same road, but was going north or in an opposite direction and towards that city. Each of the parties was following a track in accordance with the law of the road, on their respective right side, when as the two automobiles were at a distance approximated as seventy feet, the Studebaker was suddenly swerved from its path, turned at an angle to the left and struck the Buick on its left front end with great force. The roadway where the collision took place is estimated as being 60 feet in width and is admitted to have .been very rough and full of holes at the time. Both machines were damaged and their occupants were shocked and more or less injured by the impact.

The question in the case is what caused defendant’s automobile to make the sudden turn and whether that cause arose from the negligence of defendant’s minor son who was at the time driving the automobile.

The precise cause for the sudden swerve of the Studebaker is not established with-absolute precision and is more or less a matter of deduction from the surrounding facts and circumstances. The only logical deduction, however, that can be drawn from these facts and circumstances is that the machine was being driven in a careless and reckless manner. If the turning of the Studebaker arose from some cause beyond the defendant’s' control, the burden was upon him to show that fact. This he has failed to do. The breaking of a radius rod as a cause for the crooked course pursued by the defendant’s machine is not shown with any degree of certainty; it rests more on supposition than upon direct evidence, and the great probability and reasonable supposition is that the breaking was caused by the impact against the Buick.

Our conclusions of fact from all the testimony in the case are: That plaintiff was driving at the very reasonable speed of about 15 miles per hour and on that part of the highway which he had the right to occupy. That the Studebaker came against him so suddenly and with such rapidity that he could neither stop nor do anything to prevent the collision. That the defendant’s son was driving at great speed admittedly about or over 30 miles an hour, upon a road that was so rough and undulated that his machine skidded and got beyond his control. That driving at such a speed upon that kind of a road was negligence. The boy was under 16 years of age, and while, no doubt, he is bright and understands the use of the controls of a car, that it was a lack of judgment on his part amounting to sheer negligence that caused the accident.

As soon as the collision had occurred and the occupants of the two machines had gotten out, a very significant remark was made by defendant’s son, on the spur of the moment and forming as it were part of the res gestae, to the effect that he was á d- fool for driving like that.

Our firm conviction is that defendant’s son was at fault and that defendant is liable for the damage caused to plaintiff’s automobile.

We have not the advantage of an estimate of that damage by the trial court, but our opinion is that the repairs to plaintiff’s machine are proved in the sum of $432.42 and that plaintiff’s further claim for $250.00, diminished value of his Buick as a result of the collision, is not sustained by sufficient proof.

For these reasons the judgment appealed from is avoided and reversed, and it is now ordered that plaintiff recover of defendant and have judgment against him in the sum of four hundred and thirty-two and 42-100 dollars and all costs of this suit.


author: ODOM, J.

text:
    No. 2247
    Second Circuit Appeal
    F. E. MARSALIS v. SIM RENT
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 715.
    Where the plaintiff in order to obtain a correction of a judgment by default in lower court appeals to the Court of Appeal, the appellate court will order the judgment set aside and the case remanded to be re-instated on the docket of the lower court.
    On appeal from the Fourth Judicial District Court of Louisiana, Parish of Lincoln, Hon. S. L. Digby, Judge.
    D. Thompson, of Ruston, attorney for plaintiff, appellant.
    Sim Rent, attorney in propria personae.

   ODOM, J.

Plaintiff is the holder and owner of a promissory note for $306.00 secured by mortgage on certain land in the parish of Lincoln. He brought suit against the maker of the note for the amount due with interest and asked that his special mortgage securing said note be recognized and ordered enforced against the property described therein and ordering the said property sold and, the proceeds or a sufficient^ amount thereof to pay his debt paid to him.

Defendant was personally cited, but failed to appear. A default judgment was entered and finally confirmed. The judgment recognized plaintiff’s special mortgage on the land and ordered it sold to pay the debt; but in preparing the judgment a clerical error in the description of the land was made so that the description in the judgment does not correspond with that in the mortgage. This error was not discovered until it was too late to have it corrected in the District Court.

Plaintiff petitioned the lower court to grant an appeal to this court. The petition for the appeal and a citation were served on the defendant who made no appearance.

Plaintiff sets up that there are certain errors in the act of mortgage itself which he desires to have corrected in the lower court, and suggests in brief that we authorize- the lower court to reopen the case for the purpose of receiving cartain testi-' mony with reference to the error complained of. We do not think it proper to issue any instructions to the lower court, but in view of the fact that we find error in the judgment appealed from we think it should be set aside and the case remanded.

It is therefore ordered that the judgment appealed from be set aside and that the case be remanded to the lower court and reinstated on the docket thereof. Costs of the appeal to be paid by plaintiff, appellant.


text:
    No. -
    First Circuit Appeal
    W. P. SULLIVAN v. M. P. BRODERICK
    (May 15, 1925, Opinion and Decree)
    (June 30, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 185, 186; Brokers — Par. 1.
    One who bargains with another who in turn has a contract with a third party to deliver a certain quantity of potatoes, cannot recover from the third party for the price of the potatoes delivered to the other, as the party with whom he dealt was not the agent of the third party.
    Appeal from the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit to recover the price of potatoes sold and delivered.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Shelby Taylor, of Baton Rouge, attorney for plaintiff, appellant.
    H. P. Breazeale, of Baton Rouge, attorney for defendant, appellee.
   LECHE, J.

Plaintiff seeks to recover from defendant the sum of one hundred and fifty-three and 63-100 dollars, the price of 12,291 pounds of potatoes, which, he alleges to have sold and delivered to defendant.

Plaintiff does not claim, in his testimony, to' have negotiated the sale directly with the defendant, but with Guy Mondart, who, he says, was the authorized agent of defendant. The weakness of his case lies in the fact that Mondart had no authority on the part of defendant to enter into the alleged contract óf sale. Defendant agreed to purchase a carload of potatoes from Mondart who was to get the potatoes wherever he could, provided the car was delivered loaded to defendant in time to be shipped from Baton Rouge on the 14th and to be delivered in Memphis, Tenn., on Monday, the 16th of April, 1924. Defendant did not treat or bargain with plaintiff, nor did he know plaintiff at all in the transaction. The contract was entirely between himself and Mondart. The car was only made ready for moving on the 15th, and did not reach Memphis until several days later. When Mondart brought the bill of lading, defendant at first refused to accept it as representing a delivery of tbe potatoes, because it was too late. After some discussion, however, it was then agreed that defendant would take the potatoes on consignment and sell them in open market for account of Mondart. He gave Mondart a check for one hundred and fifty dollars on account, the balance of the proceeds to be turned over to Mondart upon .receipt of the account sales- from Memphis. A notation written in ink upon the face of the check was made to that effect at the time.

These facts are positively and unhesitatingly testified to by Broderick, who is corroborated by the witness, H. Stein, and by the memorandum of .agreement on the check. Plaintiff evidently misunderstood Mondart or was the victim of Mondart’s misunderstanding. His claim was properly rejected by the District Court.

The judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 9769
    Orleans Appeal
    ALCIDE P. BABIN v. SEWERAGE AND WATER BOARD OF NEW ORLEANS, ET AL., APPELLANTS
    (May 25, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Municipalities—Par. 58.
    Courts have always exercised a sort of tutelage over municipalities and have shown ■ indulgence towards their attorneys in matters of pleading and practice.
    2. Louisiana Digest — Municipalities—Par. 173, 174.
    It is the duty of all persons to obey an ordinance of the city and not to reason about it or question its efficacy or necessity.
    3. — Louisiana Digest — Corporation — Par. 162.
    The duty of obeying ordinances imposes itself upon all corporations, public or private.
    4. Louisiana Digest — Corporation — Par. 203, 204.
    The Sewerage and Water Board is liable for all offenses committed by its employees and may be sued therefor.
    5. Louisiana Digest — Negligence—Par. 1, 3.
    The failure to insulate electric wires in the manner required by an ordinance and to maintain them in practical insulation is negligence.
    6.- Louisiana Digest — Negligence—Par. 20, 21.
    To constitute contributory negligence it must be shown that plaintiff voluntarily and unnecessarily exposed himself to a known danger.
    7. Louisiana Digest — Negligence—Par. 21.
    One who in a moment of forgetfulness receives an injury from a known danger is not thereby debarred of recovery.
    8. Louisiana Digest — Damages—Par. 105.
    $25,000 allowed for the loss of both arms above the elbow when the plaintiff has already received $5050 from his employer.
    (Civil Code, Art. 2315, Editor’s note.)
    Appeal from Civil District Court, Hon. Sam A. LeBlanc, Judge.
    This is a suit for damages for personal injuries due to plaintiff’s coming in contact with electric wires.
    There was judgment for plaintiff and defendant, Sewerage and Water Board, appealed.
    Judgment amended and affirmed.
    John R. Perez, John D. Miller, Thomas J. Martin, . attorneys for plaintiff and apr pellee.
    Walter L. Gleason, Michel Provosty, attorneys for defendant and appellant.
   CLAIBORNE, J.

Plaintiff Was injured by electric wires belonging to the defendant. Hence this suit.

Plaintiff alleged that he -was employed by the Federal Electric Company; that the business of said company consists in' selling, leasing, maintaining and repairing electric signs; that the said company owned an electric sign- which it had leased to the Broadway Garage,, and installed upon its premises on Broad street, near Dumaine, at a height of about twenty feet above the sidewalk; that the Sewerage and Water Board of New Orleans had erected and were operating along Broad street immediately adjacent to. the above mentioned sign an electric wire of a high voltage furnishing power to the Broad street pumping station of said board; that the said wire would have been inocuous had the same been properly insulated; that by Ordinance No. 13,790 C. S., Section 1, it is provided that: “Electric light and power conductors shall be secured to insulating fastenings and covered with an insulation which is Waterproof and not easily abraded; whenever such insulation becomes impaired, it shall be renewed immediately”; that notwithstanding said ordinance and in disregard of its duty to the public, the said Sewerage and Water Board permitted the said wire on Broad street to decay so that the insulation on Broad street became dilapidated and in many places missing; that on November 20, 1922, while plaintiff was repairing the electric sign on the Broadway Garage, he lost his balance and in an instinctive effort to prevent his falling to the sidewalk he accidentally came in contact with said defective wire and thus received the full charge of electricity contained in said wire; that as a result he suffered burns which caused the amputation of both of his arms above the elbow and thus became permanently incapacitated from performing any kind of work; that in the suit of plaintiff vs. Federal Electric Co., Civil District Court, there was judgment in favor ' of petitioner, under the Employer’s Liability Act, for $12.00 per- week during 400 weeks, ’or a total of $4800.00, and for $250.00 for medical expenses; that, at the time of the accident plaintiff was twenty-four years of age; that he was earning $20.00 a week; that he had an expectancy of forty years more of life, and a hope of earning an average of $35.00 per week; that the Sewerage and Water Board is indebted to him in the sum of $72,800, less $5675.85 which he will receive from the Federal Electric Company.

The defendant admitted that it was a corporation created by Act 6 of the Extra Session of 1899; admitted that it operated a high tension electric wire on Broad street; admitted the Ordinance No. 13,790, but averred that it was impractical of observance, and that it was not obligatory upon the Sewerage Board and that it was not practical to maintain insulated wires of the voltage required for its work; but denied every othqr allegation.

It further averred that the only funds under its control are the following: 1st, the avails of the special tax which are dedicated to construction work; 2nd, the water rates, which are dedicated to the maintenance and operation of the sewerage; and 3rd, the funds budgeted by the city of New Orleans for the operation of the drainage. It further averred that the Sewerage and Water Board was only an administrative agent of the city of New Orleans which alone was responsible to the plaintiff.

By a supplemental petition the city of New Orleans was made a party defendant.

In a supplemental answer the Sewerage Board averred that its wires were constructed in accordance with the approved practice throughout the United States and in accordance with the laws in existence at the time of their construction; that said wires are strung in cross-arms on a post erected on the sidewalk; that said post is 10 feet 6 inches from the building line, and the bottom cross-arm is located 24 feet 6 inches above the sidewalk; that since the stringing of said wires the Federal Electric Company has attached to the building the electric sign, which is 4 feet 6 inches high and 9 feet wide, so that the top of it is only 24 inches below the said cross-arm; that the plaintiff was familiar with electricity and was aware of the danger of contact with high tension wires; that any injury the plaintiff suffered was due to liis failure to take proper precautions necessary to avoid coming in contact with said wire and that he was guilty of contributory negligence.

The city of . New Orleans denied all plaintiff’s allegations.

The plaintiff moved to strike out ■ the supplemental answer of the Sewerage Board.

The motion was denied.

There was a verdict and judgment against the Sewerage Board for $50,675.85, subject to a credit of $5675.85 allowed under the Workmen’s Compensation Act. A new trial was refused and the defendant, the Sewerage Board, alone appealed.

1st. At the threshold of the trial, plaintiff objected to the introduction of evidence in support of the supplemental answer of the Sewerage Board on the ground that it changed the issue.

Ct. App. No. 2243, bk. 14; 3 Ct. App. 264; 7 Ct. App. p. 296.

The objection was overruled. Although, under Articles 419 and 420 of the C. B., plaintiff’s objection might have been justified between ordinary litigants, the courts have always exercised a sort of tutelage over municipalities and have shown indulgence towards their attorneys in matters of pleading and practice. The ruling of the trial judge was correct.

2nd. Upon the trial of the case the defendant put upon the witness stand A. Baldwin Wood, the mechanical engineer of the Sewerage and Water Board, and attempted to elicit from him what had been the practice throughout the United States in erecting high tension wires similar to those on Broad street; did not those on Broad street correspond with those used elsewhere; what was generally understood in the profession of electric wires “covered with an insulation which is waterproof and not easily abraded”; would such insulation afford protection to persons coming in contact with such wires charged with a voltage of 3300 volts; would not a person coming in contact with a wire insulated in that manner suffer the same shock as if the wire had not been insulated at all; w;as it not the practice to string such wires without any insulation at all; did hot the climatic condition of this city render it impossible to maintain high tension electric wires with insulation sufficient to protect persons coming in contact with them; was it possible to lay those wires underground to serve their purpose; had not these wires been maintained in as good a condition as it was possible to maintain them under the condition prevailing in the city?

To all of which questions the plaintiff objected on the ground that they were immaterial and irrelevant for the reason that under the jurisprudence of this state a strict compliance with the Ordinance 13,790 was an essential requisite and admitted of no violation for any reason whatever.

The objections were maintained.

Douglas Anderson, professor of electrical engineering, was placed upon the stand for the same purpose and his testimony was excluded for the same reason.

In the case of Jones vs. N. O. Ry. and Lt. Co., 123 La. 1060, 49 South. 706, the motorman of defendant company failed to observe an ordinance commanding him. to come to a full stop under certain conditions. The defendant attempted to exculpate the motorman by arguing that the ordinance under the circumstances was unnecessary and would not have prevented the accident. The court said on p. 1065:

“His (the motorman’s) duty was to conform to the ordinance, not to reason about it. He had no discretion in the premises. It is the duty of the court to see that that ordinance which is enacted under the police power for the public safety should be rigidly enforced in aid of the remedy for the mischief sought to be : guarded against”

It is not a sufficient answer for a defendant to say that the insulation required by an ordinance is unnecessary. The necessity is' determined by the ordinance which is intended for the protection of persons who may come in contact with such wires through accident, ignorance or imprudence. Moven vs. New Orleans Ry. & Lt. Co., 125 Lo. 945, 52 South. 106. See, also, City of Shreveport vs. Southwestern Gas & Electric Co., 145 La. 680, 82 South. 785.

We are therefore of the opinion that the ruling of the trial judge was again correct.

3rd. The defense that the ordinance was not obligatory upon the Sewerage Board is equally without weight. The duty of obeying an ordinance of the City Council imposes itself upon all the corporations, public as well as private. The defendant corporation had no more right to violate Ordinance 13,790 than it had to violate any other ordinance. The police power of the city extends over all corporations as well as over all citizens.

4th. We see no merit in the defense that the Sewerage Board is not liable for offenses committed by its offices or employees, and that the city of New Orleans alone is liable for the reasons stated in the answer or because it is only a municipal' functionary. The revenues of the city of New Orleans, in taxes and otherwise, are levied and dedicated by law and appropriated by the city in its annual budgets. Its revenues are exempt from seizure and no execution can issue against it, under the law.

Because no appropriations are made by it under the law or by its budget to pay damages for fault of its employees, or because of its immunity from seizure, are no reasons why it should be relieved of responsibility for torts. At least no opinion has so far been rendered to that effect, and we think that is no valid reason. When a judgment shall have been rendered against the Sewerage Board it shall be its duty, we opine, to make provision for its payment, as part of its operating expenses. Davis vs. Belt R. Rd., 155 La. 504, 99 So. 419; Solomon vs. same, May 5, 1924.

5th. Nor do we consider that the Sewerage Board is a mere municipal functionary of the city of New Orleans. It is an independent corporation created by Act No. 6 of the Extra Session of 1899 incorporated as a part of the Constitution by amendment adopted in 1900. An attempt to amend the same by adding eight members was declared unconstitutional. State ex rel. Saunders vs. Kohnke, 109 La. 838, 33 South. 793.

The Act of 1899 creating the Sewerage Board was ratified and approved by Section 23, p. 107, of the Constitution of 1921. In a recent case this court condemned the Sewerage Board in damages for failure to protect an excavation. See case of Shally vs. N. O. Sew. & Water Board, No. 9758. (1 La. App. 770.) And for negligence in piling pipes too close to a street car.

6th. The evidence leaves no doubt of defendant’s negligence.

The wire which injured the plaintiff was not insulated in the manner required by the ordinance. That alone was negligence which renders the defendant liable when that negligence was the cause of the injury.

The insulation of the wire such as it was was in bad condition and left parts of the wire exposed. Such was the testimony on behalf of the plaintiff which the defendant did not contradict.

The argument that danger was not probable and could not have been anticipated

is answered in the Schwartz case, 110 La. 546, 34 South. 667, where the court said:

“It makes no difference that the danger which defendant created by the manner of running its cars at this crossing threatened no one in particular, and might have continued long in existence without anyone suffering from it. Suffice that it existed and was susceptible of causing injury, and was the result of negligence. Wharton, Neg. S. 109.”

7th. The jurisprudence of Louisiana has been constant that when an ordinance requires a company operating electric wires to insulate them, the failure so to do is negligence which renders the company liable. Clements vs. La. Electric Lt. Co., 44 La. Ann. 692, 11 South. 51, affirmed in Potts vs. Shreveport, 110 La. 1, 34 South. 703; Herbert vs. Lake Charles, 111 La. 522, 35 South. 731; Whitworth vs. Shreveport B. Ry. Co., 112 La. 363, 36 South. 414; Simmons vs. Shreveport B. E. L. & P. Co., 116 La. 1033, 41 South. 248; Elias vs. Mayor etc., New Iberia, 137 La. 691, 69 South. 141.

Potts vs. Shreveport Ry., 110 La. 1, 34 South. 103.

“A company maintaining electrical wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go either for work or pleasure, to prevent injury. -It is the .duty of the company under such conditions to keep its wires perfectly insulated and it must exercise the utmost care to maintain them in this condition at such places, Joyce Electrical Law, Sec. 445-517, and. a company maintaining such Wires must see to it that their lines , are safe for those who by their occupation are brought in close proximity to them,” quoting Clements vs. La. Electric Light, 44 La. Ann. 692, 11 South. 51, and other authorities.

The same authorities hold that the failure to maintain the insulation in good condition is tantamount to no insulation.

The important question remaining is that of contributory negligence.

The plaintiff was not an electrician.

■ The Federal Electric Company put up signs illuminated 'by lamps or globes.

The company employed him to inspect the signs and to replace broken or missing lamps. He explains the accident in the following words: .

“I went up on the sign and there was the letter ‘G’ on the further end of the sign, by the sidewalk edge, and I was fixing to reach ’way down to this ‘G’ light; it was quite a reach, and by balancing myself I went to reach over and I grabbed at the chain. which extends from the wall to the end of the sign, and by failing to grab the chain I made contact with the high volt wire before I reached the chain, and after that I was completely knocked out. * * * I didn’t know the condition of the wire before my accident. * * * I didn’t know tliey were high voltage wires.”

He saw the wires before the accident but did not know their condition.-

Where a person is employed in the presence of a known danger, to constitute contributory negligence it must be shown that he “voluntarily and unnecessarily exposed himself to the danger.” Potts vs. Shreveport, 110 La. 1, 34 South. 103; 44 A. 692; City of Shreveport vs. Southwestern Gas & Electric Co., 145 La. 680, 82 South. 785.

“A person whose occupation brings him in proximity to the .company’s wires has a' right to believe that the wires have been insulated.” Clements vs. La. Electric Lt. Co., 44 La. Ann. 692, 11 South. 51.

It is evident that the plaintiff did not expose himself unnecessarily and that he did not know that the wire was dangerous, and if so, that it was not insulated.

But even had he known all this, he cannot be debarred from recovery because in a moment of forgetfulness he put his hand on the wire. The primary fault was in defendant. See Shally vs. Sewerage and Water Board decided by this court, No. 9758. (1 La. App. 770.) .

Nearly all the authorities quoted by the defendant are from other states, which seem to be at variance with our jurisprudence.

In two of the cases from this state quoted by the defendant, Walker vs. Shreveport Gas, Electric Light Co., 120 La. 68, 44 South. 925 and Borell vs. Cumberland Telegraph and Telephone Co., 133 La. 630, 63 South. 247, plaintiff’s injury resulted from a violation by them of positive instructions.

In the case of Lapouyade vs. N. O. Ry. & Lt. Co., 138 La. 237, 70 South. 110, the plaintiff was defeated on the ground that he was a trespasser. See p. 240; also 91 Atl. 149-111, S. W. 712.

But in that case the court said on p. 242:

“A different rule would have had to be applied in this case if the trespass had been so very slight as to have been purely technical; such a one as anybody might be guilty of inadvertently, or even intentionally, on the assumption that no harm could possibly result.”

In the case of Bouchon vs. N. O. Ry. & Lt. Co., 154 La. 397, 97 South. 587, the plaintiff was adjudged guilty of contributory negligence on the ground that he knew of the presence of the wire, and of its danger, and a few minutes before the accident had been warned of the danger of the wire. 84 Pac. 393.

But we think that the amount of the verdict and judgment is unprecedented and excessive. We are informed by defendant’s brief that the verdict in this case was by a jury of nine, from which two of the members dissented on the question of amount, and one voting against the judgment entirely.”

We realize fully the sufferings, the injury and the helpless condition of the plaintiff. But considering that he has already received against the Federal Electric Company, his employer, a judgment for $5050 under the Employer’s Liability Act, we are of the opinion that a judgment for twenty-five thousand dollars will be sufficient.

It is therefore ordered that the judgment herein for forty-five thousand dollars be reduced to twenty-five thousand .dollars with five per cent per annum interest from September 26, 1925, till paid, the plaintiff to pay the costs of appeal and the defendant to pay the costs of the District Court.


author: CARVER, J.

text:
    No. 2323.
    Second Circuit Appeal.
    WILLIAM M. LASYONE v. GRANT TIMBER & MANUFACTURING COMPANY OF LOUISIANA, INC. J. W. STELL, Warrantor.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest- — Master and Servant— Par. 154, 160 (e), 160 (I).
    Under Section 18, Subsection. 4, of the Workmen’s Compensation Law, Act No. 20 of 1914, the Court of Appeal will not necessarily have to dismiss an appeal because the transcript was filed too late. Code of Practice, Art. 594 does not apply t'o Workmen’s Compensation cases.
    2. Louisiana Digest — Master and Servant— Par. 154, 160 (e).
    While Section 20 of the Workmen’s Compensation Law, Act No. 20 of 1914, authorizes a review by the District Judge after the lapse of a year from the time the judgment shall have become operative it does not warrant the appellate court in remanding the case for the pui'pose of obtaining proof as to change in plaintiff’s condition since the trial before the expiration of a year.
    3. Louisiana Digest — Master and Servant— Par. 159.
    Where the injured employee suing for compensation under Section 8, Subsection 1 (b) of the Workmen’s Compensation Law, Act No. 20 of 1914, as amended by Act 43 of 1922 is able to make the saíne wage that he made before the accident he is not entitled to compensation.
    (The recent amendment of Section 8 of Act 20 of 1914 is Act 216 of 1924. Editor’s note.)
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Grant, Hon. L. L. Hooe, Judge.
    This is a suit for compensation under Workmen’s Compensation Act No. 20 of 1914, brought by an injured employee. The defendant called Stell in warranty.
    There was judgment for the plaintiff and plaintiff appealed.
    Judgment affirmed.
    E. E. Kidd, C. H. McCain, of Alexandria, attorneys for plaintiff, appellant.
    A. L. Burford, White, Holloman & White, of Alexandria, attorneys for defendant, appellee.
   CARVER, J.

The plaintiff, a log sawyer, employed by Stell, a contractor under defendant, sues defendant under the workmen’s compensation act for $14.40 per week for 400 weeks, claiming to have been permanently and totally disabled by his leg being cut near the knee in the course of his employment.

Defendant called Stell in warranty.

Both defendant and the warrantor admit that plaintiff received a slight injury by his leg being cut, but deny that said injury disabled him totally or permanently.

Stell pleads, further, that plaintiff was paid, by crediting same on an account due by him, the sum of $87.35 in full settlement of the compensation due him for the injury.

The District Judge gave plaintiff judgment for $14.40 per week, or 60% of his weekly wages, for a period of four weeks, less the $37.35 paid him by Stell in the manner above mentioned.

The minutes of the lower court show that on July 7, 1924, defendant obtained a devolutive appeal reteurnable August 29, 1924, and that on January 5, 1925, the plaintiff obtained an appeal returnable March 2, 1925. The record was filed in this court by plaintiff on March 2, 1925.

Defendant moves to dismiss plaintiff’s appeal on the ground that the order of appeal was obtained by plaintiff on July 7, 1924, returnable August 29, 1924, and that the transcript not having been filed on or before August 29, 1924, the appeal was abandoned and no subsequent appeal was permissible.

The law is well settled that the failure of an appellant to file the transcript by the return day is an abandonment of the appeal.

Code of Practice. Article 594.

Cox vs. Hope S. & L. Co., 130 La. 232, 57 South. 889.

The law not requiring any appeal bond in this case, the mere taking of an order of appeal would perfect same so as to make it the appellant’s duty to file the transcript by the return day under penalty of the appeal being regarded as abandoned.

Levee Board vs. Howard, 132 La. 911, 61 South. 868.

According to the minutes, though, the appeal of July 7, 1924, was not taken by plaintiff, but by defendant. Should the minutes control, therefore, the only appeal taken by plaintiff was that on January 5, 1925, returnable March 2, 1925, on which day the record was filed.

At the oral argument, though, plaintiff’s counsel frankly admitted that the minutes of July 7, 1924, were erroneous and that the appeal therein mentioned was not taken by defendant but by plaintiff. He further stated, though, that he had inquired of the clerk of 'the lower court before the return day about the record and had been informed by him that it had been filed in the appellate court. He further stated that the clerk of the lower court told him afterwards that he had intended filing the record but had refrained from doing so because defendant’s attorney had informed him that he did not wish it sent up, and he, the clerk, thought the appeal had been taken by defendant, being misled by the minutes of July 7, 1924; but that this information was not imparted to him, plaintiff’s attorney, until after the session of this court at Alexandria in December, 1924, at which time he thought the case would be tried and was surprised when he received the calendar for the December term and saw the case was not on it.

We do not mean to imply, nor did we understand plaintiff’s counsel as implying, that any blame was to be attached to defendant’s attorneys for telling the clerk that they did not wish the record sent up, they simply having meant, as we understand it, that they did not care to appeal themselves, without, though, intending . any interference with plaintiff’s appeal.

We do not wish to establish a precedent by violating or modifying the well settled rule that an appeal must be regarded as abandoned if the record is not filed by the return day or an extension obtained before that. Under the circumstances of this case, though, and especially in view of the provision in paragraph 4' of section 18 of the compensation act providing “the judge shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided”, we have concluded to overrule the motion to dismiss.

Plaintiff’s counsel filed a motion to return the case to the lower court for the purpose of taking testimony as to his, Plaintiff’s present condition. They allege that since the trial in the District Court plaintiff’s condition has become so much worse that he is unable to pursue his occupation of sawing logs and that his earning capacity has greatly decreased.

The compensation act provides, in section 20, as follows:

“That a judgment of compensation may be modified at any time by subsequent agreement between the employer and employee with the approval of the judge of the court that rendered the judgment sought to be modified or any time after one year when said judgment of compensation shall have become operative it may be reviewed by the judge of the court that rendered the judgment sought to be modified upon the application of either employer or employee on the ground that the incapacity of the injured employee has subsequently increased, such increase growing directly out of the injury for' which compensation had been allowed or diminished. In such case the provisions of paragraph 1 and 3 of section 9 with reference to medical examination shall apply.” '

This section, in our opinion, while it authorizes a review by the district judge after the lapse of a year from the time the judgment shall have become operative, does not, we think, warrant us in remanding the case for the purpose of obtaining proof as to change in plaintiff’s condition since the trial.

The motion to remand is, therefore, overruled.

ON THE MERITS.

It seems to us that the proof supports the judgment of the district judge. The demand is for compensation for total, permanent disability. The testimony of plaintiff himself shows that he is not totally disabled but, on the contrary, was able to do and did do work of the same character as he performed before the accident.

We think the proof shows partial disability, but as the compensation for partial disability under tbe law applicable to this case (Act 43 of 1922) is 60% of the difference between plaintiff’s wages at the time of the injury and the wages he was able to earn thereafter, and as the proof shows that his wages after the injury were equal to those before, nothing can be awarded on this score.

Stell testifies to the credit of $37.35 claimed by him, and plaintiff does not deny'same:

Eor these reasons, the judgment of the lower court is affirmed.


text:
    No. 2272
    Second Circuit Appeal
    COMMERCIAL CREDIT COMPANY, INC. v. R. E. POOL
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Minors—Par. 4, 5.
    Under Articles 1782 and 1785 of the Civil Code, where the testimony shows that a minor unemancipated signed the note sued on and that the contract which he entered into did not result advantageously to him, he is not bound thereby.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Winn, Hon. R. W. Oglesby, Judge.
    This is a suit to collect a promissory note secured by a chattel mortgage, which secured the balance of the purchase price of an automobile.
    The defense was the minority of the maker of the note. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    A. Leonard Allen of Winnfield, attorney for plaintiff,, appellant.
    Eugene Beck, of Winnfield, attorney for defendant, appellee.
   ODOM, J.

On January 23, 1923, the defendant R. E. Pool bought a Ford car from the Winnfield Auto Sales Company.

He paid only part of the price in cash at the time of the purchase, and for the balance he gave his note for $386.19.

To secure the payment of this note he executed a chattel mortgage on the car.

This note was transferred by the Winnfield Auto Sales Company to the Commercial Credit Company, Inc., the plaintiff in this suit. And it brings the present suit to recover the amount of the note and interest, less credits amounting to $128.75 paid by Pool.

The defence is that the defendant was a minor at the time he executed the note and that he is not bound for that reason.

His defence was sustained by the lower court. There was judgment in his favor rejecting plaintiff’s demand, from which judgment plaintiff has appealed.

OPINION.

The evidence satisfies us that the defendant was born September 26, 1903. The "defendant testified that he was 21 years old on September 26, 1924.' The family Bible was introduced in evidence. It shows the following:

“R. E. Poole was born September the 26, 1903.”

The page from which this is taken shows the date of the birth of the father and mother and other children of these parents.

Defendant’s father was called as a witness and testified that his soil, the defendant, was born September 26, 1903. He identifies the family Bible and was asked who made the memoranda therein showing the date of the birth of his children and he answered that they were made by a Mrs. Crawford. He testified that Mrs. Crawford attended at the birth of defendant and three of his other children and that he saw her make this record a few days after they were born. The names of some of his grandchildren also appear on this register and he thinks his daughter made these entries.

We think there is nothing suspicious about this registry. It is shown that the mother of defendant cannot write and it .seems but natural that the midwife who attended at the birth of the children should register the date of their birth, under such circumstances. The record was evidently not made up for this particular occasion.

The note sued on is dated January 23, 1923, or nine months before the defendant reached the age of majority.

The law is that a minor unemancipated is not bound by his contracts unless beneficial to him.

See:

Southworth vs. Bowie, 1 Mar. (N. S.) 537.

Gouerot vs. Gerrett’s Syndic., 3 Mar. (N. S.) 400.

Babcock vs. Pennington, 5 Mar. (N. S.) 561.

Ducrest vs. Bijeau, 8 Mar. (N. S.) 192.

And even where unemancipated minors are engaged in business they are not bound for their mercantile contracts.

Wallace vs. Tessier, 15 La. 13.

Babcock vs. Pennington, 5 Mar. (N. S.) 651.

Article 1785 of the Civil Code provides that:

“When the minor has no tutor or one who neglects to supply him with the necessaries for his support or education a contract or quasi contract for providing him with what is necessary for these purposes, is valid.”

The testimony shows that defendant had been working away from home and for himself for some three or four years previous to the date on which he purchased the automobile in question and that he had managed his own affairs. He did not consult his father about the purchase of this car, and when he bought it he at once began to use it as a service car. It is contended that the defendant represented' to the vendor at the time of the purchase of the car that he was 21 years old, although he denies that he told them that he was that old.

The application for the purchase of the car and the chattel mortgage both signed by him set out that he is 21 years old. He says, however, that his age was inserted in those documents out of his presence and that he signed them because the vendor told him that it would be all right.. For these reasons counsel for plaintiff urges that he is -bound and that he is now estopped to deny that he was of age at the time he entered into the contract.

There is nothing to show that this car was necessary for the support and education of young Pooh If he had been engaged in the mercantile or brokerage business it would hardly be contended that his contract in connection therewith would be binding upon him under the provisions of the Civil Code above quoted.

The law is that minors are not bound by their contracts unless their contracts prove advantageous to them. This contract- did not result advantageously to defendant for if enforced he will be burdened with a debt which with principal, interest, costs and attorney’s fees will amount to probably $350.00.

Plaintiff pleads that the defendant by his representations that he was 21 years old when he bought the car is now estopped to deny that fact.-

If a minor cannot bind himself he cannot estop himself either by conduct or representations.

There is nothing to show that this defendant has held out, since he reached his majority, that he was of age when he signed the note.

In the case of Davis vs. Coan, 14 La. 257, the court said when a party is near the age of majority, is openly an.d publicly doing business as a person of full age and gives himself out to the public as such he must be held to very strict proof of his non age.

In that case the court found that the testimony did not show that the defendant was a minor.

We think this case is authority for holding that even if a minor does hold himself out as a major he will not be held if he proves that he was under age when the contract was made.

The testimony in the instant case shows to our entire satisfaction that the defendant was a minor unemancipated when he signed the note sued on and that the contract which he entered into did not result advantageously to him. That being the case, we must hold that he is not bound.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


author: WESTERFIELD, J.

text:
    No. 10045
    Orleans Appeal
    ROSE SOPHIE EVELYN BEIGER, Appellant, v. PIGGLY-WIGGLY STORES, INC.
    (June 8, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 62.
    An exception of no cause of action admits the allegations of fact contained in the petition. On the trial of the exception no other fact can be considered as admitted.
    Appeal from Civil District Court, Parish of Orleans, Division “A”, Hon. H. C. Cage, Judge.
    This is a suit for possession of premises.
    Judgment reversed and case remanded.
    Frank Soule, attorney for plaintiff, appellant.
    John J. McCloskey, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit for possession of premises.

The petition alleges that plaintiff is the owner of the property described in the petition known by the Municipal Number 2601 Laharpe street; that the property was on January 30th, 1920, leased to the defendant for a period of five years commencing February 20th, 1920, and ending February 19th, 1925; that defendant was given written notice to vacate the premises more than ten days prior to the expiration of the lease; that the lease has expired and defendant refuses to surrender possession claiming the right to occupy the property for a further period of five years under the following clause in the lease:

“The lessor covenants and agrees that the Lessee shall have the right to extend or prolong the term of this lease for a further period of five years, from the expiration of the initial term of this lease, at a rental of------------------------dollars per annum, provided the Lessee shall give the Lessor written notice of its intention to avail itself of such right at least 90 days before the expiration of the initial term; and such notice when given shall operate to extend or prolong the term of this lease for such additional period, and all the covenants, agreements, terms, conditions and stipulations contained herein (except this covenant for additional period) shall apply to such further period of time as if it had been made a part of and included in the original term of this lease.”

It is further alleged that the rental to be paid for the extended term of the lease was purposely left blank with the understanding that it should be the subject of agreement between the lessor and lessee upon the expiration of the original term of the lease and that plaintiff has offered to extend the lease for a rental of $90.00 per month which defendant has declined.

Defendant filed an exception of no cause; of action which was maintained and plaintiff has appealed. • _ j

It will he observed that defendant’s right to a renewal of the lease under the clause we have quoted depends upon the lessor giving written “notice of its intention to avail itself of such right at least 90 days before the expiration of the initial term”. Under the circumstances, we do not believe the case can he disposed of on an exception of no cause of action, since even if the clause of the lease he valid, concerning which we express no opinion, defendant’s right to avail itself of it depends upon the giving of the stipulated notice, which notice is not alleged in the petition to have been given and cannot be assumed as a fact.

For the reasons assigned, the judgment appealed from is reversed and this case remanded for further proceeding according to law, the costs of this appeal to be borne by defendant and of the District Court to await the final determination of the suit.


text:
    No. -.
    First Circuit Appeal.
    MARTHA STANLEY v. ALICE McCRAY, ET AL.
    (June 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Petitory and Possessory Actions — Par. 48.
    Where plaintiff in a possessory action is not in real and actual possession of-the property at the 'instant when the disturbance occurred, he cannot maintain his action under Par. 1 of Art. 49 of the Code of Practice.
    Appeal from the Parish of Tangipahoa, Hon-. Columbus Reid, Judge.
    This is a possessory action brought by plaintiff who alleged that she was disturbed in her possession of property.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. W. Spiller, of Amite," attorney for plaintiff, appellant.
    Ellis & Ellis, of Amite, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff alleges that she was in possession of certain property situated in or near the town of Hammond, when in December, 1924, she was violently disturbed in her possession by the defendants.

The evidence shows clearly that plaintiff had been ousted from her possession in August, 1924, and therefore that she was not in possession when the alleged disturbance took place in December, 1924.

According to Par. 1, Art. 49, C. P., the complainant in a possessory action must have been in the real and actual possession of the property at the instant when the disturbance occurred, in order to maintain the action.

Plaintiff had been in possession previous to being ousted in August, 1924, hut her action is not based upon that disturbance, and by her pleadings, she has limited her right to the present action, to a disturbance alleged to have taken place in December, 1924.

The district court properly dismissed her suit.

Judgment affirmed.


text:
    No. -.
    First Circuit Appeal.
    J. B. COLT CO. v. J. L. BLACKWELL
    (June 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 222.
    Parol evidence in the absence of fraud or error is inadmissible to alter and vary the terms of a written contract.
    (Civil Code, Art. 2276, Editor’s note.)

      Appeal from the Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    This is a suit on a written contract to recover the purchase price of a carbide generator and accessories.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Kemp and Buck, of Amite, attorneys for plaintiff, appellee.
    Chas. Elliott, of Amite, attorney for defendant, appellant.
   LECHE, J.

Plaintiff sold to defendant an acetylene gas plant, consisting of a carbide generator and its accessories, and the present suit is to recover the purchase price thereof. The defense is based upon fraud and deception and from a judgment against him, defendant has appealed.

Parol evidence was offered and adduced to sustain the defense, but the trial judge having reserved his ruling upon the admissibility of that evidence, concluded on the submission of the case, that such evidence was inadmissible as altering and varying the terms of a written contract of sale and he thereupon rendered judgment in favor of plaintiff.

The decision of the case then depends entirely upon the correctness of that ruling.

The trial judge says in his reasons for judgment:

“The contract of sale carries with it only such warranties as are written in the contract for the purchase of the machine, that is that the machine is in good operating condition, free of mechanical defects and defects in material, and carries the stipulation that no representations by the agent shall be binding on the company, and that the written contract is the entire contract between the parties. Defendant admits that he looked over the contract and had an opportunity to read the same, but that he had confidence in the agent whom he knew well, and relied on his verbal promises and representations as to the machine rather than on the contract which he signed.
“The court, subject to the objection of counsel for plaintiff, admitted evidence in support of all the defenses urged, reserving its ruling as to the admissibility of the same until submission of the case. The court is now of the opinion that this evidence should have been rejected and that the rights of the parties should be determined according to the terms of the written contract. It is elementary law that in the absence of fraud or error no evidence shall be received to vary, alter or contradict the terms of the written agreement. The error or fraud here alleged, is not of such a nature as to admit the evidence to alter the agreement. Mr. Blackwell is a business man of Kentwood, well able to manage his own affairs; it is not a case wherein the court might in its equity jurisdiction reach down and relieve an ignorant man of an unconscionable contract. One who has the ability to protect himself from the lure of a sharp sales-agent and who fails to do so, and deliberately signs a contract which he knows contains different terms from those merely spoken by the agent, and omits warranties that the agent speaks of, has himself to blame. If all conversations, boosting of wares, promises, etc., made before or at the time of the signing of a contract of sale were admissible to alter the written contract, the value of a contract in writing would be destroyed.”

The trial judge who knows the defendant, and saw and heard him testify, was in a better position than we are, to say whether defendant was fraudulently and deceitfully taken advantage of by plaintiff’s salesman. He did not think so and we see no reason to reverse him.

The judgment appealed from is therefore affirmed.


text:
    No. -
    First Circuit Appeal
    J. R. WATKINS COMPANY v. S. A. BANKSTON, ET AL.
    (June 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1'. Louisiana Digest — Appeal—Par. 715, 742.
    Case is remanded to obtain evidence of acquiescence in the judgment where plaintiff filed a motion to dismiss the appeal on the ground of acquiescence.
    Appeal from the Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    This is an appeal taken by defendant in which a motion to dismiss was filed by the plaintiff on the ground of acquiescence in the judgment by defendant.
    Case remanded to obtain evidence of acquiescence.
    Lindsey McDougal, of Ponchatoula, attorney for plaintiff, appellee.
    S. S. Reid, of Amite, attorney for defendant, appellant.
   LECHE, J.

Plaintiffs obtained a judgment against defendants for one thousand seven, hundred and fifty-two 9/100 dollars and defendants have appealed from same.

Plaintiff has filed in this court, a motion to dismiss the appeal on the ground that defendants have acquiesced in the judgment. Acquiescence is a question of fact which can only be determined after hearing evidence, and we are therefore constrained to remand this case in order that such evidence may be adduced. Taxpayers vs. Police Jury of Washington, 120 La. 298, 45 South. 255.

We note that the allegations of the motion to dismiss are not sworn to, but we are not aware that this is an absolute prerequisite.

It is therefore ordered that this case be remanded to the district court, with instructions to receive evidence upon the question of the acquiescence vel non of the defendants in the judgment appealed from.


author: REYNOLDS, J.

text:
    No. 2277
    Second Circuit Appeal.
    JOHN BURKS, FOR THE USE, ETC., v. GLENMORA SERVICE STATION
    (June 23, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest: — Master and Servant— Par. 160 (a) — Estoppel—Par. 24, 26.
    An automobile service station which advertizes to the public that it has a garage run in connection with it is not estopped from showing when sued by an injured employee for compensation under Workmen’s Compensation Act No. 20 of 1914, that the garage is run independently by another person who employs and discharges his own help independently.
    2. Louisiana Digest — Master and Servant— Par. 153, 154.
    Where the evidence in a Workmen’s Compensation case under Act No. 20 of 1914, shows that the- injured employee was working for A who had leased his space from B he cannot recover compensation from B but can only recover from A.
    (Section 1, Subsection 2, of Act 20 of 1914. Editor’s note.)
    3. Louisiana Digest — Appeal—Par. 245; Master and Servant — Par. 160 (I).
    Á demand for judgment in the alternative against B to which B had not answered , at the time of the trial nor had there been sufficient lapse of time to demand a default against B, must remain undisposed of in the Court of Appeal until further proceedings have been taken in the lower court.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. J. A. Williams, Judge.
    This is a suit by a father suing for compensation under the Workmen’s Compensation Act No. 20 of 1914, for the use of his minor son for the loss of an eye.

      There was an alternative demand. There was judgment for one defendant but the demand against the other defendant remained undisposed of. Plaintiff appealed.
    Judgment affirmed.
    B. T. Dawkins, of Alexandria, attorney for plaintiff and appellee.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit by John Burks for the use of his minor son Riley Burks to recover from defendant $9 per week for 400 weeks under the workmen’s compensation law for the loss of an eye by Riley Burks, and for $80 medical expenses incurred in connection therewith.

By supplemental petition Bethal Hall was made a party defendant to the suit and in the alternative the same judgment was asked him as was prayed for against Glenmora Service Station in ' the event the court found that Bethal Hall and not Glenmora Service Station was in fact the employer of Riley Burks.

J. E. Patrick, D. B. Jennings, and S. A. Andries, as partners composing the Glenmora Service Station, filed an answer denying liability on the ground that at the time of the accident to feiley Burks he was not employed by them but by one Bethal Hall.

Bethal Hall made no defense.

On these issues the case went to trial and there was. judgment rejecting plaintiff’s demand as against Glenmora Service Station and suspending judgment on his alternative demand against Bethal Hall on the ground that the default taken against him was not ripe for confirmation. Prom this judgment plaintiff appealed.

OPINION.

The questions to be decided in this case are, whether or not Riley Burks was an employee of Glenmora Service Station at the time of the accident to him, and, if not whether or not Bethal Hall was an independent contractor under Glenmora Service Station.

Plaintiff’s counsel in an able brief, presents many plausible reasons why, as to the general public, Riley Burks should be held to have been an employee of Glenmora Service Station.

Among these are that Glenmora Service Station and Bethal Hall with his garage and repair room occupied the same building, a building 40 by 70 feet in size, with a filling station across the side where Riley Burks worked, the battery room and charging department in one corner of this garage and the accessory and parts room on the other side of the garage. The garage where Riley Burks worked being situated between filling station and the supply room. Across the entire building was a sign reading: “Glenmora Service Station”. It was necessary for persons calling at the office to go through the garage. Every department, including the garage, was under the same roof and used the same doors. That the garage business was held out as a part of the business of Glenmora Service Station in an advertisement in the Glenmora Patroit reading:

“Prepare for Winter.
“Our advice to you, one and all, is to bring that car in and let us overhaul it, before the cold and rainy weather sets in. You will probably need a new top or.new curtains or may be your motor needs a general overhauling. We are prepared to do all this and at a price that you will feel like paying. Our mechanics are the very best and are at your command.”
“Oil and Gas.
“You will find our oil and gas department is on the job from 6 a. m. to 10 p. m. Drive up and toot your horn.
“Glenmora Service Station
“J. R. Patrick, Mgr.”
“Day Phone 96. Night Phone 50-R.”

That the accounts for parts sold and for work done were kept in one set of accounts and bills for these made out on the bill heads of Glenmora Service Station were sent out. That money paid for repair work done was paid to and received by Glenmora Service Station and went into the safe and later into the bank account of Glenmora Service Station. That repair work done on the cars of members of the Glenmora Service Station was done without charge to them. That the money necessary for Bethal Hall to pay laborers working under him , was turned over to him every Saturday night by Glenmora Service Station. That Patrick and Jennings, members of Glenmora Service Station, were in the habit of giving orders to Riley Burks.

These may be good reasons why, as to the general public, Glenmora Service Station should not be allowed to deny that Bethal Hall was one of its employees, but as to Riley Burks these reasons do not apply; for under the arrangements between Glenmora Service Station and Bethal Hall he was to operate the shop on its merits and receive the price of all work done and was to employ and discharge and pay his own help independently of the Glenmora Service Station.

Bethal Hall testified, page 60:

“Q. Now,' was there any secret made of the fact that you were the proprietor of the repair business?
“A. Not in the least, no, sir. Everybody -in town knew it, and they knew it, too.
“Q. Did Riley know that he was being employed by you and not by the Glenmora Service Station?
“A. Yes, sir, he did.
“Q. State some facts to show that he knew that he was being employed by you?
“A. Because I hired him. I always turned him off and he knew I turned in labor and he had learned how to do the same thing and he was present when I went in there to check up and when Patrick gave me my money on Saturday night, Riley was generally always present.
“Q. In handing you the money, did Patrick give you just the exact amount of Riley’s wages, or would he give you the amount that he' had earned and had been collected?
“A. He would give me everything on the cash ticket and if I didn’t have enough on there to pay my expenses, I could borrow on good accounts and still stand responsible for . the amount I had borrowed.
‘‘Q. He didn’t hand you Riley’s wages and you in turn hand it to Riley?
“A. No, sir.
“Q. He gave you what was coming to you out of the cash — (interrupted)
“A. Yes, sir, and I fixed the amount myself and gave it to him, myself.”

Riley Burks testified, page 14:

"Q. You do know that Mr. Cathan had full charge of that repair shop?
“A. Yes, sir.”
Page_ 15:
“Q. At any rate, you know that Hall finally bought Cathan out?
“A. I don’t know whether he bought him out or not. He told me that he was going to take the shop and run it, and if I wanted to work there it would be all right, and if 1 didn’t it would be all right.
“Q. He did take the shop?
“A. Yes, sir.
“Q. And Mr. Cathan left?
“A. Yes, sir.”
“Q. Did you tell him that you wanted to go and work?
“A. Yes, sir.
“Q. And he was the one who employed you?
“A. Yes, sir.
“Q. Cathan first employed you and after Cathan left Hall employed you?
“A. Yes, sir.”
Page 16:
“Q. When you were working under Hall, who gave you the money, the wages? .
“A. He did.
“Q. Mr. Hall?
“A. Yes, sir.
“Q. Did Patrick or Andrew or Jennings ever pay you your wages?
“A. No, sir.”
“Q. Didn’t you tell Patrick gnd Jennings both on a number of occasions that you wouldn’t take any orders or suggestions from them, that you were working for Hall, and that you wouldn’t take any suggestions from them?
“A. I did, but they told me to do things and I worked right on.
“Q. You told them you say that you were working for Hall — why did you say that?
“A. Because he hired me.”
J. E. Patrick testified, page 85:
“Q. Did Riley Burks know that he was getting his orders from Bethal Hall?
“A. He should have known it.
“Q. He was getting them?
“A. Yes, sir he told me several times that he wasn’t working for me that he was working for Bethal Hall.”
Page 90:
“Q. Did Burks have every reason to know that he was working for Hall and not for you all?
“A. Yes, sir. I heard Hall tell him that, and he has told me that he was working for Hall and not for me. When I would call his attention to certain jobs when he would be sitting around there doing nothing, he would say T am not working for you, but for Hall’. He told me that numbers of times.

D. B. Jennings testified, page 101:

“Q. Did Riley Burks know that he was working for Hall?
“A. I would think so. I have- asked Riley to do little things and he told me time after time that he was not working for me.”

Clifford Goree testified, page 117:

“Q. While working there did you have a conversation with Riley Burks relative to his employment by Mr. Bethal Hall?
“A. Riley was in there and we were all asking him about getting his eye hurt and it had been brought up that he was going to sue the Glenmora Service Station, and some of the boys asked him who he was working for, and he said that he was working for Bethal Hall, and that was who he was looking to to get his money.”

From this evidence it appears clear to us that Riley Burks was working for Bethal Hall at the time he met with the accident in which he lost an eye.

As to the second question, the contention of plaintiff that Bethal Hall was not an independent contractor under Glenmora Service Station, we think the evidence makes it clear that the contract between Glenmora Service Station and Bethal Hall was one of lease by which Glenmora Service Station leased to Hall space in its building and furnished free of cost to him services of its bookkeeper and electric light and advertisement as an inducement to get Hall to operate a garage and repair shop in its building as feeder for the oil and gas and automobile parts business conducted by Glenmora Service Station; and under the evidence it is made plain to us that such a contract was entirely reasonable because the sale of oil and gas and automobile parts was highly profitable and the operation of a garage and repair shop in Glenmora was financially hazardous.

Defendant Bethal Hall did not file any answer to plaintiff’s demand against him and though plaintiff had taken a default against him his default was not ripe for confirmation. Hence plaintiff’s demand for judgment against Bethal Hall in the alternative must remain undisposed of until further proceedings are had on that demand in the District Court.

For these reasons, it is ordered, adjudged and decreed that the judgment of the lower court be affirmed.