author: TATE, Judge. ELLIS, Judge LOTTINGER, Judge. ELLIS, Judge

text:
    Mrs. Willie Mae RODRIGUEZ, Plaintiff-Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees.
    Nos. 4101, 4230.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 22, 1955.
    On Rehearing June 29, 1956.
    Writ of Certiorari Denied Sept. 28, 1956.

      Hynes, Mathews & Lane, Roger Frit-chie, Baton Rouge, for appellant.
    Kantrow Spaht & West, and R. L. Klein-peter, Baton Rouge, for appellee.
   TATE, Judge.

This personal injury suit especially concerns the extent to which the negligence of the driver of a car owned by plaintiff-passenger can be imputed to the latter in her action against the other driver and the liability insurers of both cars involved. A.11 three defendants were cast in damages m solido and appealed; plaintiff answered the appeal, seeking an increase in the award.

The District Court held that both drivers’ negligence caused this accident. The vehicles collided in a blind intersection. Neither party saw the other, sounded the horn, or applied the brakes prior to the collision; both were moved hardly at all by the impact. As indicated below, it is unnecessary to discuss the negligence of defendant Boet, driver of the other car whose front end struck the right side of plaintiff Mrs. Rodriguez’s car.

The driver of this latter car was at least contributorily negligent herein in entering the intersection heedlessly and .in disregard of the right of way of the Boet vehicle which was aproaching from her right, see LSA-R.S. 32:237, subd. A; Dodd v. Bass, La.App., 76 So.2d 572. Although plaintiff’s driver entered the intersection a few feet before defendant Boet did a second later, the right of pre-emption is not accorded a driver who blindly enters an intersection without regard to oncoming traffic and without a reasonable expectation of safely clearing same, Wilson v. Williams, La.App. 1 Cir., 82 So.2d 71; Sonnier v. U. S. Fidelity & Guaranty Co., La.App. 1, Cir., 79 So.2d 635.

It is undisputed that the car in which plaintiff was riding as passenger was owned by her, although driven at the time of the accident by her sister, who intended to drop plaintiff off at the latter’s place of business as she did almost every morning; that plaintiff’s sister customarily drove plaintiff’s car, no matter where they went together; that both plaintiff and her sister recognized plaintiff’s ownership of the automobile in question and her right to control its operation.

It is well settled in Louisiana that where the owner, with theoretical right of control over another driving his car, is a passenger therein in an accident when the ride is for his benefit or for the mutual benefit of himself and the driver; then, as to third persons involved in the accident, the negligence of the driver is imputed to the owner as that of an agent, and if a proximate cause of the accident, may either render the owner liable to the third party or constitute contributory negligence barring recovery by the owner from the third party, Waguespack v. Savarese, La.App., 13 So.2d 726; Weitkam v. Johnson, La.App., 5 So.2d 582; Riggs v. Strauss & Son, La.App., 2 So.2d 501; see also Note, 12 La.Law Review 323; Pierrotti v. Huff Truck Lines, La.App. 1 Cir., 63 So.2d 886.

Thus, under the circumstances herein, plaintiff’s sister’s negligence causing the accident is imputed to plaintiff and bars plaintiff’s recovery from the other driver (Boet) and his liability insurer, whether Boet was concurrently negligent or not. The judgment will be amended accordingly.

The remaining defendant, State Farm Mutual Insurance Company, issued a liability policy to plaintiff covering the operation of plaintiff’s car in which she was riding as a passenger at the time of the accident. It contained the usual omnibus clause providing that one driving the car with the consent of the named insured was an “additional insured”, likewise protected according to the terms of the policy against liability to others arising from negligent operation of the vehicle. Under this omnibus clause the named insured may recover from his own insurance company damages sustained by him as passenger through the negligence of an “additional insured” driving the car; McDowell v. National Surety Corp., La.App. 1 Cir., 68 So.2d 189, certiorari denied, La.Sup., Feb. 15, 1954, Id., 347 U.S. 995, 74 S.Ct. 867, 98 L.Ed 1127, June 7, 1954; Hardtner v. Aetna Casualty & Surety Co., La.App., 189 So. 365, certiorari denied; see also McHenry v. American Employers’ Ins. Co., 206 La. 70, 18 So.2d 656.

This is true even though an agency relationship exists between the driver and the owner-passenger, for as stated in the McDowell case, 68 So.2d 189 at page 193:

“As to any damages to third persons, the negligence of the wife would have been imputed to the husband, the principal in the community agency. Thus, he would have had no defense to an action instituted by third persons, under the circumstances of this case. Hozvever, in the agency relationship, the law allows the principal to recover from the agent for the damages sustained by the principal as a result of the negligent acts of the agent.” (Italics ours.)

Counsel for State Farm skillfully argues that the above cited cases do not apply because in the case now before us the owner-principal (plaintiff) had not relinquished her right of control over the driver-agent and theoretically could have prevented the latter’s negligent actions. We do not find this distinction persuasive, since undoubtedly in the cited cases the owner-principal retained the same theoretical right of control. As between the principal and the agent, the legal relationship of the agency is disregarded insofar as charging one with the fault of another; in effect, a driver-agent owes the same duty to a passenger-principal as any other driver owes to any other passenger.

Thus in this case, where although plaintiff-owner may have retained her theoretical right of control she was not actually exercising it, the driver’s negligence is not imputed to the owner. Whether plaintiff’s recovery is barred herein is determined by her status as a passenger, not as an owner or as a principal; although perhaps the duty of a passenger-owner may be greater than that of a passenger-non-owner in a clearly hazardous situation when the owner has the actual opportunity to exercise his right of control and fails to do so. The negligence of the driver is not imputed to the passenger, Bourg v. Hubble, La.App. 1 Cir., 68 So.2d 639; although of course as there stated, the.latter may be guilty of independent negligence contributing to the accident which bars recovery.

But it is well settled that under ordinary circumstances a passenger may rely upon the care and skill of his driver and is under no duty to supervise the driving of the vehicle or to maintain an independent lookout, see authorities cited in White v. State Farm Mutual Automobile Ins. Co., 222 La. 994, 64 So.2d 245, 42 A.L.R.2d 338. Thus, in the present cir--cumstances, plaintiff was entitled to rely upon her driver’s lookout and care, and we fail to find any independent or contributory negligence on plaintiff’s part in her so doing. Prior to the driver’s heedless entry into the intersection, her manner of driving was not so clearly negligent as to alert the passenger-owner to the necessity of remonstrance or of exercise of the right of control.

In Horn v. Barras, La.App. 1 Cir., 172 So. 451, the driver had driven during a heavy rainstorm restricting visibility to 20 feet ahead, at a speed of 30 to 45 mph— i. e., 43.8 to 65.7 feet per second—continuously for 5 miles. The owner-passenger’s' failure during that journey to 'exercise' his right of control to remonstrate at or to moderate the speed, was held independent negligence barring recovery against the driver of another vehicle, because the owner-passenger could observe the restricted visibility, the too-rapid speed, and by implication because he had the opportunity to exercise his right of control and failed to do so. This is not the situation presently before us.

This 54-year old lady sustained very painful injuries, bruises to her hip, shoulder and chest, a broken collar bone, a right ankle sprain, right thumb tendon and hand injuries; was hospitalized ten days; spent six weeks in a cast; was unable at date of trial eight months after the accident, due ¡to residual stiffness and pain of right shoulder and hand, to place her right hand behind her or raise it over’ her head. An orthopedic expert estimated potential permanent disability of 10% of the shoulder, not serious eno.ugh to bar her employment, but possibly producing awkwardness or pain in extreme movements of the affected members. The award by the District Court of $7,500 for mental and physical pain and suffering and permanent disability was neither manifestly insufficient or excessive and will not be disturbed.

Similarly, in view of the lack of specific evidence concerning plaintiff’s allegedly greater earnings in the year preceding the accident, we find reasonable the District Court’s award to her of lost earnings during her several months’ total disability at the rate of $25 per week, the salary she earned when she returned to her first employment after the accident and also that she was earning at the time of trial.

The special damages for medical treatment are undisputed.

For the reasons assigned the trial court’s judgment is affirmed in favor of plaintiff . against State Farm Mutual Automobile Insurance Company in the sum of $8,335 together with legal interest thereon at the legal rate from date of judicial demand until paid, said defendant to pay all costs of these proceedings and of this appeal; but is amended to dismiss plaintiff’s suit against Dexter Jose Boet, and The Franklin National Insurance Company (Boet’s liability insurer).

Amended: and affirmed as amended.

ELLIS, Judge

(dissenting).

I have no quarrel with the facts as found by the majority opinion, but only with the law applicable thereto.

In the majority opinion it is stated:

“This personal injury suit especially concerns the extent to which the negligence of the driver of a car owned by plaintiff-passenger can be imputed to the latter in her action against the other driver and the liability insurers of both cars involved. All three defendants were cast in damages in soli-do and appealed; plaintiff answered the appeal, seeking an increase in the award.
“The District Court held that both drivers’ negligence caused this accident. The vehicles collided in a blind intersection. Neither party saw the other, sounded the horn, or applied the brakes prior to the collision; both were moved hardly at all by the impact. As indicated below, it is unnecessary to discuss the negligence of defendant Boet, driver of the other car whose front end struck the right side of plaintiff Mrs. Rodriguez’s car.
“The driver of this latter car was at least contributorily negligent herein in entering the intersection heedlessly and in disregard of the right of way of the Boet vehicle which was approaching from her right, see LSA-R.S. 32:237A; Dood v. Bass, La.App., 76 So.2d 572. * * * ”
“It is undisputed that the car in which plaintiff was riding as passenger was owned by her, although driven at the time of the accident by her sister, who intended to drop plaintiff off at the latter’s place of business as she did almost every morning; that plaintiff’s sister customarily drove plaintiff’s car, no matter where they went together ; that both plaintiff and her sister recognized plaintiff’s ownership of the automobile in question and her right to control its operation.
* * ❖ * * *
“This is true even though an agency relationship exists between the driver and the owner-passenger, for as stated in the McDowell case, 68 So.2d 189 at page 193:
“ ‘As to any damages to third persons, the negligence of the wife would have been imputed to the husband, the principal in the community agency. Thus, he would have had no defense to an action instituted by third persons, under the circumstances of this case. However, in the agency relationship, the law allows the principal to recover from the agent for the damages sustained by the principal as a result of the negligent acts of the agent.’ (Italics ours.)
“Counsel for State Farm skillfully argues that the above cited cases do not apply because in the case now before us the owner-principal (plaintiff) had not relinquished her right of control over the driver-agent and theoretically could have presented the latter’s negligent actions. We do not find this distinction persuasive, since undoubtedly in the cited cases the owner-principal retained the same theoretical right of control. As between the principal and the agent, the legal relationship of the agency is disregarded insofar as charging one with the fault of another; in effect, a driver-agent owes the same duty to a passenger-principal as any other driver owes to any other passenger.
“Thus in this case, where although plaintiff-owner may have retained her theoretical right of control she was not actually exercising it, the driver’s negligence is not imputed to the owner. Whether plaintiff’s recovery is barred herein is determined by her status as a passenger, not as an owner or as a principal; although perhaps the duty of a passenger-owner may be greater than that of a passenger-non-owner in a clearly hazardous situation when the owner has the actual opportunity to exercise his right of control and fails to do so. The negligence of the driver is not imputed to the passenger, Bourg v. Hubble, La.App. 1 Cir., 68 So.2d 639; although of course as there stated, the latter may be guilty of independent negligence contributing to the accident which bars recovery.
“But it is well settled that under ordinary circumstances a passenger may rely upon the care and skill of his driver and is under no duty to supervise the driving of the vehicle or to maintain an independent lookout, see authorities cited in White v. State Farm Mutual Automobile Ins. Co., 222 La. 994, 64 So.2d 245, 42 A.L.R.2d 338. Thus, in the present circumstances, plaintiff was entitled to rely upon her driver’s lookout and care, and we fail to find any independent or contributory negligence on plaintiff’s part in her so doing. Prior to the driver’s sudden heedless entry into the intersection, her manner of driving was not so clearly negligent as to alert the passenger-owner to the necessity of remonstrance or of exercise of the right of control.”

It is to be noted that the majority opinion stated that this case especially concerned the extent to which the negligence of the driver of a car owned by the plaintiff-passenger, who was present in the car at the time of the accident, can be imputed to the latter in her action against the other driver and the liability insurer of both cars involved.

It is my opinion that this case does not concern an imputation of negligence but directly concerns the contributory or independent negligence of the owner-passenger present in the car, under the law applied to the facts as stated by the majority. I agree that the amendment of the judgment so as to bar the owner-passenger from any recovery from the other driver (Boet) and his liability insurer is correct. I think that the judgment in favor of the plaintiff, who was the owner-passenger present in the car at the time of the accident, and against the insurer of her driver is incorrect. I believe that the contributory negligence or independent negligence of the plaintiff owner bars her recovery.

This case is not like the McDowell case for in the latter husband and wife were on a joint venture or community mission and the husband was suing his insurance company under the Omnibus Clause of the policy. The McDowell case simply held that where the policy did not specifically contain a prohibition against the named insured suing under such circumstances and facts, he had a right to consider the driver of the car, even though it was his agent, as the additional insured and, therefore, the right to sue the additional insured’s insurance company. While I thought, considering all the terms in the policy and the real intent between the named insured and the company, that such a suit was prohibited, it has been decided otherwise and I abide by that decision. However, I was also of the opinion that where the owner-passenger was the husband of the driver and they were on a community mission or joint venture, that the relationship was sufficient to bar by imputation of negligence or under the theory of the right to control, a recovery by the husband against the wife. Of course, it is not disputed that the insurance company is entitled to all the defenses that may be urged by its insured if the latter was personally sued except that of coverture, which is personal to the parties.

In the present case we haye no such relationship and we are not concerned with the imputation of negligence, for under the law a principal may always sue his agent provided he is free of negligence. This does not mean that the negligent agent cannot defend himself on the ground of the contributory or independent negligence of the owner-passenger.

The quotation from the McDowell case in the majority opinion, supra, was based upon a statement in Hardtner v. Aetna ■Casualty & Sur. Co., La.App., 189 So. 365, which in turn based such a statement upon the case of Costa v. Yochim, 104 La. 170, 28 So. 992. Of course, in the Costa case the owner was not present in the wagon at the time of the accident and resulting damage and the Costa case was merely one which held that the owner, if not negligent himself, and he could not be in such a case as he was not present, could recover the damages that had been recovered from him as the result of the negligent acts of his agent. The Costa case was never intended to deprive an agent or his insurer when sued by the owner-principal present in the motor vehicle at the time of the accident of their defenses against the owner, such as contributory negligence or outright independent negligence. The Hardt-ner case, supra, merely held that on the face of the petition the plaintiff had not convicted himself of contributory negligence, but it does not stand for a holding that the driver of the Hardtner car could not have plead contributory or independent negligence against Mr. Hardtner who was killed when the car was struck by a train. The case was settled and never tried on its merits or I am quite sure the record would have been full of such a defense.

It appears to me in the present case that the majority is in effect holding that the plaintiff-owner-passenger at the time of the collision is to be considered as merely a guest and her responsibility fixed as such. With this I cannot agree, as an owner-passenger is under a duty to exercise a greater degree of care than a guest for he has the right to control and is charged with the duty of so doing where the situation and the facts demand it.

In Riggs v. F. Strauss & Son, La.App., 2 So.2d 501, 503, our brethern of the Second Circuit through Judge, now Justice, Llamiter, made the following statement which distinguishes between an owner-passenger and purely a guest-passenger. It was stated:

“In Restatement of the Law (verbo Torts) Section 491, we find:

“ ‘The fact that the plaintiff is the owner of the car which he permits another to drive does not make the journey during which such other drives a joint enterprise, although his ownership may be important in three other particulars. First, it may give him a peculiar ability to control the manner in which the driver operates the car, and therefore, may bar his recovery against the negligent defendant under the rule stated in § 495. An owner of a.:car is entitled to expect that one whom he permits to drive his car will follow his directions. On the other hand, one who is a guest in a car not only feels reluctant to interfere with his driver but the owner who is driving is far less likely to heed his advice than if he, the driver, were merely permitted by the plaintiff, as owner, to do the driving. Second, if the purpose of the journey is for the benefit of the owner, even though it is also for the benefit of him who is permitted to drive, the owner may under the principles of the law of Agency be regarded as the master of the driver even though no wages or reward other than the participation in the drive is paid to ■him.’ ”

The majority opinion holds that where the plaintiff-owner is being sued by a third party or is suing a third party, that in those cases the negligence of his driver is imputable to the owner, and that, therefore in the present case, the owner, although suing the agent’s insured, is, in effect, suing the agent, that the agent not being .a third party his negligence cannot be imputed to the owner. In my opinion it is not a question of imputation of negligence where an owner-plaintiff is a passenger in the car at the time of the collision where the facts show that the driver agent was grossly guilty of negligence as has been found under the facts in the case under ■consideration, but that under such facts the agent’s negligence, while not imputed to the ■owner-passenger, becomes the separate, independent or contributory negligence of the owner-passenger as he saw or should have seen or knew or should have known •of the dangerous and hazardous situation confronting his driver and agent and failed to act. The owner-passenger under such •circumstances is charged with the legal right to control and his failure to do so ■constitutes negligence on his part and may be plead as a bar to his recovery, whether he is suing or being sued by a so-called ■third party or whether he is suing his -agent.

Under the stated facts in the majority opinion, we have a case in which the plaintiff was riding in her own car, although being driven at the time of the accident by her sister “who intended to drop plaintiff off at the latter’s place of business as she did almost every morning; that plaintiff’s sister customarily drove plaintiff’s car no matter where they went together, that both plaintiff and her sister recognized plaintiff’s ownership of the automobile in question and her right to control its operation”, and that “the driver of this latter car (which referred to plaintiff’s car) was at least contribtitorily negligent herein in entering the intersection heedlessly and in disregard of the right of way of the Boet vehicle which was approaching from her right,’ and it is further stated in the majority opinion that “the vehicles collided in a blind intersection, neither party saw the other, sounded the horn, or applied the brakes prior to the collision”. It is also shown by the record that the owner-plaintiff and her sister traveled this route to work and that they were both familiar with this blind, dangerous intersection. (Emphasis added)

In my opinion the driver and plaintiff-owner were faced with a dangerous and hazardous situation and it is not borne out by the facts that the driver made a “sudden heedless entry into the intersection,” for the plaintiff knew about this intersection from the time they started the trip and knew its dangerous propensities and yet sat silently by while the driver entered the intersection “heedlessly and in disregard of the right of way of the Boet vehicle which was approaching from the right” without warning the driver to slow down, sound her horn, or take any protective measure. In my opinion it is not a question of the driver’s negligence being imputed to the owner-passenger, but clearly a question of the law under such facts and circumstances holding the owner-passenger guilty of contributory or independent negligence. An owner-passenger may be guilty by an act of omission as well as one of commission if the owner-passenger fails to act or respond to a dangerous, apparently hazardous situation. The law says that he or she is negligent by virtue of their omission to exercise the control which the law gives to them.

In the present case the defendant-insurer cannot be deprived of pleading the contributory or independent negligence of the passenger-owner.

I can see no difference in the conclusion that should be reached in this case and that which was reached in Horn v. Barras, 172 So. 451, 455, decided by this Court. In that case the plaintiff’s automobile on the night and at the time of the accident was being driven by his brother when it ran into a large freight truck of the defendant which was parked on the paved highway east of Crowley, Louisiana. The Court found that the weather was bad and that a speed of from 30 to 35 miles per hour was excessive and dangerous under the facts and circumstances. In the case there was a plea of contributory negligence as a bar to recovery by the plaintiff-owner. The Court held:

“The contributory negligence of the driver of plaintiff’s car clearly appears from the record, as we read it, and as it is shown that plaintiff himself, who was seated on the front seat with the driver, had equal opportunity of seeing and observing the conditions which existed, was aware of the speed at which they were going and the distance they could see ahead of them, had entire control over the car, and yet permitted its operation in such manner, he also must be held negligent, and his negligence having contributed to the accident, stands in the way of his recovery.”

The same language as above quoted might be used in the present case. The .contributory negligence of the driver of the plaintiff’s car in the case under consideration clearly appears from the record and is clearly stated in the majority opinion, and as it is shown that the plaintiff herself, who was seated on the front seat with the driver, had full knowledge and equal opportunity of knowing, seeing and observing the blind and dangerous intersection which existed, was aware of the speed at which they were going and the limited vision at this blind intersection, had entire control over the car, and yet permitted its operation in such a manner, that is, allowed it to be driven into the intersection “heedlessly and in disregard of the right of way of the Boet vehicle which was approaching from her right”, she also must be held negligent and her negligence, having contributed to the accident, stands in the way of her recovery.

For the above reasons, I respectfully dissent.

On Rehearing

LOTTINGER, Judge.

This rehearing was granted on the petition of defendant, State Farm Mutual Ins. Co., on our original judgment rendered on November 22nd, 1955.

The facts show that an accident occurred at between 4:00 and 4:30 o’clock a. m. on the morning of October 21, 1954, between a car belonging to petitioner, Mrs. Rodriguez 'but being driven by her sister, Mrs. McCord, and a car owned and driven by Mr. Boet. The Rodriguez car was being driven in a northerly direction on N. 14th Street, and the Boet car was proceeding westerly on Gayoso Street, in Baton Rouge, Louisiana. The evidence discloses that both streets are asphalt surface, and they are each about twenty-four feet in width. A Jewish cemetery is situated on the southeast corner of the intersection, and the cemetery is elevated some few feet so as to obstruct the view. Mrs. Rodriguez was a passenger in her car and sustained personal injuries resulting in this suit by her against Mr. Boet, his insurer, Franklin National Insurance Co., and State Farm Mutual Insurance Company. State Farm Mutual Ins. Co. was the liability insurer of the Rodriguez car. Suit is brought against it under the omnibus clause, as Mrs. McCord was driving with the permission of the owner, and was, therefore, an additional insured.

The Lower Court awarded judgment in favor of petitioner and against all defendants. We reversed the judgment as against Mr. Boet and his insurer, but affirmed the judgment of the Lower Court as against State Farm Mutual Ins. Co. As stated above, the defendant asked for a rehearing which was granted, but same was limited to the question of independent or contributory negligence of the plaintiff.

The evidence disclosed that the car was owned by the petitioner, and that her sister, Mrs. McCord, was driving petitioner to work at the time of the accident. Therefore there was a relationship of principal and agent existing between petitioner and her sister at the time of the accident. As we held the sister, who was driving the car, guilty of contributory negligence, such contributory negligence was, therefore, imputed to the principal, or petitioner, insofar as third parties were concerned, as there was no question that the agent was acting within the scope and course of the agency relationship when the collision occurred. Therefore, under the theory of imputed negligence, the claim of petitioner against the third parties, Mr. Boet and his insurer, were dismissed by this Court.

The suit as against the State Farm Mutual Insurance Company, however, is a different matter. Under the omnibus clause petitioner was suing the insurance company as the insurer of her agent, Mrs. McCord. There would be no imputed negligence as the suit was one by the principal against her agent. In order to collect damages, therefore, the petitioner must be free of independent or contributory negligence, and the question, therefore, arises as to the duty of an owner-passenger of the vehicle involved in an accident.

A similar situation existed in McDowell v. National Surety Corporation, La.App., 68 So.2d 189,193. In that case the husband, who was owner of the car, was asleep on the back seat when his wife, who was driving, negligently struck another vehicle. The husband brought suit against his liability insurer alleging that the wife was the insured under the omnibus clause. We held that the husband was guilty of no independent or contributory negligence and gave judgment in his favor. The Supreme Court denied writs. In the McDowell case, we said:

“As to any damages to third persons, the negligence of the wife would have been imputed to the husband, the principal in the community agency. Thus, he would have no defense to an action instituted by third persons, under the circumstances of this case. However, in the agency relationship, the law allows the principal to recover for the damages sustained by the principal as a result of the negligent acts of the agent.”

In the dissenting opinion filed herein, Judge Ellis made reference to the cases of Riggs v. F. Strauss & Sons, La.App., 2 So. 2d 501 and Horn v. Barras, La.App., 172 So. 451. We have no quarrel with either of these cases as both were suits by an owner-passenger against third parties. The defendant likewise cites a number of cases in its brief on rehearing involving the same situation, suits by an owner-passenger against third parties. These cases involve the theory of imputed negligence to the owner under the principal— agency relationship against third parties and are therefore distinguished from the present case at bar.

White v. State Farm Mutual Ins. Co., 222 La. 994, 64 So.2d 245, 249, 42 A.L.R.2d 338, involves a suit by a guest passenger against the owner and insurer of the truck in which he was riding at the time of the accident, as well as the driver, owner and insurer of the other vehicle which was involved in the accident. In that case, the question arose as to whether the guest passenger was guilty of contributory negligence in not remonstrating to the driver who was proceeding down the approach to the Mississippi River bridge at Baton Rouge at a speed of 30 to 35 miles per hour under icy conditions and in the face of signs warning of said conditions. In that case, with respect to the question of contributory negligence, the Supreme Court said:

“Contributory negligence is-, as the phrase signifies, negligence which contributes to the accident, that is, negligence having causal connection with it and but for which the accident would not have occurred. Insofar as the rights of a guest in an automobile are concerned, it is settled that, in actions against third persons, the negligence of the host driver does not bar recovery because his negligence cannot be imputed to the guest. Lawrason v. Richard, 172 La. 696, 135 So. 29; Lorance v. Smith, 173 La. 883, 138 So. 871. However, a guest may be denied recovery on the ground of contributory negligence in instances where he is guilty on his own part of independent negligence of such a nature, that, but for which, his injuries would not have been sustained. Lorance v. Smith, supra; Churchill v. Texas & Pac. Ry. Co., 151 La. 726, 92 So. 314; Delaune v. Breaux, 174 La. 43, 139 So. 753; Squyres v. Baldwin, 191 La. 249, 185 So. 14. But in determining whether the asserted fault of a guest has been a contributing factor in bringing about his injuries, it is first necessary to ascertain what duties are imposed upon him as pertain to the operation of the vehicle and the safety of the journey.”

In determining the duties of a guest passenger, the Court continued:

“It is firmly established by the above cited authorities of this Court and others of the Courts of Appeal of this State, too numerous to mention, that a guest is under no duty to supervise the driving of the vehicle and he is not obliged to look out for sudden or unexpected dangers that may arise. Albeit, he has the right to place reliance upon the driver to discharge that obligation and, as aptly expressed by the Court of Appeal, Second Circuit, in Singley v. Thomas, 49 So.2d, 465, 469, ‘ * * * is not required to monitor the operation or to pay attention to the road and other traffic conditions’ in the absence of a showing that he has actual or constructive knowledge that the driver is incompetent or unfit to operate the vehicle.
“On the other hand, the jurisprudence has imposed upon the guest an obligation to avoid an accident or injury to himself under certain conditions. That duty has been tersely said by this Court, in Delaune v. Breaux, supra, to exist in cases where the guest ‘ * * * is aware of the fact that there is danger ahead, which apparently is unknown to the driver or may be unknown to him, or where a sudden or unexpected danger arises to the knowledge of the guest, apparently not observed by the driver * * */ 174 La. at page 47, 139 So. at page 755. In such situations, it is incumbent on the guest to warn the driver of the danger and, if he fails to do so at a time when the driver is able to avert it, his dereliction may be said to be a contributing cause of any injury he may sustain.”

61 C.J.S. verba, Motor Vehicles, § 486, p. 93, says:

“Probably the most important circumstance to be considered in determining the care to be exercised by the occupant, or his contributory negligence, is the fact that ordinarily he has no control, supervision, or management over the driver’s operation of the motor vehicle, and, except where the occupant is the owner of the vehicle, he generally is under no duty to assume active physical control or supervision over such operation or to make suggestions as to the management of the vehicle. The occupant, however, should make an effort to control the operation of the vehicle in the face of known or obvious dangers, and where it is obvious that the driver is not taking precautions for their safety, and in such a case the occupant may not be negligent in taking the wheel and swerving the car to avoid a collision with another car approaching on the wrong side of the road.”

On page 107, we find:

“An owner riding in his own automobile driven by another is bound to the same degree of care as to looking out •as is the driver, if the driver is acting for and on behalf of the owner in the ■operation of the automobile, or if the owner has not yielded to the driver a right of possession or control of the manner in zvhich the automobile is being driven.” (Italics ours.)

Page 108 contains:

“The extent of an occupant’s or guesfs duty to protest, depends on the facts and circumstances of the particular case, that is, on what a person of ordinary prudence would do, under the same or similar circumstances, with respect to protesting against the excessive or unlawful rate of speed, or other negligent or unlawful acts or conduct on the part of the driver.” (Italics ours.)

American Jurisprudence, verba Automobiles, Volume 5, page 770, says:

“On the other hand, there is the general rule that ordinarily, a passenger in an automobile should sit still and say nothing because any other course may be dangerous. At precisely what point the duty arises to change from passive reliance to active protest is largely a factual question to be properly decided by the jury upon the basis of the available facts and circumstances. Generally speaking, the duty to remain silent exists in sudden emergencies.”

In summarizing the above jurisprudence, we find that a guest has an obligation to avoid an accident when he is aware of the fact that there is danger ■ahead, which apparently is unknown to the ■driver or may be unknown to him, or where a sudden or unexpected danger arises to the knowledge of the guest, apparently not observed by the driver. Of course, this general rule depends on the facts and circumstances of each particular case, and the facts and circumstances must be weighed in each individual case to determine whether the guest was guilty of independent or contributory negligence.

Now that we have determined the law with respect to the duties of a guest-passenger, we come to the question before us, i. e., what are the duties of an owner-passenger. Certainly we feel that an owner-passenger is under a greater obligation than that of a guest passenger. We, furthermore, feel that the facts and circumstances of each individual case must be considered in order to determine whether the owner-passenger was guilty of any independent or contributory negligence. The question, therefore, to be answered is: Under the facts pertaining to the case, did the owner-passenger have any duty or opportunity to determine any danger ahead, and if so, what should she have done to avert the collision?

The facts show that the accident occurred in the early morning, the weather was cold but clear, headlights were burning on both vehicles, and a street light illuminated the intersection. The petitioner was being driven to her own work and in her own car. Her sister, who was driving, was evidently a competent driver, and she usually drove petitioner to work. On this particular morning, before entering N. 14th Street, they stopped a few moments for a garbage truck, then turned and headed north on 14th Street, drove one long city block before the accident. The driver, Mrs. McCord, testified that the motor of the car was cold and it kept bucking as they drove along until the time of the accident. The car was still in second gear at the time of the accident, and they were proceeding at a low rate of speed, less than twenty miles per hour.

The Boet car struck the petitioner’s car at its right front door, which indicates that petitioner’s car was more than half-way through the intersection at the time of the accident. Mr. Boet testified that he was also proceeding slowly, and this is indicated by the evidence that neither car travelled more than a very short distance after the impact.

Petitioner and her sister had passed the intersection on many occasions, and were well aware that the intersection was a blind one insofar as cars coming from their right were concerned. There were no stop signs on either street, and the evidence shows that although Mrs. McCord was driving slowly, she did not come to a. complete stop before entering the intersection. The evidence, however, shows that Mrs. McCord was a competent driver, at least nothing is shown which indicates any prior negligence on her part. It appears that she drove more than petitioner, and must have been as competent, or more so, than the petitioner.

Under the facts and circumstances of thi9 case we do not believe that petitioner would be duty bound to assume that her sister would be negligent and to warn her to stop at the intersection before reaching same, as the driver was as familiar therewith as was petitioner, and we feel the petitioner was safe in her assumption and had the right to assume that her sister would exercise the necessary caution at the right time. There was nothing to be alarmed about thus far. We feel that petitioner acted just like a person of ordinary prudence would have done, under the same or similar circumstances. Furthermore, we do not feel that petitioner was aware of the driver’s intention not to stop, as the record shows that the driver was proceeding slowly and the car was bucking. Certainly, under such conditions, the petitioner could not notice if the driver had released her foot from the accelerator prior to stepping on the brakes. Considering the fact that an automobile traveling at the rate of 20 miles per hour is moving at the rate of 29 feet per second and that the average driver reacts to a warning in three-fourths of a second, during which time the vehicle has moved 22 feet and at such speed the total distance required to stop is 40 feet, Blashfield Cyclopedia of Automobile Law and Practice, 9 C Section 6237, and further considering the width of Gayoso Street, of twenty-four feet, the car must have been into the intersection by the time petitioner was aware of the driver’s failure to stop. Due to the blind corner, none of the parties concerned, petitioner, her driver or Mr. Boet noticed the other car or could see the other car until just a split second before the impact, at which time it was too late to avert the collision.

After weighing all of the facts of the accident, and considering that petitioner was an owner-passenger, as distinguished from a guest passenger, we do not feel that she can be held guilty of independent or contributory negligence under the facts as presented in this case.

For the reasons assigned, our original judgment herein will be affirmed, all costs of this rehearing to be paid by the defendant.

Judgment affirmed.

ELLIS, Judge

(dissenting).

On rehearing, a much softer view of the facts has been taken. The Rodriguez automobile is described as traveling “at a low rate of speed, less than twenty miles per hour.” And the Boet automobile was also proceeding at a slow rate, since the automobiles did not travel far from the point of impact.

Be this as it may, the law applicable to these facts is, in my opinion, the same as the law which seemed applicable to the harsher fact situation.

Riggs v. F. Strauss & Sons, La.App., 2 So.2d SOI, and Horn v. Barras, La.App., 172 So. 451, were cited in support of the dissent on the original appeal. It is contended in the majority opinion, on rehearing, that neither of these cases are in point, because a third person is being sued in each of them. However, the question of the owner-passenger’s duty is exactly the same, regardless of whom he happens to sue.

In the majority opinion, on rehearing, the following rule from 61 C.J.S. verba, Motor Vehicles, § 488, p: 107, is quoted:

“ ‘An owner riding in his own automobile driven by another is bound to the same degree of care as to looking out as is the driver, if the driver is acting for and on behalf of the owner in the operation of the automobile, or if the owner has not yielded to the driver a right of possession or control of the manner in which the automobile is being driven/ ”

This is an affirmative and an independent duty placed upon the owner-passenger. Applying this rule to the facts herein presented, petitioner was duty bound to use the high degree of care which the driver is to use in keeping a proper lookout. The driver was acting for and on behalf of the owner and it is not shown that the right of possession or control of the manner in which the automobile was driven had been surrendered by the owner to the driver.

Since the law imposes a duty upon the owner-passenger, it is difficult to see how this duty may be escaped, barring unforeseen and sudden occurrences or unpredictable negligent acts by the driver. Here the Rodriguez automobile was driven into a known 'blind intersection without stopping the automobile or even slacking the speed of operation. The fact that the automobile was being operated at a speed less than twenty miles per hour would not vary the duty imposed. The slower the speed, the greater the opportunity for timely warning which is afforded the owner-passenger. In a situation such as this, there must be a point of no return, so to speak, at which the owner-passenger must reasonably realize that the driver probably has no intention of stopping for the intersection and the owner-passenger then has an immediate duty to warn the driver of his duty under the law. Upon failure to do so, the owner-passenger must suffer the consequences of his shirked duty and independent negligence.

For the reasons assigned, I respectfully dissent.


source: Caselaw Access Project

author: GLADNEY, Judge.

license: Public Domain

text:
    Jack B. FLETCHER, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Mrs. Paul H. Hagens (In Solido), Defendant-Appellee.
    No. 8523.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.

      Joseph R. Bethard, Shreveport, for appellant.
    Jackson, Smith, Mayer & Kennedy, Shreveport, for appellee.
   GLADNEY, Judge.

Plaintiff instituted this suit to recover property damages as a result of an inter-sectional collision which occurred at East Kings Highway and Youree Drive, Shreveport, Louisiana, about 9:30 o’clock A.M. on August 25, 1955. After issue was joined and trial had on the merits, judgment was rendered rejecting the demands of plaintiff and apportioning the costs of court equally between plaintiff and defendant.

It is alleged that at the time of the accident plaintiff’s son, John R. Fletcher, was driving petitioner’s 1953 Plymouth sedan on East Kings Highway at a speed of approximately twenty-five miles per hour, traveling in the right or extreme south lane of said street and approaching its intersection with Youree Drive, which intersection is controlled by electric traffic signal lights; that the light was green for East Kings Highway and just as Fletcher was entering the intersection the insured of defendant, Mrs. Paul H. Hagens, driving a Buick sedan west on East Kings Highway, undertook to make a left turn into Youree Drive in front of plaintiff’s car, and the collision resulted, causing the damage for which claim is asserted. The defendant admits the facts as set forth above subject to the following qualifications: that when Mrs. Hagens, traveling west on East Kings Highway, approached the intersection with Youree Drive, the traffic signal light was red for westbound traffic and she came to a complete stop and waited until the signal light was green; that she then signalled her intention to execute a left turn to the south and onto Youree Drive and proceeded into the intersection and commenced her turn; that at this time the driver of the Plymouth automobile was a considerable distance from the intersection and as he approached the intersection he increased his speed.

At the intersection the streets are paved, each having four traffic lanes. On East Kings Plighway there are two lanes for eastbound traffic and two for traffic traveling west, which double lanes are separated by a neutral ground, and on Youree Drive there are two lanes for traffic proceeding north and two for southbound traffic, which also are separated by a neutral strip. At the time of the accident both drivers were alone and the evidence adduced upon the trial consists principally of the testimony of the two drivers. Defendant called J. L. Netherland as an eyewitness, but his testimony added little to that of Mrs. Ha-gens. Another witness was G. G. Pierce, a city policeman, who testified he arrived shortly after the accident. His testimony related principally to the point of impact and furnished distances having some bearing on the accident. The place of impact was established as being far over on the south side of the intersection and within the traffic lane traveled by Fletcher.

The answer of defendant-appellee denied generally any negligence on the part of its insured, Mrs. Hagens, and imputing negligence to young Fletcher as a proximate cause of the collision specially plead his contributory negligence. After carefully reviewing the record and giving careful consideration to the law applicable thereto, we are of the opinion the driver of plaintiff’s automobile was guilty of negligence which was a proximate cause of the accident and, therefore, it is unnecessary to discuss at length the negligence of the defendant, Mrs. Hagens. It is our belief, however, that she was also culpable and her negligence was a causal factor in the occurrence of the collision.

Defendant alleges the driver of plaintiff’s automobile was negligent in several particulars: failing to maintain a proper lookout; failing to have his automobile under proper control; traveling at an excessive rate of speed under the circumstances; and failing to afford Mrs. Paul H. Hagens the right-of-way enjoyed by virtue of the fact that she had preempted the intersection. We are convinced Fletcher failed to maintain a proper lookout and was derelict in not having his automobile under proper control as he approached the intersection. The other specifications of fault appear to be without merit.

Fletcher entered East Kings Highway one block west of its intersection with Youree Drive and proceeded east, driving in the extreme right traffic lane. As he approached Youree Drive a truck with high paneled sides was proceeding in the same direction in the adjoining lane to his left, and came to a stop at the intersection ahead of the Plymouth. Plaintiff’s son testified he never did see the automobile of Mrs. Ha-gens before it commenced the turning movement. His explanation was that the Buick automobile was in line with the truck which latter vehicle obstructed his vision to the left as he came up to the intersection at a speed of from twenty to thirty miles per hour. The location of the point of impact indicates Mrs. Hagens had almost crossed the intersection when her automobile was struck.

Mrs. Hagens testified she observed the Plymouth approaching and as she entered the intersection and gave visible signal of her intention to make the left turn, it had reached a point approximately one hundred feet away from the intersection. - After observing the Plymouth up to this point she said she focused her attention upon the truck which was traveling in the left lane of traffic on the south side of East Kings Highway and was signalling a turn. Mrs. Plagens, therefore, was not properly observant of the approach of plaintiff’s vehicle and she frankly stated she did not see it until almost the moment of impact. Fletcher likewise admitted he did not see the Buick automobile until about the same instant the two cars collided.

The Louisiana motor vehicle traffic statute, Chapter I of Title 32 of the Louisiana Statutes Annotated-Revised Statutes of 1950, imposes upon a motorist the strict duty of ascertaining before turning left that there is no traffic approaching from either direction which would be unduly delayed thereby, and specifically requires the motorist to yield the right-of-way and not attempt to make the turn unless the way is clear. The driver is also directed to give a signal plainly visible to drivers of other vehicles of the intention to make such a turning movement before commencing the maneuver. See LSA-R.S. 32:235, subd. A, and 236, subd. B. An additional statutory provision directs the driver of a vehicle approaching, but not having entered an intersection, to yield the right-of-way to a vehicle in such intersection and turning therein to the left across the line of travel of his vehicle, provided the driver of the vehicle turning left has given the signal provided for in Section 236. See: LSA-R.S. 32:237, subd. B.

Fletcher’s testimony clearly shows he did not materially reduce the speed of his artto-mobile before passing into the intersection, and he admittedly proceeded into the intersection when his vision to the left was obscured by the truck in the adjoining lane. In this respect he was unquestionably negligent, for had he slowed his vehicle and approached the intersection in such a manner that he could observe traffic approaching from the left, the accident, no doubt, would not have occurred.

Our jurisprudence in attempting: to resolve the legal situations arising from intersectional collisions has not infrequently pointed out that a motorist whose view is obstructed at an intersection has the duty to drive slowly, so that he may stop in time to avoid striking another vehicle approaching from the intersecting street. He is not relieved of this duty merely because he happens to be driving on a right-of-way street. It is also a recognized general principle of law that where both motorists have failed to observe the other at an intersection and neither has attempted to avoid a collision until the moment of impact, both motorists should be held guilty of negligence and each denied damages. H. & G. Furniture Co. v. Duhon, La.App.1950, 46 So.2d 521; Dickinson v. Hammett, La.App.1947, 30 So.2d 152.

Sullivan v. Locke, La.App.1954, 73 So.2d 616, is a case in which the reported facts are strikingly similar to those herein presented. There, this court sustained a plea of contributory negligence which denied recovery to a plaintiff. It was plaintiff’s contention she had the right-of-way over the defendant who was engaged in attempting a left turn at the intersection. In pointing out plaintiff was not relieved of the duty of making proper observation, the court commented upon the fact that plaintiff was placed on guard by the stoppage of the cars to her left and should have realized these cars had stopped for some purpose, yet she proceeded to cross the intersection without looking to her left or ascertaining whether or not other traffic had entered or was about to enter the intersection. Numerous authorities in support of this ruling are cited and analyzed in the opinion. The Supreme Court in Kientz v. Charles Den-nery, Inc., 1945, 209 La. 144, 24 So.2d 292, 294, appropriately stated:

“It can not and will not be disputed that a motorist, who recklessly and without exercising some degree of caution enters an intersection op a favorable light, is not free from negligence if he collides with another motorist who enters an intersection on an unfavorable light. And it can not and will not be disputed that a motorist can not, in the face of imminent danger, rely upon the right of way accorded him by law.”

Another recent decision of this court, Newspaper Production Co., Inc., v. Taylor, La.App.1955, 83 So.2d 475, under facts similar to the present case, found both drivers negligent and refused relief to both litigants. The accident which caused the litigation occurred when an automobile which had passed in front of two lines of northbound traffic and while negotiating a left turn into a southbound lane was struck by northbound truck moving in the third northbound traffic lane. ' The collision took place at the intersection of Marshall Street and Franklin Street. The court held the negligence of the defendant resulted from his carelessly entering a blind intersection with a favored street burdened with unusually heavy traffic. Negligence was imposed on the driver of plaintiffs truck for proceeding past lines of stopped vehicles at an intersection without the exercise of unusual care and in failing to perceive the entrance into the intersection of a vehicle engaged in negotiating a left turn. The above referred to cases of Sullivan v. Locke and Newspaper Production Co. v. Taylor appear to be ample authority for affirming the decision of the trial court.

Counsel for plaintiff earnestly contends that recent jurisprudence has established the principle that the four lane highways are primarily for moving traffic and provisions of the State Motor Vehicle Traffic Regulatory Act do not apply with particular reference to LSA-R.S. 32:233 — the section regulating overtaking and passing vehicles. Cited to this effect is the case of Mooney v. American Automobile Insurance Co., La. App.1955, 81 So.2d 625. This case, however, is inapposite and not helpful in resolving the issues presented in the instant case. The Mooney case involved two vehicles proceeding in the same direction on a four lane highway and the accident was caused by the vehicle ahead, a school bus, pulling over into the lane to the right in which Mooney, the plaintiff, was traveling and at the instant attempting to pass the school bus. The factual situation in the case at bar involves an intersectional collision which occurred at an intersection of two main city thoroughfares, both four lane highways, and which situation required special caution on the part of drivers engaged in crossing through the intersection.

The trial judge, however, erred in apportioning the costs of court. Article 549 of the Code of Practice provides that in every case the costs shall be paid by the party cast, except where compensation has been allowed, or real tenders made, or as otherwise provided in the Code. This rule is binding upon all trial courts. Kilcrease v. Ouachita Coca Cola Bottling Co., La.App. 1939, 197 So. 165; Crespo v. Viola, 1922, 152 La. 1088, 95 So. 256. The judgment from which appealed should be amended to provide that plaintiff’s demands are rejected at his cost.

It is, therefore, the decree of this court that the judgment from which appealed be and the same is hereby amended, and as so amended, is affirmed at appellant’s cost.


author: HARDY, Judge. GLADNEY, Judge

text:
    STATE of Louisiana, Plaintiff-Appellant, v. ARKANSAS FUEL OIL CORPORATION, Defendant-Appellee.
    No. 8498.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Rehearing Denied July 11, 1956.

      John B. Smullin, George C. Gibson, Levi A. Himes, Baton Rouge, for appellant.
    H. C. Walker, Jr., John W. Haygood, George Conger, Shreveport, for appellee.
   HARDY, Judge.

This suit was instituted by the State of Louisiana for the recovery of the principal sum of $1,351.95, together with interest, allegedly due and owing in the nature of power use taxes for the period August 1, 1951 to July 31, 1954, inclusive. After trial there was judgment rejecting plaintiff’s demands, from which it has appealed.

There being no dispute between the parties as to the facts, the same were stipulated and the controversy resolved into a question of law. The State contends the tax claimed is due under the provisions of LSA-R.S. 47:1151-1160. The tax at issue in this action is levied on specifically described “prime movers” owned and operated by defendant and located at several of its gasoline plants in North Louisiana.

The stipulated facts, pertinent and material to the resolution of the issue presented, recited that defendant, in each instance and at each plant location as particularly described, owned and operated duplicate units; that defendant has paid in full the power use tax on the regular units covering the same period of time for which plaintiff seeks to collect the tax on the duplicate units; that the duplicate units were maintained by defendant as stand-by machines for emergency use in the event of any defection in operation of the regular units; that at no time during the period for which •the tax is claimed were both regular and duplicate units simultaneously used or operated; that each unit was used approximately 50%. of the time without regard to the existence of any emergency; that the alternating use of the regular and duplicate units was employed in accordance with sound engineering practice for the purpose of preventing physical deterioration through non-use; that maintenance of the alternate or duplicate units in good working order could be assured by operation of such units in actual service for approximately fifteen minutes each day, it being agreed, however, that such restricted use in the instant case would have resulted in undue inconvenience to defendant in its operational procedure.

The statutory provisions which are here involved are found in Title 47 of the Revised Statutes under Chapter 13, dealing with the Power Use Tax, and read as follows :

“§ 1151. Imposition of tax
“Every person engaged in any business or occupation in which he uses electrical or mechanical' power of more than ten horsepower and does not procure all the power required in the conduct of his business or occupation from a person subject to the tax imposed by R.S. 47:1061, shall be subject to the payment of an excise, license or privilege tax of fifty cents (50¡é) per annum for each horsepower of capacity of the machinery or apparatus known as the ‘prime mover’ or ‘prime movers’, operated by him for the purpose of producing power for use in the conduct of his business or occupation.
“The tax levied herein shall be in addition to all other taxes of every kind, and shall not affect the liability of the parties so taxed for the payment of all other state, parochial, municipal, district and special taxes levied upon their real estate and other corporeal property.
“§ 1152. Definitions
“For the purposes of this Chapter, the ‘horsepower capacity’ of machinery or apparatus shall be taken as the brake horsepower of the ‘prime mover’ or ‘prime movers’ determined according to the rules and principles as found in any recognized standard mechanical engineer’s handbook.”
“§ 1153. Exemptions and exclusions from the tax
**:(<***
“D. The tax imposed by R.S. 47:1151 shall not apply to machinery and apparatus used for stand-by or emergency purposes.”

The opposed contentions of the parties to this litigation may be briefly stated as follows:

Plaintiff, State of Louisiana, contends that power equipment, although owned for stand-by or emergency purposes, is not exempt from taxation under the provisions of LSA-R.S. 47:1153, subd. D, quoted supra, if it is regularly used. In other words, the State argues that power equipment is exempt from application of the tax only if it is maintained as stand-by equipment and used only in cases of emergency.

On the other hand, defendant contends that the duplicate facilities are exempt from taxation under the provisions of LSA-R.S. 47:1153, subd. D, notwithstanding the use of such equipment in alternate operation with regular units upon which the tax has been paid.

We think it necessary to delineate the definitions of certain terms which must be considered with relation to the issue presented, which definitions, fortunately, we find embraced in the jurisprudence of this State:

Prime Mover:
“[A] ‘prime mover’ [is an] initial source of power, as an engine or machine, the object of which is to receive and modify force and motion as supplied by some natural source, and apply them to drive other machinery, as a water wheel, a water pressure engine, a wind-mill, a turbine, a tidal motor, a steam engine or other heat engine, etc.” Coverdale v. Arkansas-Louisiana Pipeline Co., 303 U.S. 604, 58 S.Ct. 736, 738, 82 L.Ed. 1043.
Emergency:
“‘[1] Bouvier’s Law Dictionary [Rawle’s Third Revision, p. 1008] defines “emergency” as follows:
“ ‘ “An unexpected condition demanding immediate action” and then gives as synonyms: “crisis, conjecture, exigency, pinch, strait, necessity.”
“ ‘Words and Phrases has this to say on the meaning of the term “emergency.”
“ ‘ “Webster defines the word ‘emergency’ as ‘any event or occasional combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency.’” (14 Words and Phrases, Perm. Ed., p. 299.)
“ ‘Corpus Juris, vol. 20, page 499, defines “emergency” as follows:
“ ‘ “Any event or occasional combination of circumstances which calls for immediate action or remedy; a sudden or unexpected happening; any case of casualty or unavoidable accident.” (See also 29 C.J.S., Emergency, p. 760).’ ” State v. Getty, 207 La. 89, 20 So.2d 546, 549.

It is apparent that all of the machines involved, whether designated as regular or duplicate units, come under the classification of “prime movers”. Under the provisions of LSA-R.S. 47:1151 the imposition of the power use tax is calculated upon the basis of the horsepower capacity of the prime movers operated for the purpose of producing power to be used in the conduct of a business or occupation. This section further classifies the tax as being an excise, license or privilege tax.

The exemption provided in Section 1153, subd. D is clear and unambiguous, and the effect thereof is to exempt prime movers “used for stand-by or emergency purposes.”

There is no indication, even by implication, in the agreed stipulation of facts, that any of the prime movers owned and operated by defendant were used, during the period for which the taxes are sought to be collected, for emergency purposes. Indeed, there is no stipulation showing that an emergency of any nature actually occurred during the period involved.

It seems clear that the exemption provided in Section 1153, subd. D, is applicable only to machinery used for stand-by or emergency purposes. In this case, since it is shown that all machines owned and operated by defendant were regularly and alternately used, and since there is no showing of the restriction of use of the alternate or duplicate units for emergency purposes, we are at a loss to find any substantial reason for the allowance of the statutory exemption.

It is obvious that the defendant in this case maintained and operated two sets of prime movers which are referred to as “regular” and “duplicate” machines. There is no showing as to any distinction between the machines which would justify the classification of one as a “regular” unit and the other as a “duplicate” unit, and it must therefore be considered that this classification is purely arbitrary and has no bearing upon the issue presented.

We think it is incontrovertibly established by the stipulation of facts that none of the machines which are here concerned were used for stand-by or emergency purposes. It follows, therefore, that none of the machines can be exempt from imposition of the tax.

We think the point involved in this case was definitely and clearly disposed by the following observation in the opinion in State v. Getty, cited supra [207 La. 89, 20 So.2d 549]:

“' * * * the term “stand-by” as used in this Statute includes any machine or apparatus furnishing mechanical power and which is used only on occasions of sudden or unexpected breakdown or unavoidable accident * * ” (Emphasis supplied.)

The holding in the Getty case, which rejected the State’s claim to additional power use taxes, was predicated upon facts which were entirely at variance with those here concerned, for the court observed that the engines, upon which the tax was sought to be imposed, were used only on rare occasions, which were “ ‘infrequent, irregular and indeterminate.’ ” The court properly concluded that the imposition of the tax under the facts of the case would contravene the well defined rule which requires the avoidance of a harsh or unjust construction of a statute, and declared:

‘With this rule in mind, and keeping in mind the factual situation in this case, that these engines are old and are not used over twice a year and then for periods of less than a day, and are never used for pumping these wells but only when at infrequent intervals it becomes necessary to pull up worn out pipe, broker sucker rods or pumps when they need repair or replacement; and keeping in mind, too, that the Statute imposes this tax only on machinery or apparatus known as “prime movers” operated “for the purpose of producing power for use in the conduct of such business or occupation” ; and keeping in mind further that the Statute expressly provides that this tax “shall not apply to machinery or apparatus used for standby or emergency purposes;” under these conditions in the opinion of this Court to construe this Statute so as to make this tax applicable to these engines to the same extent and in the same manner as the tax is applicable to the main electric power unit which is used constantly for pumping these wells, would be a harsh and unreasonable construction of the Statute.’ ” (Emphasis supplied.)

Although the case concerned a completely different issue from the one before us, we think, the observation made in the opinion of the Supreme Court in State v. Triangle Drilling Co., Inc., 214 La. 273, 37 So.2d 598, 599, is appropriate. The court declared:

“If the owner of the machinery does not ■ use his property, he cannot be taxed under this act; if he does %ise the machinery, he is taxed * * (Emphasis supplied.)

The determinative factor in the resolution of the question presented concerns the use of the machinery. Machines used for stand-by purposes are exempt from imposition of the tax; machinery used for emergency purposes is exempt from imposition of the tax. Neither of these specific uses is established in the instant case. To the contrary, admittedly, all machines were used by defendant alternately and regularly. We are completely unable to discern any logical ground for the contention that machinery is exempt from the power use tax when it is regularly used. The mere denomination of certain machines as stand-by units is not sufficient to justify an exemption in absence of a showing that they were used only in emergencies.

As has been above somewhat casually indicated, we are entirely aware of the general rule of construction to the effect that a harsh and unjust construction of a statute should be avoided whenever possible, and that taxing statutes are to be strictly construed and any doubts resolved in favor of the taxpayer. With these principles we are heartily in accord and have not the slightest desire nor intention of departing from their application. But, in the instant case, we think there is nothing doubtful about the wording of the statute and we cannot substitute our judgment as to its wisdom for its clearly expressed meaning.

It is stoutly urged that the operation of the duplicate facilities, whether for periods of minutes or hours each day, is no concern of the State. In other words, defendant contends that no prejudice results from an operational procedure responsive to sound engineering practices and beneficial to the maintenance of the machinery. We feel quite free to concede this point but we observe, in connection with the concession, that it has no bearing upon the interpretation and enforcement of the statute. It may be as logically argued and is, we think, just as true, that the defendant pursues .this method of operation for its own benefit and in its own interest. These considerations from the opposing points of view of the State and the taxpayer, fortunately, do not require determination by this court. In the final analysis the taxpayer must determine for himself whether the benefit derived from adherence to sound engineering practices outweighs the tax incurred thereby.

The argument that the State is in nowise prejudiced by the method of operation in the instant case, inasmuch as the tax is based upon the horsepower of the machines, as a consequence of which it should not concern the State whether one machine is used continuously or a number of machines are used alternately, is not valid in view of the holding of the court in State v. Triangle Drilling Co., cited supra. Despite the fact that the power use tax is clearly designated as an annual tax, the court declared:

“ * * * it is clear that if ten users exercise the privilege of use in the operation of their business, there must be ten taxes paid by these users.”

In the light of the facts involved we can only conclude that the wording of the exemption clause, according to its clear meaning and with respect to common and accepted definitions of the terms used, has no application in this case, and it follows that the State is entitled to collect the tax which it claims.

For the reasons assigned the judgment appealed from is reversed and set aside and there is now judgment in favor of plaintiff and against the defendant, Arkansas-Fuel Oil Corporation, in the full sum of $1,501.38, with interest on the amount of $1,351.95 at the rate of 6% per annum from date of December 31, 1954, until paid, together with all costs.

GLADNEY, Judge

(dissenting).

In order to avoid conflict with the Commerce Clause of the United States Constitution, Art. I, Sec. 8, the power use tax was based upon the power generated and employed. See: Coverdale v. Arkansas-Louisiana Pipeline Co., 303 U.S. 604, 58 S.Ct. 736, 82 L.Ed. 1043, a test case wherein the impost was recognized to be a tax on the activity of generating power as distinct from the activity of applying the power to operate transmission service. It is, therefore, a privilege, excise or occupational license tax, but is in no sense a property tax, although measured by the horsepower capacity of the machinery or apparatus used in generating the power. State ex rel. Porterie v. H. L. Plunt, Inc., 1935, 182 La. 1073, 162 So. 777, 103 A.L.R. 9; State ex rel. Fontenot v. Standard Dredging Corporation, 1949, 216 La. 509, 43 So.2d 909.

In the instant case the taxpayer by having on hand the two units generated no more power than produced by one, for the units were never used simultaneously, one always remaining constantly for stand-by use. The only advantage to the taxpayer from an interchange of the units during operations is in preservation of his machinery. The state loses none of its tax thereby and hence is not prejudiced. The effect of imposing the tax pn both units is to impress each unit with a special identity not reflected in the statute. The effect of the majority opinion herein is to levy the tax as if it were a property tax on each unit, and subjects the taxpayer twice to the same burden. State v. Triangle Drilling Co., 1948, 214 La. 273, 37 So.2d 598.

I respectfully dissent.

Rehearing denied; GLADNEY, J., dissenting.


author: HARDY, Judge.

text:
    Jessie M. MATTHEWS, Plaintiff-Appellant, v. The NATIONAL LIFE and ACCIDENT INSURANCE COMPANY, Defendant-Appellee.
    No. 8499.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Rehearing Denied July 11, 1956.
    Ferdinand A. Cashio, Shreveport, for appellant.

      Wilkinson, Lewis & Wilkinson, Shreveport, for appellee.
   HARDY, Judge.

This is a suit on a policy of industrial life insurance by plaintiff as the beneficiary named in the policy which covered the life of plaintiff's minor daughter, Gloria Jean Matthews. Defendant filed an exception of no right and no cause of action based upon the contention that the policy never became effective. After hearing, the exception was sustained and the suit dismissed, from which judgment plaintiff has appealed.

The pertinent allegations of plaintiff’s petition disclose that he was solicited by one of defendant’s agents, Norman K. Michel, for the purchase of policies of insurance upon himself and the several members of his family; that as a consequence of this solicitation plaintiff made application, under date of July 23, 1954, for the issuance of several policies of insurance, including the one here concerned in the principal sum of $1,000 on the life of his daughter, Gloria Jean Matthews, then about two and one-half years of age; that, contemporaneously with the making of application for insurance, plaintiff disclosed to defendant’s agent, Michel, that Gloria Jean Matthews had recently undergone a physical examination, at which time it was determined that she suffered from a heart condition which would necessitate surgery; that plaintiff’s daughter was operated upon December 1, 1954, for the heart affection known as patent ductus arteriosus, and succumbed to surgical shock on December 1, 1954; that medical examination was neither required nor made, as a condition for the issuance of the policy sued on; that defendant’s agent, Norman K. Michel, was completely familiar with all the alleged facts and that, despite demand, defendant has refused to make payment of the policy for a period exceeding sixty days following submission of proof of loss, as a result whereof plaintiff claims the penalty of 6% interest in addition to the face amount of the policy.

The policy of insurance was attached to defendant’s exception, and the provisions thereof, which are relied upon by defendant in support of its contention, are quoted as follows:

“Effective Date — This policy shall take effect on the Date of Issue, provided the insured is then alive and in sound health, but not otherwise.
“Entire Contract — This policy includes all matter printed or written by the Company on this and the following pages and constitutes the entire agreement. All statements made by the Insured or on his behalf shall, in the absence of fraud, be deemed representations and not warranties. No agent shall have the power or authority to waive, change or alter any of the terms or conditions of this policy, nor shall it be changed in any manner except by endorsement signed by the President or Secretary.” (Emphasis supplied.)

The policy was issued on date of August 9, 1954, at which time, concededly, the insured was not in sound health.

In opposition to defendant’s position it is contended on behalf of plaintiff that defendant’s agent was fully acquainted with the true state of health of the insured, both at the time plaintiff made application and at the time defendant issued the policy, and that any false answers in the application for insurance were inserted by defendant’s agent without the knowledge of plaintiff. Upon the basis of these facts counsel for plaintiff concludes that both the knowledge and the actions of defendant’s agent are legally imputed to defendant itself and it must bear the consequences thereof. Primarily, counsel relies in support of this position upon the holding of the Supreme Court in Telford v. New York Life Ins. Co., 227 La. 855, 80 So.2d 711, 712, and the cases cited therein.

It is argued that the facts in the Telford case are identical with those concerned in the case at bar. With this assertion we cannot agree. The defense in the Telford case was primarily predicated upon the contention that the application, upon the basis, of which the policy issued, contained

“gross misrepresentations concerning his physical condition and medical history which were so material that if they had not been made the policies would not have issued.”

Unquestionably, in the instant case, if the application had disclosed the insured’s true physical condition, the policy would not have issued. But the defense here is not concerned with the issuance of the policy on the basis of the application but with the contractual provision which concerns solely and exclusively the physical condition of the insured with relation to the effective date of the policy. In other words, despite the representations made in the application and without regard to the truth or falsity thereof, the defendant here urges that the policy sued upon, by its own terms, was never effective because the insured was not in sound health on the date of issue, August 9, 1954.

We do not find that this point was involved in the Telford case, nor does the opinion indicate that the policy contained a similar provision. The application under examination in the Telford case contained the following qualification with reference to effective date:

“ ‘It is mutually agreed that: 1. Except where the proposed insurance in connection herewith takes effect as from the date of this application pursuant to the receipt attached as a coupon and corresponding in date and number herewith, any insurance issued on this application shall not go into force unless and until the policy therefor is delivered to the Proposed Insured and the premium therefor paid in full and then only if no change shall have occurred in the insurability of the Proposed Insured since the time ,of completing this application and thereupon the policy shall be deemed to have taken effect as of the date of issue specified therein.’”

Counsel for plaintiff urges that the above emphasized wording constitutes a “Sound Health” clause which contains substantially the same wording as the policy provision in the instant case. This contention is in error as it is easily perceived that the qualification on the effective date of the insurance in the Telford case rested upon a showing that no change in the insurability occurred between the time of completion of the application and the issuance of the policy. That is not at all equivalent to the very specific provision in the policy issued by the defendant in this case which made its effect plainly dependent upon the sound health of the insured upon the date of issuance.

We think much more analogous facts were involved in Shuff v. Life & Casualty Ins. Co. of Tennessee, 164 La. 741, 114 So. 637, 638, in which the court interpreted a policy provision which read as follows:

“ ‘No obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.’ ”

The effect of the holding of the court was to sustain the condition and limitation included in the policy of insurance which was not susceptible to nullification by the court on the ground that the condition had been waived by the insurer’s agent.

The holding of this court in Curry v. Reserve Life Ins. Co., La.App., 43 So.2d 312, 313, is highly persuasive in the consideration of the issue before us. The policy was issued, and the effective date was set forth as being October 26, 1948. Plaintiff sustained the injury which was the basis of his claim, on the morning of October 27, 1948. The policy was mailed by the insurer from its office in Dallas, Texas, on October 28, 1948. The policy itself contained the following provision:

“ ‘This stipulation shall take effect at 12 o'clock noon, Standard Time of the place where the insured resides, on the effective date hereof; provided, however, that this policy shall become effective only if it has been issued and delivered while the Insured is alive and in good health.’ ” (Emphasis supplied.)

We held that there was neither constructive nor actual delivery of the policy prior to the accident of October 27th and that the requirement of “good health” on the part of the assured at the time of delivery was a reasonable provision designed for the protection of the insurer.

Under the facts of the instant case there can be no issue as to the recitals of the application since the application itself has no bearing whatsoever upon the legal proposition concerned. The plaintiff accepted the policy of insurance on the life of his minor daughter on the condition, which was plainly specified in the policy, that the insured was in good health on the date of August 9, 1954. Admittedly, the insured was not in good health on the date in question, and, as a result, the policy was never effective.

The judgment appealed from is affirmed at appellant’s cost.


text:
    H. Murph HARROLD, Plaintiff-Appellant, v. J. Howell FLOURNOY, Sheriff, et al., Defendants-Appellees.
    No. 8514.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.

      Booth, Lockard, Jack & Pleasant, Wilson, Abramson & Maroun, Shreveport, for appellant.
    William L. Murdock, James W. Hammett, Robert E. Eatman, Shreveport, for Harvey D. Teasley.
    Cook, Clark, Egan, Yancey & King, Shreveport, for J. Howell Flournoy, Sheriff.
   HARDY, Judge.

This suit was instituted by plaintiff, as the owner of five mechanical devices known as pinball machines, against the Sheriff of Caddo Parish and the Chief of Police of the City of Shreveport, which officials were alleged to have possession of the machines in question. Plaintiff sought judgment decreeing him to be the owner of the machines and entitled to the possession thereof; alternatively, for the recovery of judgment in solido against the defendants' in the sum of $1,500 as the alleged value of the machines, and further prayed for a permanent injunction against both defendants enjoining, prohibiting and restraining them from confiscating or destroying the described machines. Defendants filed exceptions of no cause and no right of action which, after hearing, were sustained by the trial court, and separate judgments were rendered in favor of each defendant dismissing plaintiff’s suit, from which judgments plaintiff has appealed.

The machines described in plaintiff’s petition were seized under search warrant in a criminal prosecution against plaintiff on a charge of gambling as defined by Article 90 of the Criminal Code, LSA-R.S. 14:90. Plaintiff withdrew a previously entered plea of not guilty, entered a plea of guilty, and, upon waiving delay, was sentenced by the court. Following sentence the district attorney filed the search warrant in evidence and moved the court that the machines described therein be confiscated and destroyed. The motion, over objection by defense counsel, was sustained, and the court ordered the five pinball machines to be confiscated and destroyed by the Sheriff.

The burden of plaintiff’s petition is that the confiscated machines were erroneously classified as gambling devices and therefore the order of confiscation and destruction was illegal.

The exception interposed on behalf of defendants in this case is predicated upon a number of contentions of which we think it necessary to note only those which are, in our opinion, clearly decisive of the issues presented.

Defendants contend that the judgment and order of the Criminal Section of the First Judicial District Court in and for Caddo Parish is not subject to interference or annulment by judgment of the Civil Section of the First Judicial District Court in and for Caddo Parish. We think this contention is valid. Article 617 of the Code of Practice provides as follows:

“The execution of judgments belongs to the courts by which the causes have been tried in the first instance, whether such judgments have been affirmed or reversed on appeal.”

We think the article quoted was clearly interpreted and the question presented us was squarely decided by the Supreme Court in Arthurs v. Villere, 43 La. Ann. 414, 9 So. 126, 127. The court held that the execution of a judgment can be enjoined by no other court than that from which the writ was issued, and specifically declared that a defendant

“ * * * cannot be sentenced by one jurisdiction, and be absolved by another.”

In further connection with this point the opinion of the court stated:

“If it had jurisdiction, surely the execution of the writ could not have been arrested by the civil district court, which has a civil jurisdiction only, which is vested with no supervisory control over the criminal district court, that rendered the judgment, and which, therefore, had no right to interpose its authority. 'State ex rel. Walker v. Judge, 39 La.Ann. 132, 1 So. 437. If the criminal district court has no jurisdiction, the complainant should have applied to it for redress, and, if he was entitled to relief and the same was denied him, he could not have been left without a remedy. He could have obtained such either by appealing, or, in case of urgency, by invoking such conservatory measures * * *. It follows from those considerations that the criminal district court has the exclusive power of arresting its own process * *

The Villere case was followed in Carre v. International Car Co., 128 La. 205, 54 So. 740, and Osborn v. City of Shreveport, 143 La. 932, 79 So. 542, 3 A.L.R. 955, in which the Supreme Court specifically declared that a criminal court in the exercise of its constitutional jurisdiction cannot be ousted thereof by order of a civil court, which possesses no supervisory jurisdiction.

Unquestionably, the plaintiff in this case, at the time the order of confiscation and destruction of the machines of which he was the owner was entered by the Criminal Section of the Court, could have moved for an appeal from such order, and, if such motion was refused, could have applied for conservatory writs. This action was clearly available and would have afforded a full measure of protection of plaintiff’s rights. Since, however, plaintiff permitted the action to be taken without asserting these rights, we are convinced that he lost the opportunity to seek redress, which could not later be asserted in an entirely distinct forum.

Counsel for defendants further tír'gé that the order issued by the Criminal Section of the District Court is not susceptible of collateral attack. This proposition appears to us to be more in the nature of an extension of the principle above considered than a separate and distinct ground of attack. Nonetheless, we think the position is supported by the provisions of Article 397 of the Code of Practice, dealing with third oppositions, which require that opposition be made before the court which has granted the order of seizure or judgment under which seizure has been effected.

We are so convinced that the reasons above stated conclusively support the ruling of the lower court that we find it unnecessary to consider the other points upon which defendants rely.

It suffices to observe that under our appreciation and understanding of the provisions of LSA-R.S. 15:43(3) and 15:48 the Judge of the Criminal Section of the District Court was under the mandatory duty to order the destruction of the machines seized under the execution of the search warrant. These sections, respectively, authorize the issuance and execution of a warrant to search for and seize any gambling apparatus or implements and require the destruction of such properties so seized, under the direction of the Judge.

It is noted that counsel for plaintiff strenuously argues that the seized machines in the instant case are not subject to destruction, citing in support of this position the holding of this court in Malone v. Sale, La.App., 16 So.2d 564. Our action in the Malone case was predicated upon the conclusion that no legal authorization justified the destruction of the seized alcoholic beverages. Quite to the contrary, in the instant case the statutes provide for the destruction of the machines under seizure, as we. have above pointed out..

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.


text:
    SPOT COMMISSION CLUB, Inc., Plaintiff-Appellant, v. J. Howell FLOURNOY, Sheriff, et al., Defendants-Appellees.
    No. 8515.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Booth, Lockard, Jack & Pleasant, Wilson, Abramson & Maroun, Shreveport, for appellant.
    . William L. Murdock, James A. Hammett,, Robert E. Eatman, Shreveport, for Harvey D. Teasley.
    Cook, Clark, Egan & King, Shreveport, for J. Howell Flournoy.
   HARDY, Judge.

This is one of three cases consolidated for purposes of appeal, the others bearing Nos. 8514 and 8516, on the docket of this court. Harrold v. Flournoy, 88 So.2d 457, and S. & H. Novelty Co. v. Flournoy, 88 So.2d 460. As conceded in the brief filed by plaintiff’s counsel, all cases involve identical issues, for which reason counsel filed one brief covering all three cases.

The opinion of this court has been fully set forth in the case of Harrold v. Flournoy, No. 8514, which has been this day decided, La.App., 88 So.2d 457.

We think it necessary to make only one further observation in connection with the instant case. The record discloses that, following the action of the court ordering the confiscation and destruction of the machines involved, the defendants moved for an appeal to the Supreme Court of Louisiana from that portion of the sentence, which appeal was granted by the court and made returnable to the Supreme Court of Louisiana on or before December 1, 1955. The record does not indicate whether this appeal was perfected but, in any event, we think the procedure for the entering of the appeal was eminently appropriate and would have afforded plaintiff the opportunity for the relief which he erroneously seeks in this action.

For the reasons assigned in our opinion to which reference is above made, the judgment appealed from is affirmed at appellant’s cost.


text:
    S. & H. NOVELTY COMPANY, Plaintiff-Appellant, v. J. Howell FLOURNOY, Sheriff, et al., Defendants-Appellees.
    No. 8516.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Booth, Lockard, Jack & Pleasant, Wilson, Abramson & Maroun, Shreveport, for appellant.

      William L. Murdock, James W. Hammett, Robert E. Eatman, Shreveport, for Harvey D. Teasley.
    Cook, Clark, Egan & King, Shreveport, for J. Howell Flournoy.
   HARDY, Judge.

This suit involves admittedly identical issues with those which appear under Nos. 8514 and 8515 on the docket of this court, entitled, respectively, Harrold v. Flournoy, 88 So.2d 457 and Spot Commission Club, Inc., v. Flournoy, La.App., 88 So.2d 460, which have been this day decided.

For the reasons assigned in the opinion of the court in the case of Harrold v. Flournoy, No. 8514 on the docket of this court, 88 So.2d 457, the judgment appealed from is affirmed at appellant’s cost.