author: McBRIDE, Judge. JANVIER, Judge.

text:
    Mr. and Mrs. Hillard COVEY v. MARQUETTE CASUALTY COMPANY et al.
    No. 20464.
    Court of Appeal of Louisiana. Orleans.
    June 15, 1955.
    On Rehearing Jan. 3, 1956.
    Bernard J. Bagert, New Orleans, for plaintiffs and appellants.
    James- J. Morrison, New Orleans, Rudolph R. Schoemann, New Orleans, and White & Bowes, Gretna, of counsel, for defendants and appellees.
   McBRIDE, Judge.

This is one of the two consolidated cases which grew out of the automobile accident which occurred in the bridge circle in Jefferson Parish on November 16, 1952. The plaintiffs are Hillard M. Covey, the driver of one of the automobiles involved, and his wife, Mrs. Lettie Allen Covey, who was his guest passenger seated beside him in the automobile. Their suit, which is directed against Alfred J. Landry and Marquette Casualty Company, his insurer, was dismissed and they have appealed.

For the reasons stated in the opinion and decree this day handed down by us in the case of Jacobs v. Landry, La.App., 82 So.2d 481, Mr. and Mrs. Covey are entitled to recover their damages from Alfred J. Landry and Marquette Casualty Company, in solido.

At the outset we are constrained to say that Mr. and Mrs. Covey have greatly inflated their claims and have been guilty of making certain allegations which have absolutely no foundation.

Covey seeks recovery of $800 for medical expenses incurred in connection with his wife’s injuries, $250 for the services of a maid allegedly employed while his wife was incapacitated, $280 for loss of his salary for two weeks, $409.44 for damages to his automobile, and $1,500 for personal injuries. He alleges he suffered extensive bruises, was shaken up, and experienced extreme shock and nervousness as a result of the injuries to his wife. Covey cannot recover for personal injuries as he was not injured in the collision between the two automobiles and he cannot recover for mental suffering because of injury to his wife. Brinkman v. St. Landry Cotton Oil Co., 118 La. 835, 43 So. 458; Sperier v. Ott, 116 La. 1087, 41 So. 323, 7 L.R.A.,N.S., 518; Hughes v. Gill, La.App., 41 So.2d 536; Seligman v. Holladay, La.App., 154 So. 481; Sherwood v. Ticheli, 10 La.App. 280, 120 So. 107; Alston v. Cooley, 5 La.App. 623; Barrere v. Schuber, 5 La.App. 67; Knox v. Allen, 4 La.App. 223.

Mrs. Covey seeks $24,750 for her physical injuries.

There is testimony from Mrs. Lozier, the cousin of Mrs. Covey who was a passenger in Covey’s automobile, to the effect that after the accident all of those who had been riding in the automobile went to an establishment where they drank coffee, and this testimony was adduced by the defendants in an endeavor to show that no one had been injured in the accident. It may be that the party did partake of coffee after the accident happened, but Mrs. Lozier was handling the truth lightly when she testified that injuries had befallen no one.

On the evening of the accident Mrs Covey was taken to the Accident Room at Touro Infirmary where she was seen by Dr. Fisher, the same physician who treated Mr. and Mrs. Jacobs. She was admitted to said hospital on the same date and remained there two days when she deserted. She stated she was compelled to leave because of her husband’s financial inability to pay a hospital bill. She was readmitted November 19 and remained in Touro Infirmary until November 25. On December 27, 1952, she again went to the hospital where she stayed until January 1, 1953, as a result of an aggravation of her injuries which she experienced while descending a stairway in her home.

We have not the slightest doubt that Mrs. Covey’s three stays in the hospital were made necessary by the injuries she received in the accident. Dr. Louis J. Gehbauer, on behalf of Landry’s insurer, examined Mrs. Covey on January 29, 1953, and in connection with the examination had occasion to check the hospital records. These show that when Mrs. Covey was first admitted to the infirmary the diagnosis was emotional disturbances, lumbosacral sprain, and multiple contusions. On the second admission she exhibited the same complaints. The X-rays showed some spasm of the muscles of the lumbar spine; the X-ray pictures of the abdomen were negative. The third admission to the hospital was occasioned as a result of severe pains in the back.

Dr. Fisher testified that in addition to the back injury which was of moderate severity, Mrs. Covey suffered shock and sustained multiple contusions, a sprain of the left ankle, and distended abdomen. He stated his patient was not free of back symptoms until about the middle of September, 1953; the distension of the abdomen was only a temporary condition; the shock was of a mental type and lasted for about twenty-four hours; the ankle sprain disappeared in three or four weeks. Dr. Fisher says he saw Mrs. Covey on sixty-five occasions in all.

Dr. Gehbauer, who examined Mrs. Covey on January 29, 1953, at the behest of Marquette Casualty Company, found that she had suffered mild multiple contusions, a lumbosacral sprain, a sprain of the ankle, and some emotional disturbances; the doctor thought her multitude of complaints suggested neurotic tendencies. He believed the period of disability from the back injury would not last more than a few days. Dr. Fisher testified that he treated Mrs. Covey’s back until the middle of September 1953 and his testimony is not contradicted.

On October 7,1953, Dr. Edmund Connely, a neurologist, saw and examined Mrs. Covey and came to the conclusion that there was no evidence of organic nerve lesion or neurosis.

We feel sure that Mrs. Covey suffered no permanent injuries in the accident, and while the injuries were not of serious character, they were painful and effected her incapacity for a considerable period. Mrs. Covey and Dr. Fisher attributed certain emotional disturbances to the accident, but we believe these were due to other causes. Dr. Fisher conceded that the emotional upsets could just as well have been caused by an unhappy domestic life. The record shows that in November of 1953 Mrs. Covey filed suit for a separation from bed and board in the Civil District Court for the Parish of Orleans, in which she alleged that her husband had been continually guilty toward her of physical and mental cruelty.

Mrs. Covey is 48 years of age, and considering the nature of her injuries, the pain and discomfort, her hospitalization on three occasions and the incapacity for a time, we believe that an award to her of $2,000 would be adequate under the circumstances.

Hillard M. Covey is entitled to recover the sum of $250 which he alleged and proved was incurred for his wife’s hospitalization; he is also entitled to recover $345 for Dr. Fisher’s bills, $50 for drugs and medicines, and $409.44 for the damage inflicted on his automobile, or a total of $1,054.44.

Covey also claimed that because of his wife’s incapacity he employed a maid for four months at a daily wage of $3 and for this he seeks $250. We are not satisfied with Covey’s testimony that such expenditure was made, so we will disallow the claim therefor. Nor can Covey recover $280 for loss of salary for a two-week period. He claims he remained away from his work to take care of his wife. Of course there should be no recovery for this item as it seems to us that Covey should have made other arrangements to have his wife’s welfare looked after.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of Hillard M. Covey for $1,054.44 and in favor of Mrs. Lettie Allen Covey for $2,000 against Alfred J. Landry and Marquette Casualty Company, in solido, with legal interest from judicial demand; it is further ordered, adjudged and decreed that the reconventional demand of Alfred J. Landry be dismissed; all costs are to be paid by the defendants.

Reversed.

On Rehearing

JANVIER, Judge.

On June 15, 1955, in our original opinion we set forth our reasons for concluding that Alfred J. Landry and Marquette Casualty Company were solidarily liable' to Mrs. Lettie Allen Covey in the sum of $2,-' 000 and to Hillard M. Covey in the sum of $1,054.44, and we rendered our decree in accordance with those conclusions.

After that decree had been rendered, it was brought to our attention that, before the matter was submitted to us, Hillard M. Covey ha.d died and it necessarily followed that our decree in his favor was a nullity. Accordingly we granted a rehearing but limited the rehearing to the substitution of proper parties in lieu of the deceased plaintiff, Hillard M. Covey.

Mrs. Covey then appeared by motion to which were attached affidavits purporting to show that she was the widow of the deceased, Hillard M. Covey, and that one minor child, Ernest Maurice Covey, survived the deceased, and Mrs. Covey suggested in the said motion that she, as widow, and Ernest Maurice Covey, as the sole minor child of the deceased, should be substituted in his stead as parties plaintiff and permitted to proceed with the prosecution of the suit in accordance with the provisions of Article 2315 of our LSA-Civil Code. In the same motion, Mrs. Covey suggested that, in the alternative, that it be determined-that the proper parties to succeed to the rights of the deceased, Hillard M. Covey, were not his survivors as designated in the said codal articles but were his legal heirs, she, as administratrix of the estate of the deceased, should be permitted to prosecute the action for the benefit of his heirs, and in that alternative she asked that-in her said capacity she be substituted as party plaintiff. To this motion, in addition to the affidavits, Mrs. Covey attached a copy of her letters of administration showing her to be the administratrix of the estate of her deceased husband.

The defendants, being confronted with our decree which was final insofar as it held that they were liable to Mrs. Covey in the sum of $2,000 and to Mr. Covey in the sum of $1,054.44, and realizing that there remained open only the question of who, if anyone, should be substituted as 'party plaintiff in the place of Covey, applied to the Supreme Court for a writ of certiorari and review. This application was refused by the Supreme Court with the statement: “Application premature since the Court of Appeal has granted a rehearing in this case.”

On behalf of defendants there was then filed a motion suggesting that the Court strike and suppress the motion to make parties and the evidence sought to be introduced on the ground "

“that the Court does not have jurisdiction rationae materiae under the Constitution and laws of the State of Louisiana to receive said evidence herein, that to grant said motion would deprive defendants of their opportunity to confront and to cross-examine the appellants as to the existence of other children or heirs of the deceased, and would expose defendants to the possibility of other suits by other children of the deceased not parties to this proceeding, should same exist, at the same time depriving defendants of any opportunity to protect themselves from suits or claims by other children of the said deceased who may exist, and who are not parties to, this proceeding.”

The first question which is presented is whether or not, after the death of Hillard M. Covey, the suit on his behalf abated, that is, whether or not by his death the defendants were relieved of all possibility of liability to anyone at all, and the second question is, if the action did not completely abate, who should be substituted in the place of the deceased Covey.

It is important at the outset that it be noted that the original plaintiff, Hillard M. Covey, had not obtained a judgment in his favor at the time of his death, and that therefore there existed in him at that time no property right which could be inherited by his heirs at law. As the Supreme Court said in Gabriel v. United Theatres, Inc., 221 La. 219, 59 So.2d 127, 129:

“ * * * Had the plaintiff Alice Gabriel Strain prevailed in the district court, and defendants appealed, there is no question that Marcelian Strain, might, under the general laws of inheritance, have succeeded to her property rights under such judgment, in the absence of other heirs with a higher right. However, she was cast in the district court, and having lost her suit, had no proprietary rights to transmit. The only right to which the husband succeeded was the statutory survival of action under Article 2315, which had to be exercised in accordance with the terms of the statute. * * * ”

In discussing this principle the Court, in McConnell v. Webb, 226 La. 385, 76 So.2d 405, 408, cited its earlier decision in Castellucio v. Cloverland Dairy Products Co., Inc., 165 La. 606, 115 So. 796, and, referring to that decision, said that the heirs of the plaintiff were allowed to prosecute the appeal

"because the demand of the plaintiff had been reduced to a judgment in his favor in the lower court and it was held that ‘this judgment, being property, necessarily formed a part of the estate transmitted by the deceased to his heirs, and was acquired by them immediately after his death.’

By the principle that there are no rights in the legal heirs where the original claimant has filed suit on a non-heritable claim and has died without obtaining a favorable judgment, the heirs and, consequently, the administratrix, are eliminated from further consideration, and there is then presented the question of whether there remains any right in the survivors who, under Article 2315 of the LSA-Civil Code, are designated as the persons to whom “this action shall survive in case of death”.

Though various judicial decisions have evidenced disagreements or misunderstandings as to the effect of the survival provisions, which, as a result of amendments, now appear in Article 2315 of our LSA-Civil Code, it seems to us that the last of those decisions, McConnell v. Webb, supra, very clearly distinguishes between the original right of the injured party which is not inherited and the right of the designated survivors when the injured party has died before obtaining a favorable judgment. In that decision it is stated that

“such actions do not survive in favor of the heirs of the deceased party who sustained an injury for which he had instituted an action in damages.”

The Court recognized that, though the right of action does not survive “in favor of the heirs”,- there is a right of survival “in certain designated persons”, saying:

“It is hardly necessary to have to state, of course, that a series of amendments to Art. 2315 have from time to time provided for survival of such actions in certain designated persons in the order of succession as therein specified. * * * ”

And then the Court, after making that statement, continued to say that it was the estate of the decedent which was attempted to be substituted as party plaintiff, since the widow appeared in the capacity of admin-istratrix and that the administratrix had no rights as such to be substituted. And the Court said that this was so because, should the administratrix be substituted as party plaintiff, any award which might be made to her would not go solely to the survivors mentioned in Article 2315, but would go to “his creditors, if any, or any other interested parties as well as his heirs.”

It is quite clear then that in such situation as that presented here, which cannot be distinguished from that which confronted the Court in McConnell v. Webb, supra, the legal heirs of the decedent have no rights which can be asserted in the suit which was filed by the original plaintiff. That action is not heritable and therefore they have not inherited it. However, the article, as now amended, creates a new right in the various survivors who are designated and under that right they, as survivors though not as heirs, may, by substituting themselves, continue with the suit which was commenced by the original plaintiff, provided they do so within one year of the death of the original plaintiff.

In McConnell v. Webb, supra, the Supreme Court discussed fully the several non-abatement statutes which have been considered and held that those statutes, which are now to be found in LSA-R.S. 13:3349 and as now further amended by Act 59 of 1954, do not affect such actions as this and that such actions being personal do abate by the death of the original plaintiff to the extent that the right which was asserted by the original plaintiff is not inherited by the heirs; that that action does abate. However, as shown by the Court in McConnell v. Webb, supra, a new right of the survivors comes into existence and may be exercised by them. Having found then that the original action had abated and that only the administratrix had attempted to make herself a party, the Supreme Court dismissed the appeal. Here there are survivors who have appeared and have asked to continue the action, and we think that because of the provisions of our codal article, they have that right, provided they can show that they are the survivors.

We cannot refrain from commenting on the strange result which may sometimes occur if there be applied in all cases the principle that heirs at law do not succeed to the rights of the original plaintiff who, having brought suit under Article 2315, dies before obtaining a favorable judgment. Let us assume that a married man who is the father of minor children and major children has, as the sole asset of his separate estate, one valuable building valued, let us say, at $100,000 and that this building is destroyed by the carelessness of a third person, and that the owner, having brought suit against the tortfeasor for the value of the destroyed building, dies before obtaining judgment.

If his heirs have no right to continue the action, it may well be that this entire separate estate of the deceased will thus have been diverted from his heirs to his “survivors” and that thus the major children take no part of the recovery in damages which goes entirely to the wife who had no interest in his separate property and to the minor children.

If, however, it should be held that wherever there are physical injuries and also property damage the claim for physical injuries and resulting suffering is non-heritable and therefore does not pass to the heirs, but goes to the survivors designated in the codal article, and that the claim for damages to a physical asset is heritable and passes to the heirs at law, then there would often be two different groups of claimants among whom would be divided the two separate claims.

We see no solution to the problem except to follow the established jurisprudence to the effect that, where the claim is one arising under Article 2315, at the death of the claimant the survivors and not the heirs have 'the right to continue the action.

Since the defendants have put at issue the question of who are the survivors, we find it necessary to do what the Supreme Court ordered done in Gabriel v. United Theatres and remand this case to the District Court for the sole purpose of having parties plaintiff made herein, “if legally possible to do so, but for no other purpose.” [221 La. 219, 59 So.2d 129.]

It is therefore ordered, adjudged and decreed that, insofar as our decree ran in favor of Hillard M. Covey, it be annulled, avoided and reversed, and that the matter be now remanded to the Twenty-fourth Judicial District Court for the Parish of Jefferson for further proceedings according to law and consistent with the views herein expressed.

Reversed in part and remanded.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    John E. SMITH v. W. HORACE WILLIAMS COMPANY, Inc., and The Employers’ Liability Assurance Corporation, Ltd.
    No. 20507.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1956.
    Rehearing Denied Jan. 16, 1956.
    Writ of Certiorari Denied Feb. 23, 1956.
    Frederick J. Gisevius, Jr. and Robert F. Shearman, New Orleans, for plaintiff-ap-pellee.
    Deutsch, Kerrigan & Stiles, New Orleans (Marian Mayer and Christopher Tompkins, New Orleans, of counsel), for defendants-appellants.
   JANVIER, Judge.

This remarkably complicated controversy over a claim for workman’s compensation results from an accident which occurred on July 24, 1952, while the plaintiff, John E. Smith, was carrying out the duties of his employment by W. Horace Williams Co., Inc.

Smith sustained physical injuries which admittedly totally disabled him until March 6, 1953 when, by all of the physicians and surgeons of his employer and its insurance carrier, The Employers Liability Assurance Corporation, Ltd., he was discharged as able to return to his former employment. Full compensation was paid to him to April 13, 1953, at which time his attorneys were sent a letter which contained the following paragraph:

“It would seem that we have fulfilled our obligations under the Louisiana Compensation Act to Mr. Smith and that no further benefits are in order. However, if Mr. Smith is still alleging disability then will you please furnish us with medical reports supporting his claim.”

Not satisfied that he was able to. return to work and taking the position that he was still totally disabled, Smith consulted a general medical practitioner of his own selection who, feeling that the condition of Smith was such as to' require the attention of an orthopedic specialist, referred .him to Dr. W. Hammond Newman who specializes in that field. From that time on he was examined by numerous orthopedic specialists, neuro-surgeons and other doctors selected by him and numerous X-ray photographs were taken. On January 22, 1954, he filed this suit seeking maximum compensation for total permanent disability, together with an allowance for all medical expenses which he had incurred, penalties as provided by law in certain cases, and attorney’s fees.

The defendants are the employer and its said insurance carrier. Both admit the occurrence of the accident, but aver that at the time of his discharge as able to return to work, he was paid compensation for the full period of disability and that all necessary medical expenses were defrayed by them.

From a trial which required more than two weeks, there resulted a record óf more than 1,200 pages of testimony, a separate volume of pleadings more than three inches thick, and a package of more than fifty exhibits. There was judgment in favor of plaintiff for $30 per week for 400 weeks subject to a credit for such compensation payments as had been made. The claim for additional medical expenses and for penalties and attorney’s fees was rejected.

Defendants appealed devolutively and suspensively, and plaintiff answered the appeal praying that he be awarded additional medical expenses amounting to $790.-54; that he also be awarded the penalty provided for arbitrary or capricious refusal to make payment, and for attorney’s fees at 20% of the entire amount.

In holding that the plaintiff was entitled to compensation for total permanent disability, the District Judge rendered very brief reasons reading as follows:

“The Court, after considering the pleadings, evidence, argument and briefs of counsel, is unable to find from the evidence that the plaintiff is a malingerer and has attempted to perpetrate a fraud upon the court, but must hold that he is totally and permanently disabled and entitled to compensation at the rate of $30.00 per week, beginning July 24, 1952, not to exceed 400 weeks * *

Counsel for defendants vigorously criticize these reasons, saying that it would appear that the District Judge approached the problem from the wrong end, and that he seems to have decided that the burden of proof rested upon defendants to prove that the plaintiff is not seriously injured, is able to return to work, and is in fact a malingerer, whereas it is well settled that in compensation cases, as in all others, the initial burden rests upon plaintiff.

It is true that the District Judge did commence his reasons for judgment .with a reference to the contention of the defendants concerning malingering, but he concluded'by finding that the plaintiff was actually disabled. Had he first found disability and then stated that he did not find that the plaintiff was malingering, his reasons would not have been subject to the criticism which is now hurled at them.

That the accident was a serious one is obvious. The plaintiff was working on the upper end of a boom of a crane which toppled over. There is some dispute as to the height from which he fell. The distance of 45 feet appears in statements of various witnesses. Defendants contend that he was about 20 or 25 feet from the ground and that when thfe boom toppled over he was thrown a distance of 20 or 25 feet from its base, and that the 45 feet mentioned results from the additional height of about 25 feet and the distance of about 20 feet from the base of the boom, whereas the plaintiff contends that he was 45 feet in the air when he fell to the ground.

It is not necessary that we reach a conclusion on this issue. He fell from a considerable height, and his head hit the ground and was embedded-for a time in the mud near the base of the machine. He was taken to a local hospital where it was found that his injuries consisted of a fracture of the right mandible, fracture of the second, third and fourth right transverse processes of the lumbar vertebra, fractures of the third and fourth left transverse processes of the vertebra. It also appears that there was a fracture of the spinous process of the left third lumbar vertebra. There were also numerous cuts and abrasions, particularly on his face and lips and inside his mouth. At that time it seems that there was no finding of any serious injury to any of the bones of or near the neck.

Plaintiff remained under the treatment of the various physicians and specialists of the defendants until his discharge on March 6, 1953.

Never have we been confronted with a more formidable record of contradictory medical testimony. We feel that no good purpose would be served by a detailed discussion of the tremendously technical aspects of the contradictory evidence even if we felt 'ourselves able to thoroughly understand and estimate this evidence in detail.

We are absolutely convinced that, so far as the various fractures and other injuries to which we have referred are concerned, the plaintiff has fully recovered, except for the contention as to the present condition ©f his neck and shoulder. All of the fractures seem- to have completely knitted and there seems to be no residual disability from any of them except for the fact that it is contended now that the nerves of his neck have been so injured that he cannot hold his head in a proper position and must keep his head bent forward and his right shoulder elevated considerably above its normal position.

■ It seems very certain that when the plaintiff, after being discharged by the defendant’s experts, consulted his own general practitioner and was referred by him to Dr. Newman as an orthopedic specialist, Dr. Newman found that the knitting had been complete and that no disability resulted from the fracture.

That the original fractures no longer caused disability is made evident in two ways — first, by the testimony of Dr. Newman and, second, by the vigorous attempt of counsel for plaintiff to avoid the effect of what they knew that testimony would be. Plaintiff had subpoenaed Dr. Newman. Yet counsel for plaintiff, during his examination of Dr. Newman, stated that he was examining him as a “hostile” witness. The District Judge stated that he considered Dr. Newman a witness for plaintiff.

Dr. Newman found evidences of the limited fractures, but very clearly stated that the plaintiff could return to work if he was willing to do so.

When we consider the testimony of the other physicians and experts, we reach the conclusion that there can be no doubt that there was a substantial preponderance of expert opinion to the effect that plaintiff is no longer disabled. As a matter of fact, it seems that, while there has been no admission by counsel for plaintiff that the original fractures have knitted and that there is no disability resulting from them, it is evident that the major portion of counsel’s argument was devoted to what is now the principal contention,- — that the disability results from a fracture 'of the mandible which, in turn, interferes with the operation of- the nerves of the neck, which interference also in turn prevents plaintiff from maintaining his head in an erect position, requires him to stoop forward, and prevents him from maintaining his right shoulder in its normal position.

Strangely, enough there was no reference to any such abnormality of the right shoulder in the original contentions and no X-rray photographs of that area were deemed necessary.

' There is considerable lay evidence of neighbors and friends on the one hand, and of two detectives and an adjuster for the defendant insurance company on the other. The neighbors and friends are certain that plaintiff is permanently incapacitated and that his neck and head are constantly bent forward and his right shoulder is always abnormally elevated, whereas the two detectives and the adjuster who talked with him at unsuspicious times all stated that they saw nothing abnormal about plaintiff’s posture. One of the detectives stated that when he saw him at an unsuspicious time his posture in no way resembled that which was evident when the plaintiff was in the courtroom during the trial.

Referring again to the medical evidence, let us say that there can be no doubt that the medical experts who testified on behalf of plaintiff, with the exception of Dr. Newman, were of the opinion that plaintiff was totally disabled. However, as justification of our very grave doubt, let us quote from the reports of several of the experts who hold contrary opinions.

We quote from the report of Dr. Berkett:

“ * * * It is my feeling that this patient is able to return to his previous occupation from the point of view of his back and cervical spine, * * , ”

We quote from another report of Dr. Berkett:

“ * * * It is my opinion that this patient has recovered from any injuries that he had sustained to his cervical spine and his back, as a result of the injury of July 24, 1952, without appreciable disability. * * * ”

Dr. Howard Kerr, another expert, in his report, said:

“Examination of the spine revealed no restriction of motion in any direction and there was normal reversal of the lumbar curve on forward bending. There was no tilt or list and no para-vertebral muscle spasm.”

And his conclusion was stated as follows:

“The examination of this patient failed to disclose any objective findings with respect to his back and neck and revealed no evidence of disability which is incapacitating for the performance of his work.”

Dr. Lyon K. Loomis in his report made the following statement:

“ * * * I see no reason why this man cannot be returned to the full duties of his regular work.”

We repeat however that in spite of the evidence of these experts, there is evidence to the contrary given particularly by Dr. Blaise Salatich and Dr. Jose Garcia-Oller.

When Dr. Salatich was placed on the stand, his qualifications as an expert orthopedist were questioned and the District Judge on several occasions stated that he hoped that this Court would advise him as to whether Dr. Salatich should be considered an expert.

Although Dr. Salatich conceded that he had never been admitted to the American Board of Orthopedic Surgery and had twice been unable to pass the second examination of that Board, and that the third time the Board had refused to permit him to take the examination because he did not devote himself exclusively to that specialty, it appears that he graduated from the medical college of the Louisiana State University in 1939, and that since that time he has practiced his profession, specializing in orthopedic surgery. He stated that he is recognized as an Orthopedist in Charity Hospital, Hotel Dieu, Lakeshore Memorial Hospital, and Metairie Memorial Hospital, and as a consultant at the Southern Baptist Hospital. He also stated that until the time of its “deactivation” he “worked on the Independent Unit Orthopedic Division” of Charity Hospital, having been appointed “Chief of Orthopedics.”

It is regrettable that the doctor has not been admitted to membership in the American Board of Orthopedic Surgery, but that fact in our opinion would not justify refusal to accept his testimony as an expert in that specialty to which he has devoted himself since his graduation in medicine, though it might affect the weight which should be given to his opinions when contradictory to opinions of those who have qualified for admission in that well recognized group of specialists. The doctor himself, by his own efforts to gain admission, has evidenced the desirability of being recognized by that group.

We would have been more favorably impressed with the testimony of the doctor had he not laid so much stress on the great number of “cases” which he had “won” in various courts as compared with the few which he had “lost”. We have always entertained the view that doctors neither “win” nor “lose” cases in which they testify as experts.

The interesting thing about the testimony of Dr. Garcia-Oller is that apparently he now is of the opinion that the disability results from the neck condition about which little or nothing was said when the accident first occurred. It is evident that this condition was not considered serious then, since, as we have already said, no X-ray photographs were made of that area. This expert was of the opinion that the loss of sensation in that area “is due to a fracture of the jaw with laceration to the nerve of the jaw”, and that as a result of that, “the back of his head * * * was tilted to the left and the chin to the right and the right shoulder was considerably at a different height than the left shoulder.”

A study of this tremendous record leaves us almost hopelessly confused. All that we can say is that were it not for the finding of the District Judge that the plaintiff is disabled, we would have reached the conclusion from the record that he has not made it certain that such disability actually exists. However, in view of the finding of the District Judge we think that it would not be proper to say that there is manifest error and therefore we hesitatingly apply the well established doctrine that the finding of a District Judge on a question of fact should not be disturbed unless manifestly erroneous.

Counsel for plaintiff assert that if compensation is due there should be assessed a penalty of 12 per cent because of the refusal of the insurer to make payment within sixty days of the receipt of proof, and they base this contention, they say, on the “Workmen’s Compensation Law of this State, more particularly, Act 417 of 1952.”

Act 417 of 1952, which is found in LSA-R.S. 22 :658, in providing for this penalty in certain cases provides that it is due where there is failure, but only “when such failure is found to be arbitrary, capricious, or without probable cause”. From what we have already said it clearly appears that in our opinion there was nothing capricious or arbitrary about the refusal to make payment in this case.

The question presented by the contention of plaintiff — that the defendant, The Employers Liability Assurance Corporation, Inc., if liable to him in compensation is also liable for medical expenses incurred by him in excess of the amount already expended by it, is an interesting one.

The record shows that the insurer expended $1,374.61 for medical and hospital services and medicines. At the time of the occurrence of the accident from which this suit results the liability of the employer or the insurer for medical attention was fixed in the then applicable statute at $500. LSA-R.S. 23:1203. It is true that, by Act 322 of 1952, this amount was increased to $1,000, but that statute did not become effective until the twentieth day after the adjournment of the Legislature which adjournment was had on July 10, 1952. So that at the time of the accident the liability of the employer or its insurer for medical expenses was limited to $500. However, whether, at that time, the liability for medical expenses was fixed at $500 or $1,000 is unimportant since the insurer actually expended more than $1,000.

Our attention istcalled to a provision in a medical coverage endorsement of the policy, certain provisions of which read as follows:

“1. In addition to any payments which are required under Division (2) of Paragraph One (a) of the Policy by the provisions of the applicable Workmen’s Compensation Law, the Company will also pay the reasonable and proper cost of any additional medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines which in the opinion of the Company may be reasonably necessary for the treatment of injuries sustained by any person who is entitled, on account of such injuries, to the benefits afforded under Division (2) of Paragraph One (a) or who is entitled to such benefits under other terms of the Policy; provided, however that such person or his legal representative, however, shall, as a condition precedent to the effective operation of this endorsement, give to the Company a written release of any and all rights that he may have against any third party by reason of the expenditures made for such medical, surgical, nurse or hospital services, surgical apparatus or appliances and medicines.
“2. The Company’s liability under this endorsement shall be limited to $10,000.00 on account of each person for whom benefits are payable under Paragraph 1 of this endorsement.”

Counsel for plaintiff direct attention to these provisions and maintain that in addition to the amount which the insurer or the employer may have already paid in medical, hospital or related expenses, the plaintiff himself incurred medical attention at a cost of $790.54. And it is argued that since an injured employee, where the employer has secured insurance, may maintain a direct action against the insurer, and since the medical expenses which were paid by the plaintiff were “reasonably necessary for the treatment of the injuries sustained,” the insurer is liable to plaintiff for such additional medical expenses.

The insurer, on the other hand, maintains that there is no such liability for two reasons, — first, because under the provision relied on by plaintiff, there is no liability unless the additional expenditures “in the opinion of the company” are reasonably necessary, and second, for the reason that there is no liability under such provision unless, as a condition precedent, the injured person shall “give to the company a written release of any and all rights which he may have against any third party by reason of the expenditures made for such medical; surgical, nurses or hospital services, surgical apparatus, appliances and medicines.” And counsel for the insurer say that not only were the expenses not reasonably necessary in the opinion of the insurer, but that the insurer had no knowledge that they were being incurred.

We are of the opinion that, in such case, even if the insurer may be liable directly to the injured party for such additional medical expense there is no liability here for the reason that the insurer knew nothing about the incurring of the additional expenses and therefore had no opportunity to determine whether they were reasonably necessary.

Our conclusion is that there is no liability for additional medical expenses.

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

Affirmed,


text:
    Mrs. Augusta C. JOHNSON et al. v. SEWERAGE AND WATER BOARD OF NEW ORLEANS et al.
    No. 20413.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1956.
    Rehearing Denied Jan. 16, 1956.
    John E. Jackson, Baldwin J. Allen and John E. Jackson, Jr., New Orleans, for plaintiffs and appellants.
    George Piazza, New Orleans, Special Counsel for defendant and appellee, Sewerage & Water Bd. of New Orleans.
   JANVIER, Judge.

At about 10:30 o’clock on the morning of January 28, 1949, Mrs. Augusta C. Johnson, wife of Albert A. Johnson, while walking on the sidewalk of Poydras Street, in New Orleans, stepped upon the metal cover of a plumbing appliance box which was embedded in the sidewalk and sustained physical injuries when the cover, which was defective, gave way and her right foot and the lower part of her right leg were precipitated into the hole.

Alleging that the said box contained equipment which was a part of the system maintained by the Sewerage and Water Board of the City of New Orleans and that, for that reason, the said Board was Hable, and that the owners of the adjacent property and also the tenant in the property were also liable as a result of the defective condition of the sidewalk and because the box of which the cover was defective “contained a water valve connecting with water pipes leading from the outside water lines into' the said premises,” Mrs. Johnson, in an original and supplemental petition, brought this suit, praying for solidary judgment in the sum of $5,554.05 against the said owners of the adjacent premises, the tenant who operated a restaurant therein, and the Sewerage and Water Board of New Orleans.

In still another supplemental petition Mr. Johnson joined his wife as a party plaintiff, reiterating and adopting all of the allegations of her petition and, alleging also that he, as head and master of the community, had sustained damage, such as the loss of Mrs. Johnson’s salary and the cost of medical and other related expenses amounting in all to $554.05, he prayed for judgment for that amount, reducing the claim of his wife for her pain and suffering to $5,000.

The owners of the property and their tenant filed exceptions of no cause of action based on the contention that neither the owners of adjacent property nor the .tenant who occupies the property may be held liable for damage resulting from the defective condition of a sidewalk.

The Sewerage and Water Board filed answer in which it denied that it was the owner of the water valve in question or that it was in any way “bound, either under contract or by law,” to maintain said water valve or the box or the cover thereon.

In the Civil District Court for the Parish of Orleans the exceptions of the owners and of the tenant were maintained and the suit ordered dismissed as to them. On appeal we held that there might be circumstances under which an owner of adjacent property, or even possibly a tenant occupying such property, may be held liable where, for instance, a defect is actually created by fault on the part of the owner or of the tenant, and we reversed the judgment which had dismissed the suit as against the owners and the tenant and remanded the matter to the Civil District Court. See Johnson v. Sewerage and Water Board, La.App., 57 So.2d 923.

A compromise was then effected between the plaintiffs, Mr. and Mrs. Johnson, and the owners of the property and suit as against the said owners was dismissed. However, all rights against the tenant and against the Sewerage and Water Board were retained by the plaintiffs. The suit was also dismissed as against the tenant and all .rights were retained against the owners and the Board. The matter is now before us on appeal by the plaintiffs from a judgment dismissing their suit as against the Sewerage and Water Board.

In the sidewalk between the curb line and the property line there are three metal boxes in which service equipment of various kinds is located. Each was or should have been adequately protected by an iron cover. Nearest the curb was a large round box protected by a cast-iron cover in which, in large letters, were cast the words “Water Meter”' and “Sewerage Sr Water Board of ■New Orleans, La.” In this large box was located a water meter which, for the purpose of enabling the Board to figure the water-charge to be assessed, registers the quantity of water which passes from the mains of the Board into the private premises of the owner and of the tenant. In this box was also located a cutoff valve by which the supply of water going into the premises might be cut off by the Board.

While counsel for plaintiff made a feeble effort to convince us that there was on separate cutoff valve in this box, the record leaves no room for doubt on this point. About one foot from the large round box and between it and the premises of the owner there was a smaller square box over which there was a square cast-iron cover, and it was the defect in the cover of this box which caused the damage complained of by plaintiffs. The third metal square box situated still nearer to the property line is in no way involved in this controversy.

In the box on which there was the defective cover there was what is known as a “stop and waste valve.” This valve afforded a means by which the water supply to the premises might be cut off, and the valve was so constructed that the “waste” or drain hole on the premises side of the valve would open when the valve was cut off, with the result that when the flow of water would be cut off from the main to the premises automatically the water in the pipe lines of the premises would be drained out through this waste valve as a protection against an expected freeze or in order that repairs to the lines of the premises might be made.

The record makes it abundantly clear that this valve was in the line between the cutoff valve at the meter of the Board and the premises of the owner and that the Sewerage and Water Board had no interest whatever in this stop and waste valve, except that the regulations of the Board require that every owner should have such a valve so that the owner in case of freeze or for any other reason might cut off his own water without tampering with the cutoff valve of the Sewerage and Water Board, which was located in the larger round box nearer to the curb line.

Concerning this stop and waste valve, which is in the box which caused the damage, Mr. F. G. Fischer, the superintendent of plumbing of the Sewerage and Water Board, gave the following testimony:

“Q. * * * we are investigating here an installation which has been termed as a stop and waste valve. Can you tell us what that is, and the purpose of it ? A. That is a valve that is installed by the plumber for the owner adjacent to the building, for shut-off purposes in case they have trouble inside of the property, for closing off their supply to make repairs or to add in additional work, fixtures, water connections and so forth.
“Q. That is placed there for the convenience of whom? A. The owner.
“Q. And by whom is it paid the installation? A. By the owner.
“Q. By whom is it maintained? A. By the owner.”

He also said that the Sewerage and Water Board had nothing whatever to do with this valve and that it was “separate and distinct” from the stop valve of the Board located at the water meter. This testimony is fully corroborated by other witnesses of the Board.

It does appear that where an owner of property, through a plumber of his selection and for whose service the owner pays, connects the water line of the owner to the supply line of the Sewerage and Water Board which is located in the larger round box, the Sewerage and Water Board inspects the connection to determine that the connection is properly made, but it is made very clear that, after that first inspection, the Board has nothing further to do with maintaining or inspecting that part of the line which is in the box of the owner.

It is also made clear that the box of the owner, in which the stop and waste valve was located, had been installed many years before the occurrence of the accident, probably as early as the year 1910.

Counsel for plaintiff, in their argument that there is only one such valve which is used by both the owner, when repairs to his system are necessary, and by the Board when it becomes necessary to cut off the supply of water from its mains, maintain that they find encouragement in the regulations of the Sewerage and Water Board which, it is true, do contain a paragraph heading which may give the impression that the “stop cock” which is a part of the system of the Board, is the same contrivance as the “stop and waste cock”, which is a part of the plumbing equipment of the owner. These rules require in paragraph Four that

“the installation of the stop cock and meter is * * * to be done by regular employees of the Sewerage and Water Board * * *.”

And following that regulation we find that rule No. 7 is headed in large letters by. the words “Stop Cock” and this rule No. 7 provides that

“There shall be a stop and waste cock attached to every supply pipe at a point close to where it leaves the ground and sufficiently low and conveniently located that the water may be readily cut off at any time to admit of pipes being drained.”

Counsel say that this indicates that the “stop cock”, which must be installed by the Sewerage and Water Board, is the same as the stop and waste cock which is required under rule No. 7. This is obviously not so. The heading of rule No. 7 should have been “Stop and Waste Cock,” and had that rule been so headed the contention which counsel for plaintiffs make on this particular point would have had no foundation whatever.

Counsel for plaintiffs further argue that, since the defective cover on the box was located in the sidewalk, it must follow that the box was under the control of the Board, because rule No. 4, from which we have already quoted requires that the running of the service pipes “from the main to the property line” shall be done by the Sewerage and Water Board, and they argue that, since, under that rule, the Sewerage and Water Board runs the water lines to the property line, this box, being outside the property line, must have been placed there and must have been maintained by the Board.

The record shows, and there is no doubt whatever on this point, that in most cases where there is space between the building and the property line this service box of the owner is installed inside the property line and that the Sewerage and Water Board in such cases runs the lines from its mains to the property line and the owner picks it up there and runs it to his own service box, but that where the building is located on the property line and there then remains no space for the location of the owner’s stop and waste cock on the property, the owner, for his convenience, is permitted to locate his stop and waste cock in the sidewalk, and the Board is then responsible only for the installation and maintenance of the line from its mains to its own stop cock and meter.

One additional argument of counsel for plaintiffs remains. They point to section 30. of Act No. 6 of the Extra Session of 1899, LSA-R.S. 33:4090, which requires:

. “All connections with the sewerage and water mains shall be made at the cost of the board from the mains to the edge of the foundations of the buildings on the property line, or if there are no foundations on the property line, then to the property line itself, and from that point on, they shall be made at the cost and expense of the owner of the property.”

All that this means is that the owner may require the Board to run its water line to the foundations of the building or to the property line, but surely it does not deprive the owner of the right to locate his own service box in the sidewalk if, for the reasons already given, he desires to do so, and it follows that if he does so desire, the Board then is responsible only for the running of the line to its cutoff valve and meter which is. in its own box in the sidewalk. The evidence shows that this box was installed probably in 1929, and probably not by the Board. It shows that since that time the Board has had nothing to do with its maintenance.

Counsel vehemently protest that, even if the Board had nothing to do* with the maintenance of this cover, they should have maintained an inspection service and by th'is service should have discovered the defective condition of the cover. We find no substance whatever in this argument. If the Sewerage and Water Board was under no duty to maintain the box, there is no reason why they should be held liable for failure to discover its defective condition.

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


author: McBRIDE, Judge.

text:
    GREAT AMERICAN INDEMNITY COMPANY v. DIXIE AUTO PARKING AND SERVICE CORP.
    No. 20588.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1956.
    Jones, Walker, Waechter, Dreux & Poi-tevent and Robert B. Acomb, Jr., New Orleans, for defendant and appellant.
    Christovich & Kearney, New Orleans, for plaintiff and appellee.
   McBRIDE, Judge.

Plaintiff is the collision insurer of a 1952 Pontiac sedan automobile, the policy contract having been issued to Milton Hotard, in whose name the title to the automobile stands. As the result of the car having been damaged to the extent of $103.91 on January 18, 1953, while it was located in the Dixie Parking Lot No. 4, plaintiff paid the amount of its contractual liability to Milton Hotard and took from him a subrogation of his claim against the proprietor of the parking lot. This suit is brought on that subrogation. The petition alleges that the automobile was damaged while in the custody, care and control of the defendant in its capacity of compensated depositary and that defendant is liable for the amount of the damage because of its negligence. Defendant denies negligence on its part and alleges that the accident in which tlie car was involved resulted solely and entirely from the negligence of Donald Hotard, who is the son of Milton Hotard. In the alternative, Donald Hotard 'is charged with contributory negligence.

Plaintiff recovered a judgment below and defendant has appealed.

Donald Hotard at the time of the accident was the emancipated minor son of Milton Hotard. Although he bought and paid for the Pontiac automobile, the title thereto was, for some reason or other, placed in the name of Milton Hotard. Donald Hotard also paid the premium • on the policy of ■ collision insurance which designates Milton Hotard as the insured.

The accident which befell the automobile occurred because of a most novel circumstance. Donald Hotard had been unfortunate enough to lose the lower portion of his right leg and this physical handicap caused him to have some extraordinary alterations made to the Pontiac sedan when he bought it a few months before the accident. It is a well-known fact that manufacturers of of automobiles in the United States conform to a standard pattern with respect to the position of controls, and floor accelerators on automobiles are customarily located to the right of the brake pedal so that a car may be accelerated or braked by the operator of the vehicle by the use of the right foot. Young Hotard, because of his physical condition, found it necessary to have the accelerator on the Pontiac moved from its usual position and placed to the left of the brake pedal so. that he could manipulate the accelerator and the brakes by. using his left foot.

About 8:00 p. m. on the date in question, Hotard drove the automobile into defendant’s establishment for the purpose of having it stored or “parked” there while he attended a theater. He stopped,' alighted from the car, and then paid the required charges to McKnight, defendant’s employee, who handed him a claim check. Hotard then departed. After giving his attention to two other automobiles, McKnight returned to the Hotard car in order to place it in a storage space selected by him. To do this, of course, it was necessary that he enter and drive Hotard’s car.

There is a sharp dispute as to whether Hotard had left ' the motor of the car running before departing from defendant’s establishment. Hotard denies that the motor was running, while, on the other hand, McKnight declares that not only did Hotard permit the motor to run but that he also left the automobile in “gear.”

McKnight’s story is that he got into the automobile and did nothing more than “put my foot down where I thought was the clutch” and the car lurched forward striking three other automobiles. However, when Hotard returned to the garage a few hours later, he was not informed that his automobile had been involved in an accident, nor .did he notice its damaged condition, and it was only on the day following that he learned of what had transpired while his automobile was in the defendant’s parking lot.

It would be well to mention here that the Plotard car is not one with the standard transmission. The car is of that type which is equipped with “hydromatic drive” or, in other words, has an automatic shift, and the design of this system of transmission calls for no clutch pedal. The gears are operated by the manipulation of an indicator lever in conjunction with an indicator panel which is located to the front of the steering post. If all that McKnight did was to depress the accelerator instead of the clutch pedal for the car to have gone forward, the hydromatic indicator must have been set on one of the forward gears.

We cannot believe that Hotard left the motor running and the transmission set in one of the forward gears, because had this been the case, the car would not have remained in a stationary position while McKnight attended to the other two cars before attempting to park the Hotard car. McKnight concedes that when the motor is running and the hydromatic indicator is set for one of the forward gears, the car will move unless the emergency brake is “pulled.” But when asked whether the emergency brake had been “pulled,” McKnight stated that he did not remember. Our opinion is that when Hotard turned the automobile over to McKnight’s charge, the ignition had been turned off, so the question whether the emergency brake had been applied assumes no importance.

It occurs to us that McKnight must have done more than just reach out with his foot, because the car could not have started forward unless he had turned on the ignition to start the motor and then had manipulated the indicator lever so as to set the transmission at one of the forward gears.

McKnight has had thirty years’ experience in driving automobiles and has been a parking lot attendant for several years. We think that because of such long experience with automobiles, he should have noticed at a glance that the automobile was not equipped with standard transmission, and why he reached for the clutch is beyond us. If after starting the motor and setting the indicator at the desired forward gear, McKnight had used prudence in locating and depressing the accelerator instead of attempting to operate the car by reflex action no matter on which side of the brake pedal the accelerator was located, the car would not have moved as rapidly forward as it did. There is no question that McKnight was negligent under the circumstances and the defendant must respond therefor.

Under our law a parking lot proprietor who collects a fee for parking automobiles is a compensated depositary who must be held strictly to the obligation of taking good care of the deposited automobile and is liable to the owner for any damage caused by his negligence. LSA-C.C. arts. 2937, 2938; Marine & Motor Ins. Co. v. Cathey, 8,La.App. 240; Marine Ins. Co., Limited, of London, England v. Rehm, La.App., 177 So. 79.

Alternatively, it is contended that Donald Hotard was eontributorily negligent in that he failed to inform McKnight of the unusual characteristics of the automobile so as to acquaint McKnight with the dangers attached to operating the car. There is some testimony pro and con as to whether the attendants at defendant’s parking lot were acquainted with the automobile, but after reading the testimony carefully, we are not at all sure that McKnight had any knowledge of the misplaced accelerator, but even if Hotard failed to inform him of that circumstance, we do not think that the failure to give notice constituted negligence on Hotard’s part. Any experienced operator should have driven the car without difficulty.

The plaintiff took a subrogation from Milton Hotard, its insured, in whose name title to the car is registered and to whom the policy of insurance was issued, and, therefore, plaintiff has the right of recovery on the subrogation.

Therefore, the judgment appealed from will be affirmed.

Affirmed.


author: ELLIS, Justice. PER CURIAM.

text:
    Elliott A. STEWART et al. v. Hon. Wade O. MARTIN, Jr., Secretary of State and Insurance Commissioner.
    No. 4091.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 22, 1955.
    Rehearing Denied Dec. 30, 1955.
    Writ of Certiorari Denied Feb. 23, 19561

      Gerald S. Quinlan, New Orleans, for appellants.
    C.' C. Wood, Baton Rouge, for. Insurance Rating Commission.
   ELLIS, Justice.

The plaintiffs instituted this suit to obtain a court review of the order on and after hearing issued by defendant in his capacity as Insurance Commissioner, allowing a mutual insurance company in which plaintiffs own an interest, to convert to a stock insurer. The- review sought is provided for by LSA-R.S. 22:1360 which reads as follows:

“A. Any person aggrieved on account of any official action or threatened action of the Secretary of State, or of his failure to act if such failure is deemed to constitute an act under any provision of this Code, may demand a hearing thereon as provided in R.S. 22:1351, and may have the court review any order of the Secretary of State made pursuant thereto. The petition for such review shall be filed only in the district court in and for the parish of East Baton Rouge and shall be taken only from an order refusing a hearing or an order on hearing. Such action may be taken by any person aggrieved by such order refusing a hearing or by such order on hearing.
“B. The action must be taken within thirty days after the order complained of was given by the Secretary of State, or if the order was published as provided in R.S. 22:1359, within thirty days after the date of the last such publication. If not so .taken, the right to have a court review or restrain action under the order shall conclusively be deemed to have been waived.”

The order complained of was entered on October 29, 1952, the company’s plan of conversion was submitted and the Insurance Commissioner’s certificate of authority to convert was issued on October 30, 1952, and plaintiffs filed the in.stant suit on November 6, 1952.- Plaintiffs, prayed for a Court review of the order, and also prayed to have the order set aside on the grounds that the conversion plan was not approved by the necessary two-thirds* of the policy holders and decree the proposed plan of conversion of the Victory Industrial Life Insurance Company, which was the sublet of the original hearing, null and void and without any effect. In addition plaintiffs prayed that the defendant be ordered to ■show cause why the court should not stay any action taken or proposed to be taken under the order complained of. Such a stay is provided for by LSA-R.S. 22:1364 which reads in part as follows:

“A. The filing of such a petition shall not stay any action taken or proposed to be taken by the Secretary of State under the order complained of unless a stay is granted by the court at a hearing held as part of the proceedings.”

The trial court, which has discretionary powers in this respect, refused to stay the order complained of on the grounds that the Victory Industrial Life Insurance Company had immediately converted to a stock insurer upon receipt of the order, and “less ■damage, confusion or injury would be caused by refusing to stay the order than-would result if the order were stayed and the company would be ‘neither fish nor fowl’

An exception of no cause of action and •of non-joinder urged by the defendant was overruled by the trial judge.

On October 21, 1954, counsel for defendant filed a motion to dismiss which was sustained by the trial court on the grounds that the plaintiffs sought to have the order allowing conversion set aside, that as relief sought by the plaintiffs would not result in a reconversion of Victory Industrial Life Insurance Company from a stock company to a mutual company the case was moot. The Court cited State v. Dolley, 82 Kan. 533, 108 P. 846, 847; quoting Adams v. Union Railroad Co., 21 R.I. 134, 140, 42 A. 515, 517, 44 L.R.A. 273, to the effect that case is moot when judgment is sought ‘ * * * upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.’ ”

The plaintiffs quote the following excerpts to refute the contention that a moot question is presented by the facts in the instant case:

“Where the application for review of a decision of an administrative body shows that the question presented is abstract or moot, the court ordinarily will refsue to review the decision * * * (but) * * *. The mere fact that an order has been carried out does not deprive one objecting to it of the right of review.” 73 C.J.S., Public Administrative Bodies and Procedure, § 190, p. 538.
“Intervening events do not render a controversy moot where it is still possible for the reviewing court, if it should decide the case in favor of the party seeking relief, to grant him some effectual relief.” 42 Am.Juris, 193, p. 570.

The defendant herein relies further upon the case of Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660, which involves a suit for partition among co-owners, one of whom took a devolutive appeal, since he was dissatisfied with the judgment ordering partition. Meanwhile, the shares of the partition were distributed to and receipted for by all co-owners wih the exception of the appel-lee. It is evident from the quotation from the case which was included in the Insurance Commissioner’s brief that the court specifically restricted its denial of appellate relief to cases “ * * * where it is impossible for the appellate court to undo what has already been done.” This case is not in point for in the case at bar the courts may set aside the order which is before them on review under the specific language of the pertinent statute. In this connection see also Fluker Farms v. James, La.App., 71 So.2d 709; Id., 226 La. 303, 76 So.2d 311.

The defendant also cited State ex rel. Betpouey, Jr. & Co. v. Jefferson Parish Waterworks District, 223 La. 566, 66 So.2d 338, in support of the trial court’s judgment. In that case the plaintiff had sought a mandamus compelling the Waterworks District to accept its bid on a contract and annulling a contract awarded to another contractor. While a devolutive appeal was pending, the contract plaintiff was seeking to annul was fully performed and the work was accepted by the Waterworks District. The Court properly held that it was powerless to order that the completed contruction work be undone. This case is inapposite to the case at bar since the Court is not being asked to annul a completed contract but to review a decision of an administrative officer which is granted as of right by the pertinent statutes.

The defendants cite the case of Freret Civic Ass’n v. Orleans Parish School Board, 223 La. 407, 65 So.2d 893, 894 in support of the proposition that the court in the instant case is powerless to grant the relief sought. The plaintiff in that case sought a preliminary injunction to prevent the Orleans Parish School Board from converting a certain school from white to Negro usage. The preliminary injunction was denied by the trial court and the conversion was actually effected while an appeal was pending. The plaintiff failed to apply to the Supreme Court for writs, and the appellate court held that.it had no recourse “except to dismiss the appeal, since the act which appellant sought to enjoin has been fully performed and the conversion is now an accomplished fact.” However, the appellate court was careful to point out that the question of legality of the conversion was not passed upon, and that “Our dismissal of the appeal is not to be construed as a decision of the questions raised by the pleadings and the evidence adduced in this case or as an affirmance of the judgment refusing to grant the injunction or as affecting the substantive rights of the parties to this litigation.” It is apparent that though the court denied the injunction, it recognized and, in effect, reserved the rights of the parties to judicially ascertain the legality of the action.

There are other distinctions between the case at bar and the above cited cases. The cases upon which the defendant relies did not deal with atspecial proceeding set forth in special statutory provisions, nor did they deal with a judicial review of the decision of an administrative officer presenting a special question of administrative law. In addition, the completed conversion, which the defendant contends is a bar to review and renders the question moot, is in itself illegal, whereas the actions completed in the above cited cases were all done legally. The conversion accomplished in this case and set up as a bar to further action was, in itself, illegal, since it was in contravention of the specific provisions of the germane statutes which allowed aggrieved persons a thirty day period in which to seek a review of the order. These provisions were apparently ignored and the order was allowed to become effective immediately, and, in fact, the resulting conversion has even been held by the trial court to be a bar to the review unequivocally granted in the Insurance Code.

The defendant in the instant suit attached great significance to the fact that writs were not taken from the court’s refusal to issue the stay order prayed for by the plaintiffs. The record reveals that the Commissioner had issued his certificate of authority to convert the day after the order complained of was handed down. Since the conversion had been made under the Insurance Commissioner’s certificate of authority to convert at the time the hearing on the stay order was had, the trial court refused to issue a stay order and the failure to apply for writs under these circumstances and facts was not necessary or fatal to plaintiffs’ further right to prosecute his action.

In answer to the Commissioner’s argument that the conversion is irrevocable and that the plaintiffs failed to seek the proper relief plaintiffs advance the following forceful argument:

“The Commissioner has contended that sinde the Company has already 'converted there is nothing that could be done about it even if the court did set aside the Commissioner’s order approving the conversion. Such argument is not tenable. Suppose, for instance, that an insurance company- had just gone ahead on its own volition, without seeking prior' approval of the Commissioner, and had converted itself from the mutual form to the stock form. Would the Commissioner then contend that because the conversion had already been affected that he was powerless to do anything about it because they were presented with a ‘Fait Accompli’? The same analogy applies in the present case. If the District Court, after a trial on the merits, were to rule that the approval of the conversion should be set aside, then the actual act of conversion would have no moré validity than "in our hypothetical case. The Commissioner assumes that such conversion is irrevocable. A review of certain provisions of the Insurance Code will reveal that such is not the case.
“[LSA-]R.S. 22:801 and 806 provide that a mutual insurer may convert to a stock insurer and a stock insurer may convert to a mutual insurer. There is no prohibition to the conversion, in either direction. The same method and mechanics which were used to convert this company from mutual form to stock form can also be used to reconvert it from stock form to mutual form.
“[LSA-]R.S. 22:803 and the plan of conversion of the Victory Industrial Life Insurance Company, which was filed as a part of the record of this case show that appropriate accounting and actuarial records can be set up to maintain separate classes for the separate types of policies, if necessary. The plan of conversion made specific provision for the continuance as a special class in the company of all policies issued prior to the conversion from mutual to stock. The same can be done if re-converted from stock to mutual.
“The Commissioner also complains that petitioners did not ask the court for proper- relief, but' a comparison of petitioners’ prayer to the court and [LSA-] R.S. 22:1360 shows that they have prayed for the full relief; offered by the Insurance Code, namely, that the Commissioner’s order be set aside as null, void, and without effect; that the plan was not properly approved; and finally for all such further relief as law equity and the nature of the case may permit. We must remember that petitioners are exercising a right granted by a statute and therefore must follow the statutory procedure. (Emphasis added.)
“73 C.J.S., Public" Administrative Bodies and Procedure, § 192, p. 539.
“ ‘In, order to obtain judicial review of a decision or order of an administrative body or officer, it is necessary and sufficient that statutory provisions governing such proceedings be followed.’ ”

The question of non-joinder of the insurance company as a necessary party is raised on appeal. The determination of the validity of an order of the Insurance Commissioner is the object of this suit and it does not seem that there is any reason why the .insurance company, even though affected by the order, should be considered a necessary party to such a suit. In 42 Am. Jur. 238 it is stated that the “necessary or proper parties in a proceeding to review an act of an administrative agency is largely determined by statutes governing the particular agency.” Applying this principle, the plaintiffs did not more than follow the pertinent statutes when they failed to join the insurance company as a defendant in the instant suit, for these statutes never mention any defendant in the proceedings outlined other than the Secretary of State in his capacity as Insurance Commissioner. More important, the Supreme Court in the case of Courtney v. Abels, 205 La. 304, 17 So.2d 337, 339 has affirmed the above principle when it specifically held that the Parish Democratic Executive Committee was not a “necessary party” to proceedings under Act of 1940 for the recount of ballots cast for parish assessor in the Second Primary Election. Its reasons for such a holding were stated as follows:

“ ‘The executive committee, after proclaiming the result of the election and declaring the defendant the nominee, stripped itself entirely of jurisdiction in connection therewith. To challenge the validity of the election in whole or part, the committee was not a necessary party. It had no interest in the outcome of the contest between the two candidates. The above referred to subsection (b) of Sec. 86 of the 1940 Act clearly directs ■ the mode and method by which contests thereunder may be originated and conducted. The petition of the contestant therein referred to should be presented to the district judge, who, if he finds that the allegations justify him in doing so, “shall issue an order directing the con-testee to answer the petition within five (5) days after service upon him”, etc. Nothing is said about and no reference is made to the necessity of the committee being made a party to the action and since this is true, there appears no good reason for supplementing the procedure thus outlined by requiring something to be done which the act specifically omits. (Italics ours.) See, also, State ex rel. Nunez v. St. Bernard Parish Democratic Executive Committee, 165 La. 685, 115 So. 901.’”

Reading LSA-R.S. 22:1360 in pari ma-teria with the related statutes, this court considers the thirty day period allowed an aggrieved person to seek a review of the order complained of as a suspensive period in which no action can be taken by third party applicant seeking original order, in this case, Victory Industrial Life Insurance Company, or if- a petition is filed within the thirty days and a stay is refused by- the court under LSA-R.S. 22:1364, supra. Under the particular facts in this case the conversion by Victory Industrial Life Insurance Company prior to the thirty days or after refusal to stay such action on -a rulé nisi is at the risk of such'third party applicant to have such action set aside on the merits by the courts. The hasty action of the insurance company in converting the day after the order allowing conversion, and the Secretary of State’s instant approval should not have been given any legal effect nor should it ever have been considered as a bar to the review of the order as provided unequivocally by LSA-R.S. 22:1360 to aggrieved proper parties such as the plaintiffs in the instant case.

It is therefore ordered that the judgment of the lower court sustaining the defendant’s motion to dismiss be reversed, and the case is remanded to the lower court for trial on the merits. >

On Application for Rehearing.

PER CURIAM.

The Secretary of State, defendant-ap-pellee, urges that the original opinion of this Court holds that the filing of the petition for review stays action to be taken by the Secretary of State, despite the express prohibition of such effect in LSA-R.S. 22:-1364, subd. A. This was not our intention.

We simply meant that since the statute guaranteed those aggrieved by orders of the Secretary of State a period of 30 days within which to seek judicial review of such order, then what actions taken by other parties in reliance upon such order are taken at the risk that subsequently such order will be judicially disallowed in legal proceedings which are timely filed.

■ Assuming that an illegal order issued (which of course cannot be decided until, after trial on the merits), a construction other than that of the original opinion of this Court permits a party to prevent judicial review of an illegal order by immediate execution thereof (such as on the following day, as in the present case), before the aggrieved party has the physical opportunity to seek judicial review thereof.

Thus, our opinion holds that the Secretary of State is not bound by any delay period unless expressly restrained or enjoined by the courts; but parties relying upon orders issued by the Secretary of State and acting within the 30-day period allowed for seeking judicial review of such order, dó so at the risk that in the subsequent judicial proceedings 'such order will be annulled.

Rehearing denied.


author: GLADNEY, Judge.

text:
    Vairee SWIFT, Plaintiff-Appellant, v. E. H. BARNETT, Defendant-Appellee.
    No. 8362.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Morgan, Baker & Skeels, Shreveport, for appellant.
    Ragan D. Madden, Ruston, for appellee.
   GLADNEY, Judge.

Plaintiff appeals from a judgment rejecting a claim for damage to his Plymouth sedan incurred in a collision with defendant’s truck on June 18, 1951, about 2.6 miles west of Dubach, Louisiana, on State Highway No. 228. The accident occurred near noon on .a clear, dry day at the approach to a private driveway on the right or north side of the black-topped road.

The defense is predicated on a plea of contributory negligence which alleges fault by plaintiff in executing a dangerous maneuver in order to enter the driveway and without giving adequate and timely signal to defendant who was overtaking the automobile with the intention of passing. .Since there is no counterclaim on behalf of the defendant, Barnett, a discussion of his negligence, if any, is not required.. Our attention is directed solely to a resolution of whether or not plaintiff was guilty of negligence constituting .•a proximate or contributing- cause of the accident. The decision herein must rest mpon a correct finding of such material ■facts as can be gathered from the testi■mony of the four witnesses who testified. 'These were Vairee Swift, plaintiff, E. H. .Barnett, defendant, T. R. Reynolds and :State Trooper, M. E. Kidd.

Swift testified it was his intention to •drive his vehicle into the private driveway above mentioned; that he observed -the truck of defendant following and gradually overtaking him at a speed of .about thirty-five miles per hour; and that aipon approaching the driveway and after ■observing the truck about one hundred •fifty feet to his rear, he gave a proper liand signal for a right turn, slowed his vehicle to approximately fifteen miles per liour, maneuvered his car to the left until .approximately one-half of it was to the .left of the center of the black-topped highway, and then turned sharply to the right ito enter the driveway. He explained it was necessary to swing his car to the left .because of a narrow entrance to the driveway. He acknowledged that after he first gave his signal to turn to the right he did not again observe the truck until the ac.cident happened. He testified further that if Barnett sounded his horn he did not .hear it and that he did not stop on the left -side of the highway prior to making the ^urn to the right.

Barnett testified that for some distance •jprior to reaching the scene of the accident .Swift was driving in the left traffic lane .and that as the two vehicles neared the ■driveway the truck was from fifty to one hundred feet to the rear of the automobile when the latter turned to the left, came to .a stop on the left side of the highway and ■then suddenly started up and turned sharply to the right as the truck was in the act ■of passing; that he did not observe any •turning signal by the driver of the automobile; and that he sounded his horn before attempting to pass the preceding vehicle at which time the right traffic lane was open. 'He said he was passing the Plymouth when ¡the collision occurred.

Reynolds was working about three hundred feet from the place of collision. He said his attention was attracted by the sound of a horn and he looked up in time to see the Plymouth automobile on the left side of the highway. He testified he did not actually see the collision, nor did he go to the scene of the accident.

Trooper Kidd arrived upon the scene after both vehicles had been removed. He inspected the highway for signs of physical evidence and later observed the damage incurred by the two vehicles involved. He testified the point of impact appeared to be on the right or north traffic lane and near the entrance to the driveway; that the wheels of the truck skidded about forty-three feet to the point of collision and that both vehicles came to a rest at approximately the spot where they came together. He further stated that the left front of the truck and the right side of the automobile were damaged.

In reviewing the testimony, we find the admission by Swift that he did not again observe the truck after first giving any signal of his intent to turn into the driveway. The record does not make clear whether Swift gave the correct hand signal timely enough or that it was seen by the driver of the following vehicle. Barnett denies he saw any signal. Plaintiff admits maneuvering his car to the left and then turning sharply to the right in order to enter the driveway. Although Swift denied hearing the sound of the truck’s horn, the testimony that such a signal was given is corroborated by Reynolds. The testimony of Trooper Kidd unquestionably indicates that the Plymouth automobile was almost completely over in the left traffic lane when Barnett attempted to pass. This is inferred from the location of the damage incurred by the two vehicles and their respective positions at rest following the collision.

From the above circumstances it is our conclusion that Swift was guilty of negligence which was a proximate and a contributing cause of the accident. The driver of the Plymouth automobile was negligent not only in failing to maintain proper observance of the vehicle behind him, but it was also an act of negligence to maneuver his automobile to the left and then turn sharply to the right immediately in front of the following truck. There was, we think, a clear violation of the provisions of the Highway Regulatory Act requiring the driver of a vehicle about to enter a private road from the public highway to yield the right-of-way to all vehicles approaching on the highway. LSA-R.S. 32:237, Subdivision E. Due to the closeness of the truck, the presence of which was known by Swift, it was incumbent upon Swift to keep his automobile in the right lane of traffic and make no attempt to enter the private driveway unless he could do so safely. If he saw that a safe entry into the driveway could not be made Swift should have permitted the following vehicle to pass before ’ turning off of the highway.

The facts of the instant case are analogous to those in Kean’s v. National Surety Corporation, La.App. 1951, 53 So. 2d 427, 430. There a laundry truck was struck by the following truck when the driver of the laundry truck cut his vehicle to the left of the center line and then cut sharply to the right in order to turn off of an intersecting road. The Court of Appeal quoted the conclusion of the trial judge as follows:

“ ‘From all the facts and circumstances surrounding this case the Court has reached the conclusion that what actually happened was that Mr. Bonner reached a point at or very near the gravel road before he remembered that he was supposed to turn into it; that he reduced his speed suddenly; that he gave an inadequate right turn signal, or none at all; that in his confusion and uncertainty he came to almost a complete stop very near the center of the highway, paused there momentarily, turned squarely to the right and entered the gravel road. No other reasonable conclusion suggests itself.’ ”

The appellate court in summing up its reasons for affirming the judgment rejecting plaintiff’s demands, declared it was negligence for the driver of the forward vehicle to make “his unusual maneuver just prior to making his right turn.”

For the foregoing reasons our conclusion is that there is no manifest error in the judgment from which appealed, and accordingly, it will be affirmed at appellant’s cost.


text:
    E. H. WILLIAMSON, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 8431.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.

      Theus, Grisham, Davis & Leigh, Monroe, for appellant.
    Jones, Blackwell & Chambliss, West Monroe, for appellee.
   GLADNEY, Judge.

This suit involves an intersectional collision which occurred about 8:00 o’clock A.M. on February 7, 19S5, at the corner of Parnell and Travis Streets in West Monroe, Louisiana. Plaintiff’s wife, Mrs. E. H. Williamson, was driving a Buick automobile and Roland J. Thomas, defendant’s insured, was the operator of a Nash car at the time of the accident. Following a trial on the merits judgment was rendered in favor of plaintiff for $247.18, being the amount of damages' sustained by the Buick. From the judgment defendant has appealed.

The petition charges the accident was due to several acts of negligence by Thomas, in that he was driving at an excessive rate of speed, in not having his automobile under control, by driving on the wrong side of Travis Street, and in failing to keep a proper lookout. The defendant through its answer denies the charges so made, averring that the accident was caused by the failure of Mrs. Williamson to maintain a proper lookout, in not yielding to Thomas the right-of-way accorded by the city ordinance to vehicles moving on Travis Street, and by entering the intersection when it was unsafe to do so. Alternatively plead is the contributory negligence of the driver of the Buick car, based on the grounds just enumerated. In written reasons, for judgment assigned by the judge a quo the entire responsibility for the accident was assessed to Thomas.

The intersection in question is not regular in the sense that the two streets go straight across each other. Parnell Street continues straight through Travis Street but an offset of about IS feet occurs in the latter, the portion thereof west of Parnell being to the south- of that east of Parnell. Thus, a motorist- traveling west .along Travis Street in order to continue across Parnell Street would find it necessary to turn his vehicle slightly to the left to negotiate the crossing. Parnell and Travis Streets are black topped without curbing. Travis enjoys the status of a right-of-way street by virtue of a city ordinance. In the northwest corner of the intersection there is a paved parking area for the convenience of the West Monroe High School. Its surface is level with and easily accessible from either Parnell or Travis Street.

Mrs. Williamson testified that she, accompanied by her husband seated to her right, was traveling north along Parnell Street when, in obedience to a stop sign located near the southwest corner of the intersection, she brought the Buick to a stop about 15 feet south of the southeast corner of the intersection. From that point she and Mr. Williamson looked to the right and left and, observing no vehicle approaching from either direction, she started forward and brought her car to a second stop with its front bumper parallel to the south side of Travis Street. From this stopped position she then saw the Nash automobile approaching from her right at a distance of about 150 feet and traveling at a speed which she estimated to be 40 miles per hour. Both she and her husband were positive the Buick car was not moved from that point prior to the collision. They sa}' the accident was caused by Thomas swerving his car to the left and striking the stopped Buick. It was further testified that immediately after the accident Thomas approached them and admitted his fault, saying that his glasses and windshield were fogged and that he did not see their car before the collision. Williamson also declared Thomas told him he “gunned it thinking I could beat you”. The testimony of Mr. and Mrs. Williamson was strikingly similar as to nearly all the details related by them. Harold B. Gentry, the only other witness produced by plaintiffs, was the mechanic who repaired the Buick automobile. He testified its frame and the bumper were bent to the left.

Thomas testified that at the time of the accident he was on a mission to the high school; that he entered Travis Street one block from Parnell and in going west along Travis Street had reached a maximum speed of about 25 miles per hour, which speed was reduced upon nearing the intersection with Parnell Street because of the school zone; that he was traveling about 15 miles per hour when the two automobiles collided in the middle of the intersection; and that he did not see the Buick automobile prió'r to the collision. He positively denies he made the culpatory statements attributed to him by plaintiff and his wife. The witness further related the damage to his car was confined to the left rear door and left rear fender, the door being caved in. He said that at the moment of the collision he was thrown across the seat and his car moved forward some distance before he could bring it under control.

Appellant earnestly contends the judgment is in error in failing to find negligence by Mrs. Williamson was a proximate cause of the collision. It is argued with considerable merit that it was physically impossible for the accident to have occurred in the manner related by plaintiff and his wife. In support of this it is pointed out that the damage to the Nash automobile was inflicted upon the left rear door and left fender and that Thomas’ car did not skid into the Buick automobile. Therefore, counsel assert it would have been impossible for the Nash to have been so damaged unless the Buick was moving forward at the time of the impact.

The circumstances militate strongly against the version of the accident as related by plaintiff and his wife. Both stated Thomas indicated to them the accident was his fault, that he was driving too fast and that he could not see well as his glasses were fogged up. And plaintiff further testified Thomas told him: “I gunned it, thinking I could beat you.” We confess we are hesitant to concede Thomas would in almost the same breath make such inconsistent statements. Except as it affects the credibility of the witnesses, however, this point is relatively unimportant, for the reason that Thomas frankly admits he did not see the other vehicle and certainly in this respect he was guilty of negligence in failing to maintain a proper lookout.

The location and extent of damages sustained by the two vehicles has convinced us the Buick did not remain at a stop with its bumper parallel to the south line of Travis Street but made an entry into the intersection. The record is void' of evidence the Nash skidded sideways into the Buick automobile, which alone could explain the damage sustained by the Nash if we assume the Buick was stopped when struck as stated by Mr. and Mrs. Williamson. Obviously, we think, if Thomas had veered his vehicle too far to the left and struck the front end of the Buick standing still with its front bumper parallel to the south line of Travis Street, some portion of the front end of the Nash automobile would have been damaged. The record does not show this. It only shows that the left rear door and left rear fender of the Nash were affected by the impact. Furthermore, the force of the impact was sufficient to cave in the door of the Nash automobile and the damage inflicted upon the Buick included damage of a substantial nature to its frame, grill and other parts of the entire front. It is not reasonable to believe that two vehicles would have sustained such damage unless both vehicles were moving at the time of the collision.

The trial court predicated its judgment on a finding that Mrs. Williamson was free from negligence and held the fault rested entirely with Thomas. We may well concede Thomas was guilty of negligence by failing to maintain a proper lookout, but we are also of the opinion that Mrs. Williamson was guilty of negligence in entering the intersection at a time when it was unsafe to do so. In our opinion the accident could not have happened as it did unless the Buick automobile was moving into the intersection at the time of the collision. Since Travis Street was a right-of-way street it was incumbent upon the driver of plaintiff’s vehicle to respect the right-of-way accorded by the city ordinance to traffic moving along Travis Street and not attempt to cross it until it was safe to do so. We, therefore, find Mrs. Williamson was guilty of negligence which was a proximate cause of the accident. The plea of contributory negligence should have been sustained.

We have noted the authorities cited by counsel for appellee, consisting of Garrett v. Toye Bros. Yellow Cab Co., La.App. 1952, 58 So.2d 418 and Camp v. Wheeling Pipeline Co., Inc., La.App. 1954, 76 So.2d 106. The cited cases are inapposite for the reason that in the instant case the Thomas vehicle was not skidding at the time of the collision. In the two cited cases the decision turned upon the fact that the offending automobile was skidding at the time of collision, a situation which does, not exist in the present case.

Appellee also argues that the last clear chance doctrine is applicable, for Thomas could have guided his automobile-toward the approach to the West Monroe High School and thus avoided striking; his motor vehicle. There is no evidence indicating Thomas discovered plaintiff’s, car in a position of peril with opportunity to alter his course. Our finding that Mrs. Williamson entered the intersection when, it was unsafe to do so refutes such an idea.. The plea is without application herein.

It follows from our findings as herein-above stated that the judgment from which, appealed should be and is hereby reversed and plaintiff’s demands are rejected at his. cost, including cost of this appeal.