text:
    No. 3993
    Second Circuit (First Division)
    LOCKE v. SHREVEPORT LAUNDRIES, INC.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    (January '4, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Pugh, Grimmet & Boatner and F. Simon, of Shreveport, attorneys for plaintiff, appellee.
    Blanchard, Goldstein, Walker & O’Qui'n and Mabry & Carstarphen, of Shreveport, and Milner & Porteous and William A. Porteous, Jr., of New Orleans, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff sues to recover damages of defendant for the death of her husband, John Edward Locke, who, it is alleged, was carelessly and negligently run into by defendant’s truck, operated by D. D. Norman, its employee, and killed, on the Coushatta highway about five miles from Bossier City, at the hour of 6:45 p. m., December 29, 1930.

It is alleged by plaintiff that said Norman was traveling at a high rate of speed without keeping a proper lookout; that lights of automobiles coming towards him made it difficult for him to observe the road he was traveling but notwithstanding this handicap he did not slacken his speed, nor did he stop, but continued to travel at a high rate of speed and in so doing drove too far to his right side and struck and killed her husband; that if said Norman had exercised proper precaution when meeting automobiles on said highway at the time said Locke was killed, the tragedy would have been averted.

Defendant admits that Norman was in its employ when the truck driven by him ran into and killed plaintiff’s husband, and admits that at the time of the accident he was operating the truck under and in the course of his employment. In other respects the allegations of the • petition are denied. Defendant further avers that said Locke either stepped suddenly in front of its truck or walked along the road on the right-hand side thereof without keeping any lookout whatever for cars, and, therefore, the accident was not caused by negligence on the part of Norman but by the negligence of the deceased; defendant fiirther pleads that if its driver (Norman) was in any way negligent, which is denied, in that event the negligence of deceased contributed to the accident to such extent that it would not have occurred withodt it, and pleads such contributory negligence in bar of plaintiff’s suit.

The case was tried before a jury which rendered a verdict for plaintiff in the sum of $18,494.50. A motion for new trial was filed and denied. Defendant appealed.

Plaintiff and husband, accompanied by plaintiff’s mother, had been to Ringgold in Red River parish on December 29, 1930, and were returning home in their Chevrolet coach automobile. The night was cold and clear. On account of the water boiling in the radiator the car developed heat to such extent as to interfere with its running. It was stopped at the store of one Joe Peter, five miles below Bossier City, on the concrete highway, and' fresh water put in the radiator, but it could not be again started either by the self-starter or by cranking. Mr. Locke and an Italian boy by the name of Vincent Marsiglia pushed the car up the road the distance of some three blocks and the motor began running. The boy rode the rear bumper to the next filling station, about three miles, and, as the car’s speed was reduced, he jumped off. Mr. Locke was left on the road at the point where the car resumed running. J. B. Brocata, who operates the filling station where the boy jumped from plaintiff’s car, after the lapse of about five minutes, started with the boy down the road, in his car, to take him home and when they were about one-quarter of a mile from Joe Peter’s place they were hailed by Norman who stated that he had run over and killed a man.

Mrs. Locke, the plaintiff, for reasons not entirely satisfactorily explained in the record, left her husband on the road and drove her mother home, a short distance below Bossier City, and returned to look for Mr. Locke. She proceeded down the highway to a point south of where her husband’s body was lying and returned up the road. She saw the body of Mr. Locke but did not recognize it as that of a human being. She rejoined her mother and very soon thereafter learned that Locke had been killed.

Norman, the truck driver, was the only eye-witness to the tragedy. ' He testified that he was driving north at the rate of 30 miles per hour and just before reaching the scene of the accident he observed some automobiles moving south towards him; that the first two of these oncoming cars were running at approximately the same rate as was his truck, the second being behind the first one about 75 feet; that the lights of neither car affected his vision and as he passed the second car he then discovered that a third one was approaching at a distance of from 50 to 75 feet from the second, with very bright lights, and going at the rate of 50 miles per hour. These lights affected his vision to such extent that he could not see beyond the third car and at the moment he passed this car deceased was struck and killed instantly. Norman did not see deceased until his body was hurtled over the right fender' of his truck. He gave no signal of his approach. The lens of the right headlight was broken, the light knocked upwards out of line, the right fender was slightly bent, and a dent in the cowl back of the hood, were the only damages inflicted on the truck as a result of the impact. The truck was brought to a stop 50 feet from the place of collision on the right-hand side of the road. The body of 'deceased was found on the right shoulder of the road, at right angles to it, with head about three feet from the concrete. The glass from the broken lens was deposited on the concrete 15 feet north of the body, while a few drops of blood were seen on the concrete, opposite the head of deceased, some two or three feet from the edge of the road. The lights of defendant’s truck were in good condition and Norman states that they cast a beam that enabled him to see 150 feet ahead, but he did not see deceased until he was struck. He admits that he did not take notice of the side of the road as he moved along but could see the portion of the road where he was going. Brocata testified that Norman said to him, when he had hailed him to stop at scene of accident, “I didn’t see the man until after I hit him on account of the bright lights.” Norman testified that his truck at no time left the concrete road. The record does not disclose the location of the wounds, if any,, on deceased’s body; nor does it establish in which direction he was going when killed, if moving at all. It is not shown whether the place of accident was above or below the spot where his car left him after being pushed. Norman stated that as he was meeting these three cars he disengaged the clutch of the truck and pressed the service brake slightly, but in view of the fact that the truck traveled fifty feet after the accident before being stopped indicates very strongly that his rate of speed had not been reduced appreciably. The truck’s mechanism was so adjusted that it could not run more than 35 miles per hour and it is shown that if moving at the rate of 30 miles per hour it could be brought to a stop within 35 feet.

The effect brilliant lights of an approaching automobile have on the vision of one operating a car meeting it is well and generally known. For an appreciable period it is impossible to discern objects beyond you and especially if on the right-hand side of the road. The duty of an operator under such conditions is well defined by law and the rule is supported by reason and common sense.

The evidence leaves no doubt in our mind that Norman, as the automobiles approached him, did what many drivers do under like circumstances. He continued moving at about the same rate of speed and presumed his line of travel to be clear. Under the conditions confronting him at the time it was his duty to either stop his truck or bring it under such control as to enable him to stop it instantly, until the momentary danger had passed. On the other hand, if his failing to see Locke on the roadside was not due to the lights of the approaching cars, it follows as a logical deduction, since his own lights were good, that he was not keeping a proper lookout for pedestrians, and did not see that which he could, and should, have seen, under the circumstances. In either case there is liability of his employer.

“It is gross negligence for the driver of an automobile to run his machine on a city street when the mist, rain, and blinding headlights of another car made it so that he could not see.” Ward v. Donahue, 8 La. App. 335; Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194; Pepper v. Walsworth, 6 La. App. 610.

“Failure of mbtorist, blinded by headlights, to reduce speed of 30 miles an hour held proximate cause of collision with parked truck.” Woodley & Collins v. Schusters’ Wholesale Produce Co., 170 La. 627, 128 So. 469.

“He will be presumed, in case of accident, to have seen what he should have seen in the performance of his duties.” Kelly v. Schmidt & Zeigler, Ltd., 142 La. 91, 76 So. 250.

An endless list of authorities could be cited sustaining the principles enunciated in the decisions above cited, but we deem these sufficient.

Deceased had the legal right to travel on the concrete highway and had the right to assume that operators of automobiles would observe the law and rules of the road and keep a proper lookout for pedestrians. Act No. 296 of 1928, secs. 4, 5, 19, 20, 50, 52; Pepper v. Walsworth, 6 La. App. 610; Kelly v. Ludlum, 9 La. App. 58, 118 So. 781.

“One who walks on the street near the curb because of the lack of sidewalks is not guilty of contributory negligence if he is hit by an automobile merely because of his being on the street. Pedestrians have the same right to the use of public streets as motorists.” Ward v. Donahue, 8. La. App. 335.
“One who walks along a roadway does not have to maintain a lookout for automobiles approaching from his rear.” Kelly v. Ludlum, 9 La. App. 57, 118 So. 781; Jacoby v. Gallaher, 10 La. App. 42, 120 So. 888.

Defendant contends that inasmuch as the deceased was walking on his right-hand side of the road, when killed, in violation of the highway law (Act No. 296 of 1928, sec. 20), his own conduct in this respect was the proximate cause of the accident and his own contributory negligence bars recovery.

This contention could be quickly disposed of with the statement that the evidence does not disclose in which direction deceased was traveling when killed. The place where he was killed was about one-quarter of a mile from Joe Peter’s store and it is shown that plaintiff’s car was pushed some three blocks from this store when it commenced to run, and where deceased was left. It therefore follows that deceased had not traveled far, and had probably stood still, during his wife’s absence awaiting her return for him. The mere fact that deceased was guilty of some negligence does not necessarily bar recovery unless such negligence was the proximate cause of the injury. Pepper v. Walsworth, 6 La. App. 610.

It has often been held that it is negligence for one to leave his automobile parked on a street without lights thereon, but it does not follow that one doing damage to the parked car can escape the consequences of his own act when the injury was occasioned by active negligence, such as failure to keep proper lookout or running at an excessive rate of speed in dust, mist, or in the face of blinding lights of another automobile.

It is almost certain Mr. Locke did not know Norman’s truck was approaching him from the rear (assuming that he was going north), because the lights of the cars coming from the north illuminated the surroundings so that the reflection from the lights of the truck did not attract his attention; and, again, the gears of the truck were disengaged, according to Norman’s testimony, thus eliminating the noise usually caused by an engine running in gear.

It is obvious, that had Norman observed the mandatory requirements of the highway law his truck would not have run into and killed Locke; and the fact that Locke may have been on the wrong side of the highway was not the proximate, but a very remote, cause of the accident.

The vicinity about the spot where Locke was killed is thickly settled on both sides of the highway and this condition obtains into Bossier City, five miles distant. Filling stations and stores are quite numerous. Norman was well acquainted with the highway and frequently drove over it for his employer, the defendant, gathering and delivering laundry. He knew, or should have known that in the' winter time, when the shoulders of the. road were wet and cold, pedestrians used the concrete highway to travel on. Every reason was present to impress him with the importance of exercising ultra-precaution to avoid possible collision with people or stock that might be upon the road at night, and at the first appearance of danger he should have adopted the. course necessary to insure safety to himself and to others.

“The chauffeur of an auto truck, driving over that portion of a public highway which is ordinarily used by vehicles going in the opposite direction, must keep a very vigilant watch, ahead for vehicles and pedestrians. He should signal his approach as a warning; and, when it is dark, or nearly so> the lights on his vehicle should be burning. He should proceed slowly and cautiously; and, at the first appearance of danger, he should take proper steps to avoid it, and, if necessary, stop his machine, and even the motor, when it is necessary and practicable. He will be presumed, in case of accident, to have seen what he should have seen in the performance of his duties.” Kelly v. Schmidt & Zeigler, Ltd., 142 La. 91, 76 So. 250.

Deceased was 47 years old when killed, and had a life expectancy qf 23 years and eight months. He and plaintiff were married in the year 1909. There is no issue of their union. His health was good. It appears that he was not successful in business on his own account, though, at times, received good wages for his services to others. When killed he and plaintiff were operating together a business that averaged them approximately $150 per month profit. He left no property and carried no insurance. Plaintiff depended upon the advice and guidance of deceased during their marriage and had only a limited experience in business - affairs.

It appears from the evidence that Mr. Locke and plaintiff- lived happily together; that their married life was practically free from quarrels _ and unpleasantness; that they enjoyed the companionship of each other and were almost constantly together. Plaintiff’s grief at the loss of her life companion is clearly shown to be great. She has no means. of a livelihood save from her own efforts.

The jury that tried this case gave plaintiff judgment for- an amount we think excessive. All things considered, we believe this judgment should be reduced to $10,-996.50. This amount gives plaintiff $10,000 net. The balance will cover the cost of burial expenses of deceased.

For the reasons herein given, the judgment appealed from is amended ,by reducing it to $10,996.50, and as thus amended, it is affirmed. Costs of appeal to be paid by plaintiff; all other costs to be paid by defendant.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 4134
    Second Circuit (Second Division)
    FRENCH v. WEAVER BROS. ET AL.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)

      E. G. Prudhomme, of Natchitoches, attorney for plaintiff, appellee.
    Breazeale & Hughes, of Natchitoches, attorneys for defendants, appellants.
   CULPEPPER, J.

Plaintiff sues *o recover compensation in the sum of $9.75 per week for thirty weeks for the alleged total loss of use of the index finger on his left hand; also the additional sum of $9.75 per week during 150 weeks for alleged injuries to his left hand, arm and shoulder. The injuries complained of were alleged to have been sustained while employed by defendant as a saw filer at defendant's sawmill at Flora, in Natchitoches parish, on December 2, 1930. He was receiving a salary of $150 per month at the time of the accident.

Defendant admits plaintiff received a slight temporary accidental injury to his index finger at the time and place alleged, and while engaged within the scope of his employment, but denies the injury was permanent. Defendant further avers as a special defense that shortly after the alleged injury defendant gave plaintiff employment again at the same occupation and at an increased wage. The reason defendant increased his wages was that defendant operated its sawmill only two or three days a week, and that for several weeks plaintiff continued to perform the same work he had previously performed, and at the increased wage of $7 per day for every day the mill operated, until plaintiff voluntarily quit his job.

Upon the trial of the case plaintiff was awarded a sum equal to 65 per cent of $7 per day for 12 weeks, beginning December 2, 1930; also awarded $13.98 per week “for the remainder of eighteen weeks.” We take it that the judge intended the total award to be for 30 weeks from the date of the accident and resulting injury, the first 12 weeks to be for say $13.65 per week, being on the basis of a monthly salary of $210, and the remaining 18 of the 30 weeks was to be for the exact sum named, $13.98. We do not understand just how the trial judge arrived at the exact figures $13.98. Defendant alone prosecutes the appeal from the judgment. Plaintiff has not .answered the appeal.

There is no dispute as to the fact of the employment and that the injuries received arose out of and were incidental to the employment, also that plaintiff was at the time, and had been for some months prior, engaged as a saw filer for defendant at a monthly salary or wage of $150. Plaintiff asks for compensation on the basis of this amount of monthly salary.

The main facts in dispute are as to the extent of the injuries and resulting disability. While plaintiff’s duties were that of a saw filer, the testimony shows that at the time of his injuries he was assisting Mr. “Rachal,” the millwright, to do some repairs on the mill. Plaintiff was holding a board out of the way while Mr. Rachal was striking a brace with a 12-pound sledge hammer, and the hammer struck plaintiff on his finger and “edge of. the hand.” P’aintiff testifies that his whole hand became swollen to the “size of a baseball glove” and that as a result he 'could not use his hand nor arm on account of the soreness. He went- to Dr. 'Keator, the defendant company’s physician, who treated him. Some four days later an x-ray photograph of the injured hand was taken which revealed a lineal fracture of the phalanx bone of the left index finger. The joints themselves appear normal. It seems clear, as testified to by all of the physicians, except possibly one, that there should be 'no permanent stiffening of the joints, and that in course of time plaintiff will have completely recovered the normal use of his finger. Dr. Keator gives it as his opinion that within seven or eight months from date of injury the finger should become perfectly flexible, if plaintiff should continue to massage it as the doctor had prescribed five or six months from date of injury. Dr. Phelps places the duration of time at teu months. Dr. Reed states that where there are no complications one should expect complete recovery in four to six months. Dr. Reed says the degree of flexibility at time of the trial, April 16, 1930, is hardly half in the whole finger, the finger slightly emaciated, and that the results from now on are going to depend largely on his (plaintiff’s) own way of treating the finger. There is a way uf bringing the finger back to a normal condition “by persistent massaging and persistent manipulation of the joint.’’ Dr. Derouen is of the opinion that the injury will result in the permanent loss of use of the finger.

As to the percentage of • impairment or disability during the period of recovery, the physicians estimate it variously from 10 to 30 per cent. The physicians all seem agreed that there is no impairment to the hand, arm and shoulder, but that the injury is confined to the finger only, and is only partial.

Payment of compensation for total disability due to the injury to plaintiff’s finger during, the period of such total disability would suffice for the disability from any other injury than that of the finger, such as the hand, arm or shoulder. Plaintiff was injured December 2, 1930, and went back to work January 11th following. This would make a total disability period of - 34 work days, not counting holidays other than Sundays. He is therefore entitled to 65 per cent of the amount of his weekly wages during this 34 days of total disability. To arrive at what this will amount to, we divide his monthly salary of $150 by 26, the generally recognized number of work-days in a month, in order to ascertain the average daily wage, and multiply the daily wage by six to find the sum of the weekly wage; then take 65 per cent pf that sum to obtain the amount of the weekly compensation for this period of total disability. The result will show an amount in excess of $20, which, under the act, will be reduced to $20 as a maximum compensation. There are five and two-thirds weeks embraced in these 34 days. Therefore, plaintiff is entitled to a weekly compensation of $20 per week for a period of five and two-thirds weeks for total disability. The trial judge has granted compensation for a total period of 30 weeks, as we construe the language of his judgment. Deducting five and two-thirds weeks of total disability from thirty would leave twenty-four and one-third weeks during which plaintiff would be entitled to compensation for partial disability. The district judge apparently estimated the amount to cover partial disability at $13.95 per week. We do not know on just what basis this amount was arrived at.

As to the amount of partial disability, we think it fair to say, from the evidence, and from the fact that the trial judge gave compensation for only 30 days, that this partial disability was temporary. The case then comes under section 8, subsection 1(c) of the act (Act No. 242 of 1928, p. 357), if the proof be sufficient to warrant the finding that the partial disability be great enough to prevent plaintiff from doing work of a reasonable character. Subsection 1(c) provides that:

“Fob injury producing partial disability to do/ work of any reasonable character, sixtv/five per centum of the difference between wages at the time of injury and wges which the injured employee is able -to earn thereafter during the period of disability, not, however, beyond three hundred weeks.”

Plaintiff was earning $150 a month at time of the injury, which according to our calculation equaled $5.77 per day. Mr. B. D. Weaver of defendant firm testified that he continued to carry plaintiff on the payroll up until December 10th after the accident on December 3rd, but he does not state he paid plaintiff during that period. Mr. Weaver also states that the mill was closed down on the 10th of December on account of the general business depression and did not start up again until January 12th, and that plaintiff, having recovered, returned and began work when' the mill started. Both plaintiff and Mr. Weaver agree that they entered into an agreement at the time by which plaintiff was to be paid $7 per day for each day the mill ran; that this change in the compensation was had in view of the fact that it was Mr. Weaver’s intention to operate the mill only part time, and not regularly. The proof shows that plaintiff worked each day the mill operated on through January, February and up to about March 9th, when plaintiff says himself he quit because' Mr. Weaver would not settle with plaintiff for the insurance. which he claimed Weaver owed him. . Plaintiff admits he performed his work just as he had done previous to his injury. He makes no claim in his testimony that he was unable to do the work. Mr. Weaver testified that plaintiff performed his work satisfactorily. No one has testified that plaintiff ever complained that he was unable to work or that he had to work with difficulty, except plaintiff himself. He said his injured finger and hand pained him at times when he worked, and that he complained a number of times to some of those about the mill. The fact remains, however, that plaintiff did perform every day the mill ran, the same work he performed before he was injured, and that he received $7 per day instead of $5.77 per day, as wages under the special agreement with Mr. Weaver above mentioned.

To all intents and purposes, and appearances, plaintiff felt himself able and was able to, and did, perform these same services that he had performed before, and with equal efficiency. No doubt he experienced some pain and discomfort at times in doing so. His daily wage while the mill was in actual operation, and he had the opportunity to work, exceeded his previous daily wage, and he apparently was as well able to perform the work as before.

In Lasyone v. Grant Timber & Mfg. Co., 2 La. App. 522, the court held that:

“Where the proof shows partial disability, employee is entitled as compensation to the difference between his wages at the time of injury and the wages he is able to earn thereafter, and as the proof shows that his wages after the injury are equal to those before, nothing can be awarded.”

In Reeves v. Dietz, 1 La. App. 501, the court held that:

“In determining the amount of compensation in cases involving a partial disability the phrase ‘is able to earn thereafter’ does not mean the maximum sum earned in any one week but a fair average of the weekly wage an employee is able to earn covering a sufficient period of time to determine his earning capacity.”

We think it clear that the fact that plaintiff was able to hold his job from January 11th to March 10th and to perform his work without apparent difficulty, except possibly for some pain and discomfort at times, with satisfaction both to himself and to his employer, is conclusive that he was able to earn, and in fact did earn, as much as he had before the injury. Chancellor v. Continental Lbr. & Tie Co., 6 La. App. 370.

In Barnes v. American Can Co., 7 La. App. 597, the court held that—

“A partially disabled employee can recover only for the difference in wages earned before and after the accident, even though work is done with considerable pain and he must show by a preponderance of evidence the financial loss sustained by him as a result of the injury.”

Plaintiff sustained no financial loss by reason of the injury. On account of the general business depression the mill operated only part time after plaintiff was able to go back to work, otherwise he doubtless would have held his job at his former work or salary. The fact that plaintiff could not put in enough time to amount to his original $150 per month was due not to plaintiff’s injuries, but to the general business depression. Plaintiff received just as much daily wage after his period of total disability ceased as he would have if the accident had never happened. It is true his earning ceased on March 10th, hut that was because of his own voluntary act and fault, for he could easily have continued to hold his job at the same rate of pay, and could have performed the work as he had done before.

Plaintiff did not lose his finger, nor the permanent total or partial loss of its use. Its usefulness is not seriously permanently impaired. After his temporary total disability ceased, he had no partial disability to do work of a reasonable character, by reason of the fact that he again resumed and performed, satisfactorily to himself and to his employer, the same work as before and at a better rate of daily wage.

The judgment of the lower court is therefore annulled and set aside; and there is now judgment in favor of plaintiff, T. L. French, and against Weaver Brothers Lumber Company, and the individual members thereof, viz.: S. P. Weaver and T. L. Weaver, in the sum of $20 per week for a period of four and two-thirds weeks beginning December 9, 1930, one week after date of injury, together with legal interest on each weekly sum from its respective date of maturity until paid; defendants to pay costs of the lower court and plaintiff to- pay costs of appeal.


text:
    No. 4023
    Second Circuit
    DOLLAR v. SOUTHERN STATES CO., INC.
    (July 14, 1931. Opinion and Decree.)
    (November 18, 1931. Rehearing Refused.)
    (January 4, 1932. Writ of Certiorari and Review Refused by Supreme Court.)

      J. Norman Coon, of Monroe, attorney for plaintiff, appellee.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellant.
   DREW, J.

This is an action brought under the Workmen’s Compensation Law of Louisiana (Act No. 20 of 1914, as amended). The plaintiff, an employee of the defendant, a Louisiana corporation with its domicile in Shreveport, Caddo parish, La., was injured by the overturning of a loaded truck that he was driving on the road between Choudrant and Monroe, some.-thing less than a mile north of Choudrant, in Lincoln parish, on May 3, 1930, at about the hour of 8:30 p. m.

At the time of the accident, plaintiff was in the employ of defendant and driving an automobile truck loaded with equipment for drilling oil and gas wells, - defendant being engaged in the work of drilling and -operating gas. wells in Rich-land parish, La. While driving his loaded truck along the graveled road in the dark of the night and on down-grade, in some way the driver lost control of the truck and it ran into the ditch on the roadside, and turned over; plaintiff being thrown underneath the truck and pinioned -to the ground, and remaining there until he was rescued by outside help.

The injuries alleged to have been suffered by him from the said accident were as follows: Fracture of the left clavicle (collar bone); a curved, lacerated wound one inch above the right eye; a lacerated wound three inches long, beginning at a point three inches above -the right eye and extending backward on the top of the head, just to the right of the middle line of the head; a fracture of the nose; a severe lacerated wound-three inches long just beneath the right eye and connecting with the nose at the place of fracture; a lacerated wound of the first finger of - the right hand, the laceration involving the cavity of the second joint; general contusions over the entire body; extensive and noticeable scar tissue about the face and head, causing serious, and permanent disfigurement; the injury to the finger causing stiffness in the joint and inability to close the finger.

Plaintiff further alleges fhat by reason of the injury to his nose, there has developed in his nostrils a growth which causes a noise similar to that of snoring every time he breathes through the nasal' cavity, which growth has constricted and narrowed the nasal cavity to such an extent until it now has made it almost impossible for him to breathe through his nose; and that by reason of his said injuries, a neuritic condition has developed in his arms and shoulders, and is threatening to extend, and will become more serious and remain permanent, and has caused him to lose the proper and normal function and use of said organs; that his said injuries, have caused him to be in a weakened and nervous condition, and rendered him totally and permanently disabled from doing any kind of work of any nature or description. .

Alleging his injuries to be permanent and to totally render him unable to do any kind of work, plaintiff claims compensation for a period of four hundred weeks, at the rate of $20 per week, payments to begin May 10, 1930; and he also asks for $250, for surgical, medical, and hospital services.'

The answer of defendant admits, that plaintiff was in the employ of defendant at the time of the injury complained of, at the wage rate alleged in the petition; admits the overturning of the truck as alleged, and that plaintiff received an injury in the said accident; but alleges that the said injury was slight and not serious and that plaintiff has recovered from it; it denies that said injury incapacitated plaintiff for performing his usual and ordinary labors. Defendant further alleges that at the time of the accident, plaintiff was. under the influence of intoxicating liquor, and was intoxicated, and did not have such control of his faculties as would permit him to safely operate a motor vehicle, all of which was unknown to defendant, and that the overturning of the truck was caused by the intoxicated condition of plaintiff, which he alleges precludes plaintiff from recovering; and he pleads the same in bar of plaintiff’s recovery.

On these issues, .the case went to trial, and there was judgment in the lower court in favor of plaintiff for the sum of $20 per week for a period of one year, from which judgment defendant has appealed, and plaintiff has answered the appeal praying that the judgment be increased to four hundred weeks.

There is no dispute on the defendant’s part of .the fact of the injury sustained by plaintiff and of plaintiff’s employment by defendant at the time of said accident, but there is. dispute by defendant as to the extent, the seriousness, and the permanency of- the said injuries, and the liability of defendant for compensation because of said injuries..

Defendant denies liability for the alleged reason that plaintiff was intoxicated from alcoholic liquor at the time and immediately previous to the accident, and claims that said intoxication was the cause of the accident and plaintiff’s, consequent injury.

The case resolves itself down to the pivotal question: Was plaintiff intoxicated at the time of the accident, and, if so, was his intoxication the proximate or sole cause of the accident?

Defendant offered the following evidence on the question of the intoxication of plaintiff:

Mr. Leonard Green, of Jackson, Miss., who testified that plaintiff was pretty drunk about dark when he stopped at a filling station just out of Ruston. Plaintiff asked the way to Monroe, and Green wiped off his windshield and put water in the radiator, for which plaintiff thanked him. Green smelled whisky on plaintiff’s breath and said plaintiff was very quiet amd looked as though he was about to go to sleep — was “droll-like.” There was nothing unusual about plaintiff’s talking and he drove the truck away from the station all right, there being nothing noticeable about the way he drove. He saw plaintiff just after the accident and heard him say to be careful to those who were placing him in the car to carry him to the sanitarium. Because plaintiff looked sleepy, and the smell of whisky on his breath, caused the witness to think he was drunk. There was nothing unusual otherwise about his actions.

John E. Ford, a boy eighteen years of age, who rode in the car with plaintiff from the scene of the accident to the sanitarium, taid he could smell whisky slightly at times, and that there was no action from plaintiff to indicate that he was intoxicated, and he did not think he was.

Roy Dorman, who also rode to the sanitarium in the car with plaintiff, testified that he could smell whisky very slightly at times, and that plaintiff did not appear to be intoxicated, and his conduct was not that of an intoxicated man. He testified that plaintiff talked sensibly and wanted to be taken to Monroe and asked that his wife be called. He asked them to get a doctor quick and for Dorman to take his pocketbook out of his pocket and give it to him after arriving at the sanitarium.

Clarence Brewster testified that when plaintiff stopped at the filling station just out of Ruston that there was something the matter with him. He asked the direction to Dubach and then the direction to Monroe. Brewster was within three feet of plaintiff and did not smell whisky. Said plaintiff drove off all right, nothing unusual about his driving, was dressed in a suit of common oil field worker’s clothes, and that he could not positively identify plaintiff as the man whom he testified about, but thought it to be the same man.

N. B. Ford, testified that Brewster- said that plaintiff was drunk: He, himself, did not see the plaintiff.

Guy Braswell, deputy sheriff, saw a truck passing through Ruston bump into a car on the streets of Ruston; he did not attempt to say it was the plaintiff.

W. V. Tomlinson was in the car that carried plaintiff to the sanitarium and did not smell whisky until arriving at the sanitarium, then smelled it very strong.

This is the entire testimony offered by defendant on the question of the intoxication of plaintiff, with the exception of the admission of plaintiff that he took one drink of prescription whisky about one mile out of Minden about four-thirty that afternoon, and the statement made by his co-worker, Dupree, who was driving another truck of defendant, while in jail at Ruston, and in answer to queries by the representative of the insurance company, that he and plaintiff had- taken several drinks of prescription whisky that afternoon.

The witnesses offered by defendant who were closest to plaintiff and who rode with him some eight miles to the sanitarium all testified that he was not intoxicated, and showed no indication of intoxication. He talked rationally and acted rationally. Several witnesses, who testified that plaintiff was intoxicated, merely expressed an opinion based on the smell of whisky and his sleepy appearance. They fail to relate any action of his that would indicate that he was intoxicated or anything that he'' said that would indicate that he did not have his full faculties. They all testified that there was nothing unusual about his driving.

The mere opinion that a man is drunk because of the smell of whisky on his breath, without showing anything unusual in his talk or actions, is very weak evidence.

Plaintiff had been driving an overloaded truck for seven or eight hours. It had no brakes on it, had broken down once, and, no doubt, he was very tired, and it was not unusual for the witnesses who saw him and smelled the odor of whisky about him, to think he was drunk.

The witness • Clarence Brewster’s testimony is of little value. He would not positively identify the plaintiff as the man he saw the night of the accident whom he thought was drunk, and was evidently mistaken, as he said the man he was. testifying about was dressed in dark, oil field worker’s clothes, and it is shown that plaintiff was .dressed in a blue coat, a blue st'arched shirt, and a Stetson hat.

The only positive testimony as. to plaintiff’s intoxication, and that is only the opinion of the witnesses, without any action or words of plaintiff to substantiate the opinion, is that of' Leonard Green, and the judge of the lower court seems to have based his finding of fact upon this witness’ testimony. The lower judge speaks of the disinterestedness of the witness Leonard Green. The evidence shows that at the time he gave his testimony, he was living in Jackson, Miss., and that he came back to Monroe especially to have his deposition taken in this case; the defendant paying the expenses of the trip. Regardless of whether or not he was interested in the outcome, his testimony, without giving more reasons for his conclusion, is of very little value. •

Without considering the testimony of plaintiff in rebuttal of defendant’s testimony, we think defendant has failed to sustain its defense of drunkenness on the part of plaintiff, or intoxication to such a degree as would bar him from recovery, as set out in the Workmen’s Compensation Law of Louisiana.

Plaintiff, however, offered the testimony of D. S. Futrell, who helped plaintiff to get out from under the overturned truck and also helped put him in the car to be taken to the sanitarium. He did not smell whisky on plaintiff’s breath; he asked plaintiff his name; for whom he was working and where he wanted to go; to which he replied, “A. E. Dollar,” named the defendant as his. employer, and asked to be taken to the sanitarium at Monroe.

When they tried to get the truck off -of plaintiff, he asked them not to rock the truck as it was punching him in the eye. He talked rationally and normally, and there was no indication of intoxication.

Spencer Brewster, who helped the witness Futrell, testified the same as Futrell, and Mrs. D. S. Futrell corroborated in full their testimony.

Dr. Marvin T. Green, the doctor who attended plaintiff immediately after the accident, testified that by looking for it, he could detect the odor of whisky; that plaintiff was not intoxicated so as to affect his thinking power or muscles. He did not wash plaintiff out, as was usual in the treatment of drunken patients. He did not consider him drunk.

Mrs. V. R. Andrews, the nurse who attended him immediately after the accident, did not smell whisky on the plaintiff; he was perfectly rational; asked ior> the best doctor that he might be properly taken care of, and asked that his wife be notified.

Any suspicion of intoxication that, might have been raised by the testimony of defendant’s witnesses is wiped out by the testimony offered by plaintiff’s witnesses, together with the three defense witnesses who carried plaintiff to the sani-, tarium.

The Workmen’s Compensation Law of Louisiana (Act No. 20 of 1914, sec. 28, subd. 2), places the burden of proving the defense of intoxication upon the defendant and, in this case, the defendant has failed to discharge that burden and its defense of intoxication falls.

We have great respect for the ability and the fairness of the learned judge of the lower court who passed on this case and hesitate to overrule his finding of fact, but the testimony in this case convinces us that his opinion is clearly erroneous, wherein he found that plaintiff was intoxicated to such an extent as to have lost the use of his faculties.

The car plaintiff was driving was overloaded and, without brakes, and the evidence shows that between Ruston and the place of the accident, there are a number of very sharp curves that plaintiff made without accident, much sharper than the curve where the accident happened. The place where the accident occurred was at the foot of a not very steep hill, which plaintiff had just descended. At that point, the road curves to the left, and the evidence shows, that the truck had gone about fifteen yards into the curve when it left the road and went over the embankment. This was- a detour road, due to the paving of the Dixie-Overland Highway at that time, and the record shows that only a few weeks before the accident much loose gravel had been placed on the road at this point and, as one witness puts it, “.there was about four inches of loose gravel on the road at the place of the accident.”

Plaintiff described .the truck and load as follows:

“I was going up the hill and had such a load on my truck, and when I would hit a rough place, the front end of my truck would jump up and the weight was on the back end and you would have to back up, and no brakes * * * after I got on top of the hill and the loose gravel it flew up in front and went down the road with me and straight down the bank and overturned.”

He further testified that when the front, wheels hit the loose gravel, they went right out of .the road and knocked the truck out of his control.

Plaintiff was pinned beneath the truck, where he remained for about fifteen minutes before he was extricated and carried to the Ruston-Lineoln Sanitarium, at Ruston, where he remained for .twenty-three days. At the time he entered the sanitarium, he was in a state of shock and collapse; had general contusions, marked lacerations on the face and junction of the nose and face, with dirt, grit, and dust ground into them, and .the blow on the nose caused severe hemorrhage and abrasion. The index finger on the right hand was lacerated, a gaping ’wound and swelled. An X-ray taken immediately afterwards disclosed . an irregular fracture involving the angle of the right scapula (right shoulder blade). The nose was greatly disfigured; a scar extending down the side of the nose, the nose being fractured across the bridge and entirely laid over to one side, and one could look into the nasal cavity. The septum was all broken and torn open.

At the time of trial in the lower court, plaintiff had developed neuritis in his shoulder; his finger was permanently stiff,, he n'ot being able to close it. The septum, the middle portion of the nose, is. markedly deviated, and a separation of the septum, and the two edges do not approximate; there is an overlapping, and the doctor said;

“I can put a probe up one side of the nose and make it come out, — commonly known as a hole in the septum.”

There is a dividing obstruction, in the entire upper half of the nose from the point of separation. Plaintiff cannot breathe normally through the nose and the condition of the nose is permanent. In breathing, he has none of the aerating functions, the air passing through the lower respiratory channels instead of over the three, turbines which moisten and purify the air.. He necessarily, has to .do most of his breathing . through his mouth. The frontal sinus is affected and any amount of exercise causes headaches and his nose to bleed.

The consensus of opinion of the doctors testifying is .that an operation will be necessary to afford plaintiff any relief; that’ if successful, he will be relieved, otherwise, not; and that it would be a very dangerous operation.

We know of no authority by which plaintiff could be required to undergo such an operation. It is a matter left entirely to him.

The consensus of opinion of all the doctors is that he is not totally, permanently disabled, but that he is permanently, partially disabled to follow his usual line of work, and he should have judgment accordingly.

Plaintiff is indebted to the sanitarium, nurses, and doctors for more than $250, for services rendered on account of the injuries received in this accident, and should have judgment for the sum of $250 to cover same. Although plaintiff is only partially disabled, the record fails to show what his earning capacity is now. We therefore think that he is entitled to the sum of $20 per week for a period of disability not to exceed three hundred weeks. Wunderlich v. Simpkin, 5 La. App. 35; Hedrick v. W. K. Henderson Iron Works & Supply Co., 5 La. App. 15; Wm. M. McMullen v. La. Central Lbr. Co., 3 La. App. 562.

Our finding in this case makes it necessary to redraft the judgment of the lower court. It is therefore ordered, adjudged, and decreed that .the plaintiff, A. E. Dollar, do have and recover judgment against defendant, Southern States Company, Incorporated, in the full sum of $20 per week, for a period of disability not to exceed three hundred weeks, with 5 per cent per annum interest on each payment from the date same is due, payments to begin May 10, 1930; and for the further sum of $250 for surgical, medical, and hospital services; and for all costs of both courts.


author: DREW, J.

text:
    No. 4170
    Second Circuit
    GROBER v. GRACE LOGGING CO.
    (November 18, 1931. Opinion, and Decree.)
    (December 9, 1931. Rehearing Refused.)
    Harry V. Booth and George W. McSween, of. Shreveport, attorneys for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, attorney for defendant, appellant.
   DREW, J.

Plaintiff sued under the .Workmen’s Compensation Act of Louisiana (Act No. 20 of 1|914, as amended) for sixty-five per cent of his weekly wage for a period of four hundred weeks, beginning October 1, 1929, less twenty-eight weeks alleged to have been paid by defendant.

He alleged that while in the employ of defendant, as a “swamper,” and when on his way to the place of work in the woods, the mule which he was riding stumbled and fell, throwing plaintiff to the ground, thereby injuring his back, backbone, ligaments, muscles, nerves, joints, shoulder, and hip, all on the. left side of his body, and that said injuries have rendered him permanently disabled to do any work of a reasonable character.

Plaintiff further alleged that defendant paid his. doctor’s bills and compensation for twenty-eight weeks, but refused to pay any longer; and that his weekly wage was $15 per week.- He prays for judgment accordingly, and for $250 additional for medical, physicians’ fees, hospital bills, and other expenses incurred.

Defendant, in answer, admits that plaintiff was in its employ", that his wages were $15 per week, and that at the time of the alleged injury plaintiff was. acting within the scope of his employment. It denies that plaintiff was injured or that he was thrown from the mule when it stumbled, and • alleges that plaintiff was suffering from a chronic “back trouble” of old standing, and the alleged fall did not in anyway aggravate the old trouble, which it alleges to be a “disease of the spine of a medical nature.”

Defendant further alleges that on account of the “back trouble” plaintiff was forced to cease work on May 17, 1929, and was not able to resume work until September 18, 1929, at which time he was given a lighter job. It further avers that “plaintiff was faking an injury on the alleged date”; that he was suffering with the trouble long before the date of injury, and is using that as a pretext for extortion.

The lower court rendered judgment in favor of plaintiff for $9.75 per week for three hundred weeks, less the twenty-eight weeks previously paid by defendant, payment to begin as of October 1, 1929, with five per cent per annum interest from date until paid, and fixed the fee of the expert witness, Dr. Bond, in the amount of $10. Prom this judgment, defendant has appealed, and plaintiff has answered the appeal praying .that the judgment be amended by increasing the number of weeks from three hundred to four hundred.

Under the pleadings, the only questions of fact to be determined by this court are:

(1) Was there an accident as alleged by plaintiff, and was he injured by said accident?

(2) Was plaintiff suffering from a chronic disease before the accident, and, if so, did the accident and injury received aggravate or accelerate the disease?

The undisputed testimqny is that the mule which plaintiff was riding stumbled and fell to its knees, its hind parts being held up by a sapling, and the great preponderance of testimony is that plaintiff was thrown from said mule to the ground; and that he remounted the mule and proceeded to the place of work. He only" remained on the job a short while when his suffering became so intense that he ceased work and went to his boarding house. Plaintiff then notified the manager, who sent a doctor to see him. After four or five days, the manager of defendant company sent plaintiff to his daughter’s home in Haynesville, La., where he was treated by Dr. Bond, at the request of defendant. He remained in bed for three weeks, and since that time has. not had the use of his left arm or shoulder, and suffers constantly with his hip and back, being forced to walk in a sidewise and stooped position; cannot dress himself without pain, and is wholly incapacitated to do work of a reasonable character.

The attempt to prove that plaintiff’s condition was caused by disease, resulting from bad teeth and pyorrhea, we think has failed. It is true • that he ceased work on account of sickness on May 17, 1929, and did not return to work until about twelve days before this accident, but the testimony is that he was suffering during that time from a stomach trouble. He had pyorrhea prior to the accident, but all of his teeth had been removed before the day of the accident, and the whole testimony shows that, prior to and on the very day of the accident, he was able to use his arms and body as well as any average man, and performed his manual labor without effort. Immediately after the accident, plaintiff became disabled, and has not been able to work since.

The principal witness for defendant is Dr. Peters, who on cross-examination said that he based the answers to the questions propounded to him on the theory that he was not injured by being thrown from the mule, but merely stepped from the mule, after it had fallen. The condition upon which his answers were given being false, Dr. Peters’ testimony is therefore of no effect.

Plaintiff was sixty-three years of age, and it would take less of a fall to injure him than it would a younger man. It is proved that he had the fall from the mule and was unable to work thereafter, was able to work up to that very time; therefore, if we should assume that he had a focal infection, it had not advanced to that stage where it would incapacitate him from work, and the fall immediately producing incapacity clearly shows that such disease or infection, if he had any, was aggravated and accelerated by the fall to such an extent that he is entitled to compensation.

The lower court held plaintiff was totally disabled to do work of a reasonable character, and awarded him full compensation per week for three hundred weeks. The judgment should have been for not more than four hundred weeks, less the twenty-eight weeks’ compensation received by him. All doctor’s bills and hospital fees were paid by defendant, and it is liable for no more.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by increasing the number of weeks for compensation to be paid to a period of disability not to exceed four hundred weeks, and, as amended, the judgment be affirmed, with costs.


author: TALIAFERRO, J.

text:
    No. 4230
    Second Circuit (Second Division)
    BLOUNT v. WOODWARD ET AL.
    (December 9, 1931. Opinion and Decree.)
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellee.
    Lyons & Prentiss, of Shreveport, attorneys for defendants, appellants.
   TALIAFERRO, J.

This suit is on open account for professional services against defendants for $179 with interest from judicial demand. Defendants filed no answer, nor did they make any appearance in the lower court, save to take suspensive appeal and file bond. They have not appeared in this court, nor have they filed brief. The appeal was evidently taken for delay, and is abandoned.

For these reasons, the judgment appealed from is affirmed.


author: MORENO, WESTERFIELD, J.

text:
    No. 13,780
    Orleans
    HYMAN v. SALZER PLUMBING CO., INC.
    (July 1, 1931. Opinion, and Decree.)
    (October 10, 1931. Rehearing Granted.)
    Herbert S. Weil, of New Orleans, attorney for plaintiff, appellee.
    Hugh M. Wilkinson, of New Orleans, attorney for defendant, appellant.
   MORENO,

Judge ad hoc. This is a suit by Harry Hyman, Jr., against the Salzer Plumbing Company, Inc., for $7,959.25 for injuries, loss of time from work, and medical expenses resulting from a collision. between a truck of the defendant company and an automobile in which plaintiff was a passenger. There was a judgment in favor of the plaintiff in the sum of $2,459.25 with interest, from which defendant has appealed.

The record shows that on August 21, 1929, the car in which plaintiff was riding, driven by Leonard L. Dahlman, was proceeding down Willow street. ■ The truck of the Salzer Plumbing Company, Inc., driven by Alfred R. Salzer, the head of the defendant company, was being driven along Robert street in the direction of the river. The Dahlman automobile was struck on the left rear side by the Salzer truck at a point below the mid-line on Robert street on the river side of Willow street. The Dahlman car was overturned and the Salzer truck came to a stop after striking a post situated at the lower river corner of the intersection.

The case involves the usual conflict of testimony as to who preempted the intersection and as to the relative speeds of the colliding vehicles. The plaintiff and his witnesses contend that the Dahlman car was proceeding down Willow street at a rate of speed somewhere in the neighborhood of 20 miles an hour, and possibly ranging from 22 to 25 miles, an hour. Under the city ordinance vehicles on Willow street have the right of way, and it is contended by plaintiff that the defendant’s truck approached the right of way street at a high rate of speed and attempted to cross at a time when it was or should have been apparent t9 the driver that a collision would result, if he attempted to do so.

The defendant; on the other hand, contends that the driver of its truck was free from negligence and that the accident was due solely to the fault of the driver of the car in which plaintiff was riding; that the ear was being operated at a speed in excess of 30 miles an hour and in a negligent manner;, and that the plaintiff was guilty of contributory negligence in riding in the car at that speed without protesting against its negligent operation. The specific facts- of negligence, except the speed of the car, are not set out by the defendant in support of its plea of contributory negligence.

Mr. F. B. Stern, vice-president of the Interstate Electric Company, was driving his car down Willow street immediately behind that of the Dahlman car and says that the latter was going not over 20 miles an hour. He says that the Salzer truck came out of Robert street into the intersection of Willow street at a high rate of speed and struck the Dahlman car with such force as to turn it completely over and that the Salzer truck came to a stop only after it had struck the post at the corner. He says the Dahlman car had entered the intersection first and that the collision took place near the downtown corner.

Mr. Hyman testified that the car in which he was riding was going possibly 20 or 25 miles an hour, and that, at the time of the accident, he was talking to someone else in the car and did not see the other car approaching and knew nothing of the accident until he awoke in the hospital sometime later that day.

Mr. Dahlman, the driver of the car, says that he knew that- he had the right of way on Willow street and that, when he saw the Salzer truck, it was in Robert street and he thought it would stop at Willow street to accord him the right of way, but instead the' truck came on and collided with the left rear fender on his car and turned it completely over on its right side. He also says that he was going at a rate of speed between 22 and 25 miles an hour and had practically passed the intersection so that his. rear left side was exposed to the blow of the Salzer truck. He says Mr. Salzer did not blow his horn, nor did he give any other indication of his attempt to pass at that time.

The testimony of -these witnesses is largely corroborated by Richard Greenblatt, who was also a passenger in the Dahlman car. Their testimony clearly makes out the case for the plaintiff.

In addition to their testimony, a lady who was standing on the corner of.Robert and Willow also testified that the accident was due wholly to the Salzer truck. However, her evidence is not convincing and its acceptance not necessary to a decision of the case.

In contradiction of the testimony of these witnesses is that of Mr. Salzer, the driver of the defendant’s truck. His testimony on the main facts, as well as on immaterial points, is wholly lacking in conviction. He says that there is a rubber warning sign to slow up at Robert street near the intersection of Willow street. He says he slowed up and when he was near the intersection he looked up Willow street and saw the Dahlman car approximately 100 or 125 feet away and then looked down Willow street to see if any car was approaching from downtown. He testified that as he righted his head, he was confronted with the Dahlman car, and that it was practically on top of his and not more than four or five feet away.

It is clear from this testimony that, having .looked and seen Dahlman’s car some distance up Willow street, he completely dismissed it from his mind and attempted to drive across at a time when it was approaching and without doing anything to take into account its movements. He, of course, says that if it was moving at an ordinary rate of speed, he would have had time to cross Willow street in safety.

However, if he looked, as he says he did, he must have seen the speed of the car, or at least he was held to the obligation of ascertaining its speed before reaching a conclusion as to what he should do. If it was approaching at an excessive rate of speed, as he would have the court believe, then he should have seen this rate of speed and should not have attempted to cross, in view of its excess. No matter how great the speed of the Dahlman car, if he had exercised ordinary caution in looking up Willow street before attempting to cross, he would have been apprised of its speed and would have been held to the obligation of taking it into consideration in directing his own movements.

If he failed to do so, then the proximate cause of the accident was not the speed of the Dahlman car, but his attempt to cross in spite of the unlawful rate of speed at • which it was approaching. Since his car approached the corner at a slow rate of speed, it must have been -under control, and there was, therefore afforded him the opportunity of stopping his car in time to permit the Dahlman car to cross, and if he is correct in his estimate of his speed, then there can be no doubt of his obligation to do so.

His testimony, however, does not impress us because of the improbability of the collateral facts to which he testifies. He seeks to make the court believe that the Dahlman car traveled a distance of ninety feet after it had been struck by his truck' before turning over. The testimony of all the other witnesses is that the Dahlman car turned over immediately after having been struck, or within a few feet of the point of contact. The description of the actions of ,the Dahlman car as testified to hy the witnesses for the plaintiff is in accord with probability, while the testimony of Mr. Salzer is wholly improbable and unacceptable.

His description of his interest in the Dahlman car after the collision hardly comports with the ordinary conduct of the average person. He says the Dahlman car pas'sed him very fast and that the Salzer truck rubbed the Dahlman car rather than hit it, and -that the latter car cleared the Salzer truck and “went up the street and started running on the sidewalk, for at least 25 or 30 feet on the sidewalk. I was so interested at him running on the sidewalk before I come to a stop I hit a post.”

It is hardly probable that in these circumstances, the unusual spectacle of an automobile running on a sidewalk would have so attracted and centered the. attention of Mr. Salzer that he would have been so completely oblivious to the needs of his own safety that he would have run into a post. If his testimony, that the Dahlman car had gone 90 feet after the collision before turning over were not contradicted by all of the other witnesses in the case,' his description of its actions and of his conduct in regard thereto would hardly commend itself to the credibility of the court. Upon the conclusion of all of the testimony there remains the clear conviction that the accident was due solely to the fault of the driver of the defendant’s truck.

It was urged that the speed of the Dahlman car was in violation of the traffic ordinance and that the plaintiff was guilty of contributory negligence in riding at that speed without protesting to the driver. We are convinced that the speed of the Dahlman car was not the cause of the accident, but we are equally convinced that if it had been, the negligence arising out of the excessive speed could hardly be attributed to the plaintiff. If this car had been driven at 35 or 40 miles an hour, it is inconceivable that the plaintiff would not have known of the excessive rate of speed. However, if the car was being driven at a speed of between 20 and 22 miles an hour, or possibly as much as 25 miles an hour, it can hardly be said that a passenger engaged in conversation with another passenger should have been aware of the excessive speed so as to warrant- holding him guilty of contributory negligence. Before there can he contributory negligence on the part of a passenger, as distinct from the imputation to the passenger of the negligence of the driver, the facts must be such as to induce the belief that the passenger was aware of the negligent operation of the car and continued to ride therein in spite of knowing of its negligent operation, or of being held to a knowledge of its improper operation. It is readily conceivable that while no reasonable man could be unaware of the operation of an automobile at 30 or 40 miles an hour, 10 or 20 miles in excess of the legal rate of speed, it is conceivable that he might be unaware of the fact that the automobile was being operated from 2 to 3 miles in excess of the legal rate of speed. Under the circumstances of this case it can hardly be said that plaintiff was guilty of any negligence.

The evidence shows that plaintiff suffered loss of earnings of $200, and that the damage to his clothing, and his hospital, nurses’, and doctor’s bills, amounted to $259.25. The testimony of his physician, which is uncontradicted, is that he suffered multiple contusions, abrasions, and lacerations on the face and chest and both extremities. He suffered a cut on the chin, which required two sutures, and which has left a small scar. He also suffered a severe brush burn on the right side of the face, which will leave a permanent scar, owing to the fact that grit and dirt went into the tissue and will remain there forever. He, of course, suffered the usual pains accompanying such injuries, and was required to stay in the hospital seven or eight days, and was confined to his • bed at home for two weeks. The judge of the lower court, who saw the scar on his. face and heard the testimony, reached the conclusion that $2,000 would be a fair award for the injuries, and we see no reason for disturbing it.

The judgment is accordingly affirmed.

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

ON REHEARING

WESTERFIELD, J.

Upon re-consideration, we have reached the conclusion that the amount heretofore approved by us was excessive.

It is therefore ordered, adjudged, and decreed that our former decree be amended by reducing the amount awarded plaintiff from $2,459.25 to $1,959.25, and, as thus, amended, it is reinstated.

Original decree amended and reinstated.


author: PER CURIAM.

text:
    No. 11,088
    Orleans
    GREATER NEW ORLEANS HOMESTEAD ASSN. v. KORNER
    (January 5, 1931. Opinion and Decree.)
    J. D. Dresner and Monroe So Lemann, of New Orleans, attorneys for plaintiff, appellant.
    Baldwin J.. Allen and John. E. Jackson, of New Orleans, attorneys for Jordy Bros. Slate Company, appellee.
   PER CURIAM.

Considering the mandate of the Supreme Court of Louisiana of December 1, 1930 (131 So. 680), it is now ordered, adjudged and decreed that this matter be and it is. reinstated on the docket of this court, and it is further ordered that the case be remanded to the Civil district court for the Parish of Orleans for the purpose of -taking testimony upon the alleged acquiescence by Greater New Orleans Homestead Association in the judgment appealed from, and it is further ordered that when such testimony is taken, the record and. the said testimony be transmitted to this court for further consideration.


author: JANVIER, J.

text:
    No. 13,783
    Orleans
    ATKINS v. PUMILA
    (November 30, 1931. Opinion and Decree.)
    (December 14, 1931. Rehearing Refused.)
    Henry J. Rhodes and Jose Morales, of New Orleans, attorneys for plaintiff, appellee;
    S. G-. Wimberly, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff seeks to recover for personal injuries sustained, according to the allegations of her petition, when she was attacked and struck with a stick by defendant.

Defendant denies that he struck plaintiff, though he admits that he had an altercation with plaintiff’s employer on the morning in question.

The amount claimed in the petition is $300 and the trial court awarded plaintiff judgment for $120.

Only questions of fact are involved and while it is true that the judgment of the trial court should not be reversed unless there appears manifest error, a very careful study of the transcript convinces us that such error does appear and that the judgment should be reversed.

The witnesses on behalf of plaintiff, who testified that defendant struck her, are about equally balanced numerically by those on behalf of defendant who testified to the contrary, but, many peculiarities, most suspicious, appear in the testimony on behalf of plaintiff and lead us to the conclusion that the attack, as testified to by plaintiff, did not occur and that she is seeking to recover from defendant for injuries which, if she sustained them at all, resulted from an earlier fall and not from an encounter with defendant.

In the first place, both plaintiff and her doctor testified that the attack took place on October 22nd, which is manifestly the wrong date, and the fact that both fixed the same day, though the witnesses were separated and did not hear one another tes- > tify, is, in itself, suspicious, particularly as it is quite certain that plaintiff did sustain some sort of an injury earlier than October 27th, which is the day on which the altercation between defendant and plaintiff's employer took place.

Another most suspicious circumstance is that plaintiff testified that she limped as the result of being hit on the foot by the stick wielded by defendant. Her employer, Jones, who seems most anxious to assist her in recovery, testified that he did not know that she limped but that she had had an earlier fall and intimated that that possibly accounted for the limp.

Plaintiff’s doctor’s testimony is rather amusing. At the opening of his evidence, when asked if he was a doctor, he immediately stated that he could prove that by producing his diploma and did sq, having brought his diploma, frame and all, to court.

Plaintiff testified that she had paid her doctor $12 and probably owed him about $50 in all. The doctor, however, stated that he had been paid in full, but that he was testifying as an expert and that if plaintiff was successful, his expert fee would not exceed $100.

Grant Grout, a witness for plaintiff, who testified to frequent visits to Jones’ store, stated that it was a grocery store, whereas it is conceded by all parties that Jones is in the business of selling only secondhand furniture.

Another statement of Mrs. Atkins, plaintiff, is that she did not reside at 639 St. Ann street, which is the store and home of Jones, for whom she worked, but that she resided at 820 Market street, whereas we believe that the evidence preponderates to the effect that she does reside at the Jones home at 639 St. Ann street.

Any one of these suspicious circumstances might not be sufficient to justify us in branding as false plaintiff’s statements, but all together leave us no alternative and we find ourselves unable to believe that plaintiff’s story is true.

The judgment appealed from is reversed and plaintiff’s suit is dismissed, at her cost.


text:
    No. 13,560
    Orleans
    ITEM CO. v. LUBRITZ (Doing Business as L. & L. Shop)
    (December 14, 1931. Opinion and Decree.)

      De'utsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Joseph Rosenberg, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, a corporation engaged in the city of New Orleans in the publication of newspapers, sues defendant for $370, claiming that to be the balance due on a contract for advertising.

Defendant is in the clothing business in New Orleans and was induced by a solicit- or for plaintiff to sign a contract, which forms the basis of this suit.

Defendant contends that, at the time he signed the document, the blank spaces therein were not filled in and that he instructed the solicitor to fill in the spaces to the effect that he would pay $5 per week, whereas the contract, as it appears in the record, stipulates for the payment of $10 per week for 400 weeks.

The trial court came to the conclusion that, at the time defendant signed the contract, it was properly filled in and that he was liable for the balance remaining due in accordance therewith.

A reading of the record convinces us that the finding of the trial judge was correct.

The judgment appealed from is affirmed at the cost of appellant.


author: MOUTON, J.

text:
    No. 856
    First Circuit
    DAY v. ALLEN
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    Robert T. Carter, of Greensburg, attorney for plaintiff, appellee.
    B. & M. Purser, of Amite, attorneys for defendant, appellant.
   MOUTON, J.

In the answer of defendant it is alleged that by error of the surveyor and the person who wrote the document, the proper description of the land in dispute was omitted from the act of partition.

In the opinion rendered by this court in June 1980 (14 La. App. 3, 129 South. 260), we held that the act of partition and plat of survey were important factors for the decision of the suit, but that they were not in the record, and for that reason, remanded the case to have the missing documents supplied for the completion of the record.

In their brief counsel for defendant and appellant say:

“Referring to the order of remand of this Honorable Court of June, 1930, the record, which had been in the hands of the District Judge for many months, has been searched for with diligence and not found.
“We attach to the original record and file herewith the following, etc.”'

The documents so attached by counsel to the record are not filed by the clerk of court, as required by law, and cannot be considered by this court.

The missing documents, referred to in our original opinion, have not been filed, and the order of this court remanding the case has not been complied with.

If defendant and appellant needed more time to complete the record, he sljould have asked an extension, and it would have been granted. Having failed to do so, we must affirm the judgment on the presumption that it was rendered on sufficient evidence.


author: LeBLANC, J.

text:
    No. 879
    First Circuit
    ENCYCLOPEDIA BRITANNICA CORP. v. CARVILLE
    (December 8, 1931. Opinion and Decree.)
    S. R. Hebert, of Plaquemine, attorney for plaintiff, appellant.

      Joseph Nicolosi, of Plaquemine, attorney for defendant, appellee.
   LeBLANC, J.

Plaintiff seeks to recover from the defendant, who is a practicing attorney at law in the parish of Iberville, the sum of $200, which it is alleged he collected on an account which had been placed with him for collection, and the proceeds of which it is claimed were never remitted by him.

The defense is a plea of payment; the defendant averring that he had been authorized to accept the sum of $150 in payment of the account, which amount had been paid to him by some one representing the debtor, and that he had remitted the proceeds after deducting a collection fee of 20 per cent.

The transaction leading to this litigation dates prior to the year 1917. The plaintiff had an account on its books against a certain Mrs. Elodie DeSeay, at that time the widow of Edward Clinton McGehee and afterwards the wife of W. D. Cann. The account was for the sum of $263. This appears from a letter dated January 24, 1917, in which the claim was forwarded to the defendant for collection. .In a subsequent letter written by the plaintiff to the defendant, mention is made of an additional amount of $64 being due on some other account. This letter bears date May 28, 1917, and in it, plaintiff states that if Mrs. McGehee will pay the sum of $200, they will release her from all her obligations to them. On June 27, 1917, defendant wrote plaintiff that Mrs. McGehee had advised him that she would be unable to pay $200, but that if they would accept $150, she might be able to borrow the money and settle the claim with them. The matter then dragged for some time, during which defendant was presented with a check for $200 for the account of Mrs. McGehee, which he accepted and endorsed as attorney for the plaintiff. The date on which this payment was made is not certain. According to the defendant, it seems that in an effort to make it easier for Mrs. McGehee, he advised her representative that the counter-offer of $150 which he had made plaintiff at her suggestion was still pending, and that he would hold the proceeds of the check for $200 awaiting the action plaintiff would take on it. The offer was subsequently accepted and defendant contends that he discharged his duties as plaintiff’s agent and attorney when he remitted to them his check for $120, that being the final amount of the compromise, less his commission.

The district judge held that defendant had sustained his plea of payment of the $150 less his fee. He further held, however, that, as attorney for plaintiff, having accepted and cashed the check foi $200, defendant should have remitted his client on the basis of that settlement, less his fee for making the collection. Judgment was accordingly rendered in favor of the plaintiff in the sum. of $40, that being the difference between the two amounts, less a commission of 20 per cent, with interest from August 15, 1917. Plaintiff has appealed.

As is readily observed from the statement of the case, no intricate legal principles are involved, the defendant freely conceding that the burden of supporting his plea of payment rested on him. The long delay of more than ten years between the time of the transactions involving a settlement of the claim and the filing and trial of this suit, and the fact, according to the uncontradicted testimony of the defendant, that a fire in his office had destroyed some of his records in which most probably were some of those he would have relied on to make his proof, were some of the circumstances which led the trial judge to accept his word that he had made the remittance of $120 by check on the Iberville Bank & Trust Company, as against only the testimony of the assistant treasurer of the plaintiff corporation, testifying many years after, that the payment had not been made. ' '

A more serious question in the case may be said to be one involving, the credibility and the integrity of the defendant, who is a member of the bar, and as we believe the judge of the district court before which he practices is in a better position to pass on a matter of this kind than perhaps anyone else, his judgment should prevail over any inuendoes or suggestion that may arise from the record. In this connection we note further, as again appears from the uncontradicted testimony of the defendant, that the subject-matter of this suit, some years ago, formed the basis of a complaint made against him before the grievance and ethics committee of the Louisiana. Bar Association, which also accepted his explanation and dismissed the charge. This is an additional circumstance, which we believe, tends'to favor, the defendant.

The defendant makes no serious complaint about that part of the judgment which condemns him to pay the additional sum of $40 with interest and costs, which we believe was also properly rendered.


text:
    No. 882
    First Circuit
    BUHLER v. EUBANKS ET AL.
    (December 8, 1931. Opinion and Decree.)
    Laycock & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    James D. Womack, of Baton Rouge, attorney for defendants, appellees.
   LeBLANC, J.

Plaintiff, Mrs. Nettie Buhler, after having qualified and been confirmed as the natural tutrix of her minor child, John V. Manning, Jr., instituted this suit for his use and benefit, for damages -for personal injuries .sustained by him when he was struck by a Ford automobile on the public highway known as the Bayou Sara road in the Third ward of East Baton Rouge parish, on January 30, 1930. The claim is made against the defendants, • J. H. Eubanks and Joe Loudon, on the representation in the petition that Eubanks ’ was the owner and Loudon the driver of a certain Ford bus, which, in attempting to • pass a Ford automobile owned and being driven by one Porter Stephenson at the moment of the accident, struck the front fender of the latter car, causing the driver to lose control thereof and run into the child and injure him. She prays for judgment against both defendants in the sum of $5,000 and for reservation of her rights to sue Porter Stephenson,. should it be found that the damages and injuries were due to his fault and negligence.

From an adverse decision in the lower, court under which her demand was rejected, the plaintiff has appealed.

The joint answer of the two defendants is a denial that the bus struck the Ford car when it was in the act of passing ahead of it and contains a specific averment that the accident was due solely to the negligence and carelessness of Porter Stephens on, the driver of the Ford automobile.

The bus which Loudon was driving is used by several parties as their means of transportation from their homes to the Standard Oil plant in Baton Rouge, where, they work. It is not quite certain from the testimony who really owns it, as the several men who so use it all contribute by the month to its operating expense and its upkeep. The issue, of ownership is not raised by the pleadings and we would not refer to it were it not that. quite a good bit of evidence was taken concerning it from all of which we conclude it is sufficiently shown that Eubanks has that much interest in, and control over it as to make him responsible and answerable in dam,ages in an action like the. present, one, provided, of course, it is shown that it was being negligently operated, on the public highway.

On the afternoon of this accident, the bus and the Ford car were both traveling north. Besides the two defendants, there were six passengers on the bus. It is shown to have a seating capacity of fifteen persons, there being a front seat and a bench seat on each side lengthwise the whole body. In the Ford car, which was a touring model of the older type, there were four passengers besides the driver, Stephenson, all of them being .negroes.

Shortly before the accident, the bus was driving ahead of the Ford car. "When it reached a place referred to in the testimony of some of the witnesses as Thompson’s boarding house, it stopped to discharge a passenger, and while it was stationary, the Ford car passed ahead of it, driving at a speed of approximately 25 miles an hour. The bus then proceeded on its journey, gradually gaining on the Ford, and at a point some four or five hundred yards from where it had started again, passed ahead of it. Naturally it had to be traveling faster than the Ford car, but there is nothing in the record to show that it was being driven in a reckless or careless manner and at an excessive rate of speed. The determining issue of fact, which is whether or not the bus struck the Ford and caused its driver to lose control of his car and run into the injured child, arises at this point and it is here that we have a sharp conflict of the testimony.

The occupants of the Ford car all testify that the rear end of the bus struck the front left fender of the Ford, causing the car to swerve to the right side of the road, off of the paved portion and on to the shoulder on which the injured child was walking. All of the passengers in the bus, on the Qther hand, state positively that they have no knowledge whatever of any collision between the two vehicles. Not one of them experienced any jar or other sensation which necessarily had to result from a contact of the force of the one that is supposed to have taken place between them. Some of them only heard of the accident the day after.

The principal contention of counsel for plaintiff is 'to the effect that positive testimony such as that adduced by the witnesses who were in the Ford car should prevail over the purely negative evidence on the other side. But the testimony on that side is not all negative. Defendant Loudon, who was driving the bus, says that when he passed the Ford car there was a clearance of three or four feet between them, and the witness Charles Causey, who was sitting on the front seat on the right-hand side, and who was in a better position to see, swears that when Loudon drove by the Ford he was something like three and a half or four feet away from it. This it seems to us, is positive or affirmative proof, which if given any consideration establishes the fact that it was a physical impossibility for the two cars to have come in contact with each other. The other testimony of the several witnesses that they felt no jolt and heard no noise, then becomes corroborative of what positive proof there is that there was no contact and adds weight to it.

Counsel for plaintiff also lays great stress on the testimony of the witnesses J. J. Brown and Hebert Brown, who were following the bus in their own car and who testify that about 200 feet from where the accident occurred, the hat of Hebert Brown’s child had been blown out of the car and they had stopped to pick it up. Neither says that he saw the accident. J. J. Brown heard a lick which he merely surmises was the blow caused by the two cars coming in contact. Hebert Brown’s testimony has reference only to marks which he saw on the road, from which an attempt is made to show that the bus ran into the Ford car. But none of this evidence is of a more positive nature than the testimony of the defendant which counsel for plaintiff contends is not entitled ' to much consideration. It is also urged that one of these witnesses examined the Ford car and found marks on it which indicated that there had been a contact of the two automobiles, but there is no proof to show that the marks were not there prior to the accident. In this connection, we note that on the morning following the accident, a deputy sheriff of the parish examined the bus and he testifies that he found no signs at all on it to show that it had come in contact with another object.

A careful consideration of all the evidence in the case satisfies us of the correctness of the decision of the lower court. At least, we find no such error as to justify a reversal.


text:
    No. 838
    First Circuit
    HILL v. ROGERS
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellee.
    B. M. Harvard, of Hammond, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff, Aleck Hill, and Erastus Rogers, defendant, entered into a written contract to raise strawberries.

The defendant agreed to furnish the land, teams, wagon, mule, plows for the cultivation of the crop, and dwelling.

Plaintiff was. to furnish the labor, fertilizer, and obligated himself to pay for the picking and packing of the strawberries, which was to be done by defendant and Mrs. Rogers, his Wife; and in case plaintiff drew any amount from defendant for supplies, the saíne so drawn was to be deducted from the portion of the proceeds of the crop coming to plaintiff.

It is admitted that the total sum realized from the proceeds of the crop amounted to $536/44, giving to each of the litigants one-half thereof, $268.22.

Plaintiff alleges that after making proper deduction from his share for expenses he had to bear under the contract, and the advances he received from defendant, he is entitled to recover from the latter the sum of $135.80, with legal interest thereon from June 1, 1930.

The lower court rendered judgment in favor of plaintiff for a balance of $61.22, from which this appeal is taken.

The defendant contends that for the advances, and expenses made to plaintiff by him, and for the destruction of a pen and fence posts on his property by plaintiff, plaintiff is indebted to him in the sum of $312.41, which overlaps the share of plaintiff in the proceeds of the crop by the sum of $44.19, which is claimed by defendant in reconvention.

There is an itemized account annexed to defendant’s answer showing the various items, upon which he bases his reconven•tional demand.

It is clearly established that defendant advanced plaintiff $82 through Wright and Anderson and loaned him $14 for which he is liable under the terms of the contract. These are the two first items on the account.

The third item represents a claim of $10 for strawberry plants that defendant claims he furnished. Plaintiff under the contract agreed to furnish all labor to raise the plants. There is no provision therein that he should furnish the plants. This item is therefore denied.

The fourth item is for plowing the land by defendant. The evidence on this claim is of a doubtful character, and not sufficient to support it, thus entailing its denial. There is nothing in the contract that plaintiff was to pay one-half for pine straw which defendant claims he furnished, for which he is claiming $10. The proof is that it is customary for the farmer or landowner to furnish the straw. Such being the custom, and as there is no provision in the ’ agreement that plaintiff was to furnish it, this item, No. 5, is also rejected.

Items Nos. 6, 62 cents for pint boxes; 7, $81.54 for picking strawberries; 8, $37 for packing them; 9, one-half of $55 for crates, that is, $27.75 — all charged against plaintiff, will be allowed, as plaintiff is bound thereunto under the terms of the contract.

Item No. 10, for groceries, advanced to plaintiff amounting to $2.50, which is fully sustained by the evidence of Mrs. Rogers, defendant’s wife, will be allowed.

As to item No. 11, for cash advanced plaintiff to buy ,a cord of wood, the proof is unsatisfactory, and it is disallowed. Nor is the proof sufficient to show that plaintiff destroyed by fire a hogpen valued at $10 and for which he is charged on the account. This will also be denied.

It is shown, however, that he dug up from defendant’s land twenty fence posts and burned them for firewood, for which he is properly charged for $5.

The items approved by us as hereinabove stated amount to a total of $250.41.

Plaintiff is entitled to $268.22, as herein-above explained. The deduction of $250.41 for which plaintiff is responsible, leaves a balance in favor of plaintiff of $17.81, instead of $61.22, decreed below.

The judgment will therefore be amended and reduced in accordance with that finding.

It is therefore ordered and decreed that the judgment appealed from be and is hereby amended and reduced to the sum of $17.81; and as thus amended is affirmed.

Plaintiff to pay the cost of appeal, defendant to pay other costs.