author: ELLIS, Judge. TATE, Judge.

text:
    Martin TROY et al. v. Adolph LANCLOS.
    No. 4109.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Writ of Certiorari Denied March 26, 1956.

      McBride & Brewster, Lafayette, for appellant.
    Leon S. Haas, Jr., Opelousas, for appel-lee.
   ELLIS, Judge.

On Feb. 24, 1952 plaintiff Martin Troy was driving his car in a southerly direction on a graveled highway, Louisiana Highway No. 5, from Whitehall toward Opelousas, Louisiana, and seated beside him was his brother, Ben Troy, and in the rear seat were Mrs. Felix Blanchard and her daughter, Lydia. When he neared the junction of a parish road with Highway 5, he saw the car driven by the defendant approaching on this Parish road. The two roads formed a T intersection.

Plaintiff contends that when he was within 90 feet of the junction he saw the defendant car stopped on a bridge located within several feet of the junction, whereupon he blew his horn and continued forward at a speed of 30 to 35 miles per hour, and when he was approximately 30 or 40 feet from the defendant the latter drove into Highway 5 into plaintiff’s lane of travel; that plaintiff applied his brakes, pulled to the left and due to the fact that the car began to slide in the loose gravel, released his brakes and applied them more slowly until he was near the ditch on the left hand side, when he veered his car back to the right and the collision occurred. On the other hand it was the contention of the defendant that he came upon the bridge and stopped, started to make .the turn and then heard the plaintiff blow his horn, and that he immediately applied his brakes and his car was stopped with the front end .extending approximately 3 feet into the plaintiff’s lane of travel on La. Highway 5.Defendant further contends that the plaintiff could have stopped his car or passed to the left and front of his car and thereby avoided the collision.

As a result of the collision plaintiff’s insurance company paid him all except the $50 deductible under the policy and he is, therefore, suing only for this amount. In the record is a .complete subrogation of all rights and claims which the plaintiff had in this matter to his insurance company, plaintiff herein; who is seeking to recover $213.28 which is the full amount it paid to the plaintiff and which naturally did not include the $50 deductible.

To the petition defendant filed exceptions of no right or cause of action based upon the proposition that where an automobile owner assigns to the insurer all of its claims for damages arising out of an automobile collision, the insurer was entitled to recover the full amount required to repair the automobile, including the $50 deductible paid by the owner of the automobile, and he cites in support thereof General Exchange Insurance Corporation v. Kean’s, Inc., La.App., 184 So. 410; General Exchange Insurance Corporation v. Carp, La.App., 176 So. 145.

The exceptions of .no cause or right of action are not well founded. If the defendant is liable it is for the total amount of the damages 'proven on the trial of the case. It is true that there is a valid assignment or subrogation by the plaintiff Troy to the .plaintiff insurance company, 'but both are before the Court as plaintiffs and there is no reason, if plaintiffs are, successful, why judgment should not be rendered for the deductible amount of $50 in favor of Troy and a judgment for-the remainder in favor of the plaintiff insurer.

After trial the District Court rendered judgment, dismissing plaintiff’s suit and it is now befo're this Court of Appeal.

The record in'this case reveals that at-approximately 4 p. m. on February 24, 1952 the assured, Martin Troy was driving his automobile on Louisiana Highway Number 5, and when nearing a T junction formed by a parish road and Highway 5, he was forced to stop in order to avoid colliding with a mule in the road. After starting again he had- attained a speed of approximately thirty to thirty-five miles per hour and when within some ninety feet .of the junction, he, saw the defendant’s -car stopped on 'the bridge which is located several feet back from the intersection of the parish- road and the gravel highway on which he was traveling, and he then blew his horn as a warning to the defendant. There is no dispute- in the facts to this point but from this point on they are apparently in sharp dispute or conflict as far-as the verbal testimony' is concerned.

Plaintiff testified that after he had blown his horn and had traveled to within thirty or forty feet of the junction, the defendant pulled onto the main road and that he immediately applied his brakes, and pulled to the left; that due to the loose gravel his car began to slide and he, therefore, released the brakes and reapplied them in a slower fashion until he saw that he was going off on the left side into the ditch and he then steered his car back to the right. It was at this time, according to his testimony, that the defendant had gotten over into the highway left of.the center line where plaintiff struck him with the right end of the bumper and the side of his fender. He testified that the right front of his car locked into the left front part of the bumper and fender of defendant’s car. According to the preponderance of the testimony, the actual impact occurred either near the center or to the left thereof of Louisiana Highway Number 5. Whether it took place on the left side or slightly to the right of the center of the highway is immaterial, although much is made of this discrepancy in plaintiff’s testimony by the defendant. The plaintiff also testified that immediately after the accident the defendant stated that he had no insurance and that he would pay plaintiff the $50 deductible if the latter would admit1 liability.

The plaintiff is corroborated in his testimony by that of Mrs. Felix Blanchard and Ben Troy who were riding in the car with him at the time of the accident. This latter witness testified that he saw the defendant coming off of the bridge near the junction of the two highways and that he seemed to stop, and just as their car got about 30 feet from the defendant, the latter proceeded into, the. highway and the collision occurred. The plaintiff and the eye witnesses who were in his car all testified that defendant did not make a sharp right turn but came oút ’ into the middle of the highway. These eye witnesses also thought that the impact occurred more to the left but near the center of Louisiana Highway 5.

Opposed to the testimony of the plaintiff and his eye witnesses is that of the defendant and his guests who were also eye witnesses. According to a Mr. Ay-mond, who was riding in the car with the defendant, just as the front wheels of the defendant’s car 'Came off' the bridge and into the graveled' Highway 5, he heard the horn of the plaintiff’s car blowing and the defendant stopped his car "right there.” He testified that the plaintiff’s car kept coming and instead of passing the front of their car as he expected, it ran into defendant’s car. This witness also testified that although the defendant had stopped his car “dead” with only the front part extending into Highway 5, that as a matter of fact, the defendant had plenty of time to have completed his right turn and proceed on ahead of the plaintiff had he so desired.' According to this witness’s testimony, the plaintiff was coming “a good 60 miles.” This witness’s estimation of the speed is evidently in error as the cars moved' very little after the collision and were still hooked together at the right end of plain-' tiff’s bumper and left end of defendant’s bumper. It was further this witness’s opinion that at the, time of the impact the plaintiff was going 30 miles per hour. Had he-been making this speed at that time, the accident- would have been much more serious. Even the defendant himself did not think he was going as fast'as between 20 and 30: miles per hour for he stated: “It looks to me I would have more damage on my car if he hit me that much.”

Mrs. Aymond, who was a guest in the car of the defendant, testified in his behalf and stated that the plaintiff “was sure coming 55 or 60”, and that the front wheels of the defendant’s car were approximately 3 feet out into Highway 5 at the time of the collision where he had stopped when he heard the plaintiff’s horn blow.

The wife of the defendant testified that as they reached the bridge adjacent to the junction of the two roads that the plaintiff blew his horn when about a block away, and that the defendant stopped immediately with the front end of his car approximately three’ or four feet into Louisiana Highway 5. This witness further stated that plaintiff: “was on his. right hand side just about in the middle and to me he could have skipped us and all of a sudden he came back to our side and hit the front end of the car.” This is exactly what the plaintiff said he did except that he also applied his brakes. This witness stated that there was enough room for the plaintiff to have passed to the side or front of defendant’s car without a collision. .

The defendant testified that when he arrived at the bridge near the junction of the* parish road and Highway 5 that'it was necessary to stop because theré were bushes and grass and little trees which obstructed a clear view of approaching traffic. He stated in ref'erring to plaintiff’s car that when he stopped, “I see the car "was coming to me kind of far,” and that he started to turn and heard the plaintiff blow his horn and then stated:- “So I just put my brake, hold my feet on the brake,” and that the front end of his car at the time of the collision was about 3 feet in plaintiff’s lane on Highway 5. - 1

As we understand defendant’s testimony, the position of the cars after the collision was approximately as shown by the diagram of the State Trooper who investigated the accident. The plaintiff’s car was in a diagonal position across the road with its right front portion slightly over the center line of the highway and the middle and rear portions completely to the left óf the center line. The left front end of the défendant’s car was near but slightly to the right of the center line and the remainder slanting at an angle toward the right across the right hand lane. According to the diagram all of the defendant’s car was in the right lane of travel with the front end against the center-line, showing that the defendant either had driven his car out in a turning position to the right three or'four feet into Highway. 5, or had been dragged the remainder of the distance, toward the center line. He was no.t dragged • toward the center line as the -plaintiff’s car was traveling from left to right at the moment of the collision and instead of pulling or dragging the defendant’s car toward the center, line ■ it would have forced it to its right or away from the center line. Therefore, if the plaintiff’s car pushed or dragged defendant’s car at all three or four feet, and the two cars were in the position that the defendant, the.plaintiff and. the officer testified they were after ;the wreck, then the front portion of defendant’s car just prior to the collision, must have been ■ slightly across the center line.

The disinterested witness in this case was the police officer who testified on behalf of the- plaintiff. ■ His- testimony is most important in arriving at a correct conclusion as to what actually took place a-nd what was the proximate cause of this accident. It was this witness’s testimony that the defendant was pulling out into the road into the plaintiff’s lane of travel and that , the point of impact was on the west side of the center line of Highway 5 which Highway he described as being approximately. 20 feet in width. The officer testified that he talked to the defendant when he arrived there and that the latter stated: “He told me he stopped and didn’t see no. traffic coming so he decided to take off. That’s the exact words he told me, when he started to take off he saw this fellow coming. Evidently it was too late for him to stop turning.” It was also shown that the officer did not put this statement in the report but he positively asserted that that is exactly what the defendant told him at the time and even though the accident had happened almost three years before he well remembered that statement. There is nothing to show that this officer had any interest in this case and, therefore, we have no reason to disbelieve his testimony.

Considering the entire record, we find the plaintiff was in the neighborhood of 90 feet from the junction of the parish road and Highway S, traveling at a speed of 30 to 35 miles per hour when he saw the defendant’s car stop as it came upon the bridge adjoining Highway 5; that he blew his horn and continued, and when he was within the distance of approximately 30 or 40 feet of the junction of the two roads the defendant began to move out into the plaintiff’s lane of traffic. At this time the defendant created an emergency, and whether there was room in front of the defendant for the plaintiff to pass or not is beside the point. It is clear from the evidence that plaintiff could not stop within this short distance although he was traveling at a moderate, reasonable, legal rate of speed. The plaintiff attempted to pass to the front of the defendant but was unable' to do so, either due to the fact that the defendant’s car had come across into the left lane of traffic as contended by the plaintiff or due to the fact that on the loose gravel the sudden forceful application of plaintiff’s brakes caused plaintiff’s car to skid and it was necessary that he release them and apply them slowly, and in order to avoid going into the ditch on his left he started his car back to the right and the impact took place. The sole proximate cause of this accident was the negligent act of the defendant in proceeding into Louisiana Highway 5 immediately in the face of the approaching plaintiff. It is more or less immaterial as to whether the defendant only came three or four feet into the plaintiff’s lane of travel, as this was sufficient in view of the close proximity of the plaintiff at the time he made this maneuver, which was 30 or 40 feet, to create an emergency, and any action which the plaintiff took in an attempt to avoid the collision would not constitute negligence on his part as he was in no wise responsible for the creation of the emergency.

The contention of counsel for defendant that the latter had pre-empted this intersection is without merit. Under the facts found the law accords no right of pre-emption to the defendant.

As to the quantum plaintiffs admit that they have failed to prove as an item of damages $19.60 for a new tire.

It is therefore ordered that the judgment of the District Court be reversed and that there now be judgment in favor of plaintiff Martin Troy in the full sum of $50 with legal interest from judicial demand and against the defendant Adolph Landos. It is further decreed that there be judgment in favor of the plaintiff, and against the defendant Adolph Landos in the full sum of $193.78 with legal interest from judicial demand until paid. It is ordered that the defendant pay all costs.

TATE, Judge.

I respectfully dissent.

The crucial fact to be determined is whether defendant’s car protruded onto the highway when plaintiff was 300 feet distant from the intersection (as defendant testified) or when plaintiff was just 30 feet distant therefrom (as plaintiff testified).

The District Court, who saw and heard the witnesses, denied recovery, thus apparently finding the former version was correct. If so, the judgment should be affirmed, since as the State trooper and almost all witnesses testified, there was more than sufficient room for plaintiff’s car to pass around the front • end of defendant’s car, and his failure to do so when he saw or should have seen defendant protruding, stopped, on the highway from 300 feet distant in my opinion would constitute a proximate cause of the accident, whether due to loosing control because of the loose gravel, excessive speed, or what. He had the last clear chance to avoid the accident.

Of course, if plaintiff’s version of the accident is correct, the majority opinion correctly holds that the sudden entry of defendant’s vehicle in plaintiff’s path'in disregard of the accident was the proximate cause of the accident. I might add this version is the more probable explanation of the accident, based solely on the cold record; but we did not see and -hear the witnesses, as did the District Court.

It seems to mé a fundamental fallacy for appellate courts to substitute possibly fallacious deductions from physical evidence for sworn testimony found credible by the trier of fact. Deductions exist only in our own minds and áre not evidence. And, frankly, it seems to me that the physical results of this accident would most probably be identical, assuming the impact occurred at the same spot with the cars at the same angles, etc., whether plaintiff’s car struck defendant’s after the latter (a) just crawled onto the highway 30 feet in front of plaintiff (as the majority finds) or (b) entered the highway 300 feet in front of plaintiff and immediately stopped after plaintiff’s horn sounded (as the District Court found).

Feeling strongly that the District Court’s determination of factual issues is not manifestly incorrect, I am duty-bound to dissent from the opinion reached by my learned brethren.


source: Caselaw Access Project

author: TATE, Judge. LOTTINGER, Judge

license: Public Domain

text:
    Leland H. JOHNSON, Plaintiff-Appellee, v. CAPITAL CITY FORD COMPANY, Inc., Defendant-Appellant.
    No. 4098.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Writ of Certiorari Denied March 26, 1956.

      Taylor, Porter, Brooks, Fuller. &. Phillips, Baton Rouge, for appellant.
    Kantrow, Spaht & West,. R. L. Klein-peter, Baton Rouge, for appellee.
   TATE, Judge.

This suit is for specific performance of a contractual obligation allegedly resulting from plaintiff’s acceptance by act (without negotiation or other discussion) of an alleged offer made by newspaper advertisement to the public by defendant automobile dealer. Defendant dealer appeals from judgment of the District Court decreeing specific performance of the alleged' obligation; plaintiff Johnson answered this appeal, praying for amendment of the decree.

The basic question involved is whether the newspaper advertisement in question constituted an “offer” rather than merely an. invitation to bargain. If the former, a secondary question for determination is whether any act or omission of plaintiff-acceptor-obligee waived his right to require the defendant-offeror-obligor to perform the obligation, resulting from plaintiff’s acceptance. If as contended. by defendant the newspaper advertisement was merely an invitation to bargain, then of course defendant’s objection to parol evidence as enlarging or varying a certain written contract in evidence was well founded; if, on the other hand, this newspaper advertisement constituted a continuing @ffer which the plaintiff accepted by such purchase, and thus as the District Court found, created a contemporaneous collateral obligation of defendant' to do something in addition to the obligation embodied in the written contract,' then of course such evidence was correctly admitted to prove the existence of this independent, collateral contract.

■ When the 1955 models were about to appear, defendant Ford dealer i:n an effort to dispose of an excessive supply of 1954 models (which were shortly to be outmoded by the 1955 Ford cars) engaged in an intensive advertising campaign by newspaper and radio, the first day’s advertisement concerning which is self-explanatory:

(See exhibits J-l-2-3-4 advertisements of September 17th and 18th inserted both in the Morning Advocate, and State Times morning and evening papers, respectively, Baton Rouge, Louisiana.)

It may be added that the 1955 models were expected to arrive within'60-90 days of this bargain sale of 1954 models.

Plaintiff and his wife testified that in response to these newspaper and radio advertisements they went to defendant’s premises on September 21st, 1954. Johnson there purchased a 1954 Ford Sedan with certain accessories; he received an allowance of $974.05 for his old car and paid boot of $1,660 in cash. Johnson executed an act of sale for the 1954 Ford purchased by him, which we will discuss below.

In December, 1954, when the 1955 models were advertised, Johnson appeared at defendant’s premises and requested its compliance with the newspaper offer accepted by him. At this time or soon after, Johnson or his attorney was informed that defendant’s newspaper advertisements were not intended as offers, but merely as invitations to come in and bargain; that by delivery of the 1954 automobile for the consideration expressed in the executed act of sale, defendant felt it had fully complied with all obligations whatsoever to Johnson.

Detailed discussion of the evidence is unnecessary, for we do not find the District Court’s determination of the facts manifestly erroneous, supported as it is by sworn evidence and certain corroborating circumstances. For instance, defendant urges with considerable effect that Johnson’s behavior in buying the 1954 Ford without any discussion whatsoever as to his right per the newspaper offer to exchange said model for a 1955 model, is not the usual and normal course of behavior.

But what we are here concerned with is not the usual course of behavior, but what transpired on this particular occasion.

Basically, when defendant urges that because usually and ordinarily a person would not behave as Johnson and his wife stated they did, in assuming without further discussion that they acquired the right to a 1955 model Ford upon their purchase of a 1954 Ford per the newspaper offer, defendant is attacking the credibility of the testimony of plaintiff and his wife, which issue the District Court with opportunity to see and hear personally all witnesses has resolved in favor of the plaintiff. Because plaintiff’s conduct was improbable does not require a holding that it did not occur as testified under oath by himself and wife and believed by the District Court, for human beings do improbable things at times.

We further do not find manifestly erroneous the District Court’s determination that the pencilled notation “No ’55 deal” was not on the contract of purchase of the 1954 Ford when executed by plaintiff on Sepetmber 21, 1954.

Accepting the facts so found by the District Court, we believe its application of legal principles thereto was correct.

In Louisiana and elsewhere a newspaper advertisement may. constitute an of-, fer, acceptance of which will consummate a contract and create an obligation in the offerer to perform according to terms of the published offer; Schreiner v. Weil Furniture Co., Inc., La.App., 68 So.2d 149; Youngblood v. Daily and Weekly Signal Tribune, 15 La.App. 379, 131 So. 604; Kodel Radio Corp. v. Shuler, 171 La. 469, 131 So. 462; Maginnis v. Union Oil Company, 47 La.Ann. 1489, 18 So. 459; Deslondes v. Wilson, 5 La. 397, 25 Am.Dec. 187; Corbin on Contracts, Vol. 1, pp. 60 et seq., Section 25.

In the Schreiner case very recently our brethren on the Orleans Court of Appeal observed: “It is possible to make offers to anyone, or to everyone, who may perform a specified act or make a specified promise. * * * There is no doubt that as a result of Mrs. Butscher’s success in the contest the defendant must be held bound to his obligation. When plaintiff performed all of the requirements of the offer in accordance with the published terms, it created a valid and binding contract, under which she became entitled to the promised rewards. That there was a serious and mutual consideration is obvious.” 68 So.2d 151.

“In order to constitute a proposal which may be converted into a contract by acceptance, the offer need not be addressed to a particular individual. A binding obligation may even originate in advertisements addressed to the general public,” 12 Am.Jur. 527, Verbo Contracts, Section 28. Whether in any individual instance the newspaper advertisement is an offer, rather than an invitation to make an offer, depends on the legal intention of the parties and the surrounding circumstances; Annotation, 157 A.L.R. 744-751, 77 C.J.S., Verbo Sales, § 26, p. 634; 17 C.J.S., Verbo Contracts, § 46, p. 389; 12 Am.Jur. 526-527, Verbo Contracts, Section 28.

The advertisement denotes itself as an “offer”, the wording to a reader denotes a bona fide bargain offer, and it was certain and definite enough to constitute a legal offer, Articles 1779, 1886, LSA-Civil Code.

If the automobile dealer had stated on September 17th to a specific customer: “If you buy a 1954 automobile before October 1st, I will let you trade it even (except for license and sales tax) for a 1955 model of exactly the same model, body style, and accessories when these 1955 models come out in 60-90 days, providing you return the 1954 model with only normal wear and tear”; undoubtedly the offeree’s purchase of a 1954 model before October 1st would have been a binding acceptance (without any further discussion) of the dealer’s offer, creating in the dealer an obligation to furnish a 1955 model when available according to the terms of the offer.

In light of the legal principles above summarized, this same offer communicated to the general public by a newspaper advertisement has the same legal effect when accepted according to its terms. In the absence of any limitation in the offer solely to cash purchases, we do not feel the situation differs because plaintiff purchased the 1954 Ford by trade-in with cash boot, instead of by cash only.

If appellant-dealer argues it did not actually intend this newspaper advertisement to constitute an offer, and therefore the advertisement did not do so, nevertheless “The rights of plaintiff and defendant are to be tested by the actual legal consequences flowing from a sale [contract] made under the particular advertisement * * *, These consequences cannot be altered or checked because the agent of the company may have had an erroneous belief as to what the advertisement as written meant,' or what it would legally convey. The advertisement controlled the rights and obligations of the parties”, Maginnis v. Union Oil Company, 47 La.Ann. 1489 at pages 1495-1496, 18 So. 459, at page 461. In the Maginnis case, the purchaser’s acceptance at public sale of the vendor’s advertised offer to sell was held to require conveyance not only of the land and buildings, but also of the valuable machinery therein (immovable by destination), although it was the explicit intention of the vendor in preparing the advertisement not to include this machinery in the offer.

It must further be remembered that the words of the advertisement were of course chosen by defendant-dealer, and if any ambiguity exists as to their meaning, it must be -resolved against their composer; LSA-Civil Code, Article 1957; Crummer v. Nuveen, 7 Cir., 147 F.2d 3, 157 A.L.R. 739, holding a newspaper advertisement to purchase bonds at par was an offer, rather than a mere proposal to negotiate, being complete and definite, and if ambiguous, construed against offerer.

Defendant urges that plaintiff was under some duty when he appeared on defendant’s premises in response to the advertised offer to indicate that he was accepting same, since defendant indicates it would have offered less trade-in value for plaintiff’s old car had it known that this was a “1954-1955” deal as advertised. Assuming defendant would not 'have allowed as much trade-in if it had thpught this was a “1954-1955” deal, if there was a burden on anyone, it would seem to be upon defendant to inform the plaintiff.of any conditions or modifications of the apparently bona fide offer contained in the advertisement. “The party proposing shall be presumed to continue in the intention, which his proposal expressed, if, on receiving the unqualified assent of him to whom the proposition is made, he do not signify the change of his intention”, Article 1801, LSA-Civil Code. See Loyd Mercantile Co. v. Long, 123 La. 777, 49 So. 521; Comment, (now Professor) Pascal, “Duration and Revocability of an Offer”, 1 La.Law Review 182. “But if the doubt or obscurity [in the agreement] arise for the want of necessary explanation which one of the parties ought to have given, or from any -other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee”, Article 1958, LSA-C.C.

Thus we have here what is denoted both in the common law and in our civil code as a unilateral contract, or an obligation created by an offer accepted by an act: the offer or exchange of a promise for an act. The execution of the act (purchase of the 1954 Ford) by plaintiff in compliance with terms of defendant’s published offer constituted plaintiff’s acceptance of said offer, -creating defendant’s duty or obligation to furnish a 1955 Ford according to the terms of the published offer. See Comment, “The Unilateral Contract in Civil Law and in Louisiana” 16 Tulane Law Review 456.

Plaintiff’s motive in purchasing the 1954 Ford was not only to receive it for the trade-in and boot given, but also to receive the right to exchange without substantial charge 'this 1954 Ford for a 1955 model when the latter became available. The cause or consideration for what plaintiff gave the dealer, included not only the 1954 Ford but also the right to exchange it for a 1955 Ford according to the terms of the published offer. See Civil Code Article 1896: “By the cause of the contract, in this section, is meant the consideration or motive for making it.”; also (Professor) Smith, “A Refresher Course in Cause’ Law Review 2. 12 La.

The executed sale which plaintiff signed when he purchased the 1954 Ford contained within a paragraph printed at the bottom of the page:

“The front and back of this order comprise the entire agreement pertaining to this purchase and no other agreement of any kind, verbal understanding or promise whatsoever, will be recognized.”

Defendant urges with considerable force that applying the rule stated in United Engineering Co. v. Durbin, La.App. 1 Cir., 68 So.2d 614, the alleged independent collateral agreement based on acceptance of the newspaper offer was so closely related to the contract for purchase of a- 1954-Ford as to be “naturally and normally” included in the written contract; therefore , that parole proof should have been barred; or, that, in ariy event plaintiff waived his right to enforce this obligation as against defendant in view of the quoted clause.

However, as pointed out above, in the present case defendant was under a duty to notify plaintiff of any modification of the newspaper offer. The omission in this contract is construed against defendant. In a very similar situation, construing a similar clause, our Supreme Court held that acceptance of an advertised order completes the contract, which is not subject to further modification by either one of the parties without the consent of the other, Kodel Radio Corporation v. Shuler, 171 La. 468, 131 So. 462. Further, the: terms of this proviso limit it as the “entire agreement pertaining to this purchase”T which indeed was a complete contract within itself; but this purchase-sale contract, complete within itself, was nevertheless also the acceptance of an offer, creating another and a separate obligation.

Acceptance of an offer may of course be made by silent deed as well as by word; consent may be implied- from ac-> tions under 'the circumstances, as well as by expressed words; but such acceptance of, founded on such consent to, an offer nevertheless creates a valid contract, and the offerer is bound by the obligation previously offered by him in exchange for the act which the obligee has performed in response to the offer, LSA-Civil Code Articles 1802, 1811, 1816; Shreveport Traction Company v. Mulhaupt, 122 La. 667, 48 So. 144; Lowy v. Builliard, La.App. 1 Cir., 17 So.2d 855; Netterville v. Police Jury, 6 La.App. 512 (1 Cir.).

The record reflects that plaintiff went to defendant’s premises .with the perhaps naive belief that the advertisement meant just what it said; that as subsequently blazoned by heavy black headlines in large advertisements, “TVyO FOR ONE . . . Til September 30th AND THERE’S NO CATCH.IN IT" (Exhibits J-S, J-6, J-7, and J — S); that everyone who bought a 1954 Ford during the 2-week period was ipso facto entitled to exchange it for a 1955 model when such were available, according to the dealer’s offer. The published offer without qualification was that plaintiff’s acceptance thereof by purchase of a 1954 model entitled him to receive a 1955 model in exchange, which implicitly no more needed discussion or formalized warranty in acceptance than does the assumption' of one purchasing a new car that it will be painted rather than nakéd steel.

If defendant seriously argues that despite the plain wording of the advertised offer, defendant had absolutely no intention of making a bona fide offer but was merely intending to lure customers to defendant’s sales lot, or that, if a bona fide offer, the routine signing of a form document by plaintiff amounted to A waiver of substantial property rights because of small print at the bottom, not called to his attention by defendant, it may be well to recall the expression of the Ohio Supreme Court in an almost identical factual situation as reported at Meyer v. Packard Cleveland Motor Co., 106 Ohio St. 328, 140 N.E. 118, at page 121, 28 A.L.R. 986, at page 991:

“There is entirely too much disregard of law and truth in the business, social, and political world of to-day. * * * It is time to hold men to their primary engagements to tell the truth and observe the law of common honesty and fair dealing.”

Answer to Appeal.

The District Court judgment orders in specific performance of the contract, the defendant to “deliver to the said plaintiff a 1955 Ford two-door Sedan Customline V-8 with radio, heater, overdrive and windshield washers, in exchange for plaintiff’s 1954 Ford, all at defendant’s cost, the said plaintiff to pay the license fees and sales tax due thereupon.” In answer to the appeal, plaintiff points out that this was adequate relief in May of 1955 when the judgment was rendered; but due to the appellate delays the 1955 Ford model has now been superseded by a 1956 model. Plaintiff requests that judgment be amended to command defendant to deliver a 195(5 Ford of the same style, accessories, etc., instead of a 1955 Ford.

There is no evidence in the record that a 1956 Ford is of the same value as a 1955 Ford; there is no evidence that the additional depreciation on plaintiff’s 1954 Ford does not exceed the legal rate of five per cent per annum interest to which increase in award alone plaintiff is entitled by reason of the appellate delays (in the absence of frivolous appeal); we cannot amend the judgment as requested.

Initially, the plaintiff had alternatively demanded monied damages for the difference in value between his 1954 Ford and the 1955 Ford model to which plaintiff is entitled under the contract. Through defendant’s sales manager, the record indicates that the value of a 1955 Ford of the same style and accessories, etc., as plaintiff-appellee’s 1954 Ford is $2,622, while the value at date of trial of plaintiff’s 1954 Ford, which it was necessary for him to exchange for a 1955 Ford, was 'between $1,400 — $1,475. Adopting the lower figure, it would appear that plaintiff would be entitled to a judgment on his alternative demand in the sum of $1,222 plus legal interest from date of judicial demand until paid, and plus costs. (With this sum plus the 1954 Ford, at date of trial plaintiff could have obtained a 1955 model according to the terms of defendant’s obligation.)

However, in the answer to the appeal plaintiff-appellee did not see fit to request this alternative relief, although he did pray for “all general and equitable relief”.

We are cited to no authority that gives us the power to amend a decree in favor of the appellee in a manner other than as prayed for in an answer to the appeal, even though such answer contains a further prayer for “general and equitable relief”. On the other hand, the answer to the appeal was timely filed and does indicate that plaintiff is now entitled to further relief than allowed by the original decree. Under Code of Practice Article 906, we are remanding this case in order that the judgment may be amended in accordance with the views expressed herein. In all other respects, the judgment appealed from is affirmed. Defendant-appellant is to pay all costs of these proceedings and of this appeal.

Affirmed: but remanded for amendment of decree.

LOTTINGER, Judge

(dissents).

Petitioner, Leland H. Johnson, filed this suit for specific performance of an alleged contract against the defendant, Capital City Ford Company. The Lower Court awarded judgment for petitioner as prayed for. Defendant takes this appeal, which was answered by the petitioner.

The facts show that during the period of September 17, 1954, through September 30, 1954, the defendant, Capital City Ford Company, Inc., conducted an extensive advertising campaign through newspapers and radio for the purpose of selling its stock of 1954 model Ford automobiles. At intervals during this period, advertisements containing the following language were printed in the Baton Rouge State Times and Morning Advocate:

Although variations of the above advertisement appeared later in the campaign, the above ad was the only one which was printed prior to September 21, 1954, the date on which petitioner purchased a 1954 Ford from the defendant.

The evidence discloses that petitioner and his wife saw the advertisement, and went to Capital City Ford Co. and purchased a new 1954 Ford. The salesman who handled the transaction was E. J. Daigle. The evidence shows that the transaction took approximately one hour of time, during which time Mr. Daigle filled out a purchase order, which has been filed into evidence, which was signed by petitioner and approved by Mr. W. W. Holmes, Sr., the sales manager of the defendant company. As partial payment of the new car, the petitioner was allowed a trade in of $974.05 on his old car. At the bottom of the purchase order, and above petitioner’s signature is printed the following:

“I hereby agree to purchase from you under the terms and conditions specified, the vehicle described above. It is agreed, however, that neither you nor the Manufacturer will be liable for failure to effect delivery. Manufacturer’s warranty is shown on back of this order. It is agreed that there are no other warranties, either expressed or implied covering said car. This order is not binding on dealer until accepted by dealer in writing. I have read the matter printed on the 'back hereof and agree to it as a part of this order the same as if it were printed above my signature. The front and back of this order comprise the entire agreement pertaining to this purchase and no other agreement of any kind, verbal understanding or promise whatsoever, will be recognised. Receipt of a copy of this order is hereby acknowledged.” (Italics mine.)

Also,on the face of the contract is found a penciled .notation: “No ’55 deal.” .This notation is claimed by defendant to have been on the contract at the time petitioner signed same, however, petitioner and his wife deny this.

A few weeks later, petitioner and his wife went to defendant’s salesroom to exchange their 1954 Ford for a 1955 model, as per the advertisements. They were refused the exchange, and they now bring siiit for specific performance. A suspensive appeal was taken from the judgment for petitioner below, and on appeal the petitioner’s claim damages in lieu of specific performance. '

Petitioner’s contention is that the advertisement as quoted above constituted an offer which was accepted 'by his purchase of a 1954 model Ford. Petitioner admits that at the time of his said purchase, no conversation, whatever was held as regards the exchange of the 1954 model for a 1955 model. He denies that any specific agreement was necessary, contending that by his acceptance of the alleged offer, i. e. the buying of the 1954 Ford, the obligation of the exchange became binding on defendant.

Defendant, on the other hand, contends that the sale to petitioner was an outright sale- contract, and contained no deal for a 1955 Ford. Had the 1955 Ford deal been made a part of the contract, the petitioner would have received a substantially lower trade-in on his old car. Defendant 'contends that the advertisement was merely an invitation to come in and discuss a deal, and was not an offer, as is contended by petitioner. , ,

Defendant’s counsel objected to the introduction of a large part of the evidence which tended to alter, add to, of contradict thé terms of the written contract which was signed by petitioner and accepted by the defendant company. Such objections included the filing into evidence of-.the advertisements relative to the exchange.

Article 2276 of the LSA-Civil Code states as follows:

.“Neither shall parol evidence be admitted against or beyond what Í9 contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

In interpretation of this article, the Louisiana courts have held that parol evidence is inadmissible to vary or add to the terms of a written contract, and that such evidence cannot be introduced to explain, contradict or subtract from the clear and unambiguous language of the agreement, unless fraud or error is alleged. Smith v. Bell, 224 La. 1, 68 So.2d 737; Brenard Manufacturing Company v. M. Levy, Inc., 161 La. 496, 109 So. 43; Pfeiffer v. Nienaber, 143 La. 601, 78 So. 977; United Engineering Company of Louisiana v. Durbin, La.App., 68 So.2d 614; and Brandin Slate Company v. Fornea, La.App., 183 So. 572.

No fraud or error was alleged by the petitioner, and so the above rule of law is applicable in the instant case. Particularly is such true when considering the written agreement which provides that “The front and back of this order comprise the entire agreement pertaining to this purchase and no other agreement of any kind, verbal understanding or promise whatsoever, will be recognized.” The parol evidence rule in Louisiana, as set forth by the Louisiana Supreme Court in Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367, at page 369, is as follows:

“ ‘When persons commit their agreements to writing, their intentions and purposes cannot be sought outside the four corners of the written instrument. Where the terms of the agreement, ■however, are so ambiguous as not to be susceptible of intelligent construction, parol evidence may be admitted to make clear that which is obscure; but it is certainly in direct contravention of article 2276, Civ.Code, to admit parol, not to explain, but to add to and contradict, a written agreement.’ Bank of Napoleonville v. Knobloch & Rainold, 144 La. 100, 80 So. 214, 216.”

Whefe fraud or error is not alleged, the only exceptions to the parol evidence- rule are (a) the admissibility of parol evidence to explain ambiguous language in the written contract, and (b) admissibility of parol evidence pertaining to a- collateral agreement which does not vary or alter the terms of the written agreement. Brandin Slate Company v. Fornea, supra. As petitioner does not allege fraud or error, and it is apparent that the terms of. the written contract entered into are not ambiguous, let us consider the latter exception — the admissibility of parol evidence pertaining to a collateral agreement which does not vary or alter the terms of the written agreement. The test of admissibility as applied in Louisiana decisions in ■ this regard . is as follows:

“The test of admissibility in such cases is whether the evidence offered tends to alter, vary, or contradict the written contract, or only to prove an independent, collateral fact about which the written contract was silent. In the former case the testimony is inadmissible; in the latter it is competent and proper.” Davies v. William W. Bierce, 144 La. 663, 38 So. 488, 493.

It is clear, from the above decision, that •extrinsic evidence cannot be introduced to prove a collateral agreement which adds to or varies the terms of the written-contract. Now certainly the admission' of evi•dence of a collateral agreement would tend to add to and vary the contract under consideration, as the said contract specifically declares that it contained the entire agreement and that no ■ other agréement of any hind, pertaining to the purchase, would be recognized. I, therefore, feel that, under the clear law of this state, the admission of the extrinsic evidence in this case was improper.

To take the matter a step further,, and to. determine further whether certain evidence tends to vary, contradict or add to a written contract, we quote from United Engineering Company of Louisiana v. Durbin, supra [68 So.2d 615] :

“ ‘That parol may. be introduced to prove an independent ¡collateral agreement is a well:recognized exception to the general rule. The, .question presented in the principal case is whether the bond between the two alleged agreements is sufficiently close to prevent proof' of the oral agreement. "The test to determine whether the alleged parol agreement comes within the field embraced by the written one is to compare the two and determine ‘whether■ parties, situated as were the ones to the contract, would naturally and normally include the one in the other if it were made!’11”

Now certainly if the petitioner intended to make the trade'of a 1955 Ford a part of this contract, he would' 'have insisted that such provisión be made a part of his 'contract. This he failed to’ do, in fact no mention whatsoever was’ made of the 1955 deal until several weeks after the contract was signed and approved.

From the foregoing, it is my conclusion that the extrinsic evidence should not have been permitted, and- that petitioner’s suit should have been dismissed.

Even were I to consider, merely for purposes of argument, the prohibited evidence, I still feel that, petitioner’s case must fail as, under the greater weight of authority, the newspaper advertisement was not an offer but was merely an invitation to enter into negotiations for' ati agreement. The rule on this particular point is stated in Volume 1, Corbin,on Contracts, Section 25, page 60, as follows:

“It is quite possible to make a defi.nite and operative offer to buy or to sell goods by advertisement, in a newspaper, by a handbill, or on a placard in a store window. It is not customary to do this, however; and the presumption is the other way. . Neither the advertiser nor the reader of his notice understands that-the latter is. employed to close the deal without • further expression by the former. Such advertisements are understood to be mere requests to consider and examine and negotiate; and no one can reasonably regard them otherwise, unless the circumstances are exceptional and the words used are very plain and clear.
“On the other hand it is very common, where one desires to excite many people to action, to offer a reward for such action by general publication in some form. Some offers must be reasonably interpreted, according to their terms and the surrounding circumstances ; but action in accordance with such interpretation will close a .contract.” ■

It is noted that Mr. Corbin, as well as the other writers pn the subject, draw a distinction between advertisements to sell merchandise and advertisements for a reward., Advertisements announcing the terms of a prize contest fall into the same category as announcements of rewards because the characteristics of both require that they be addressed to the general public by advertising. As offers of rewards and prizes’must of necessity be made by advertisements, it is well settled that they can be withdrawn only in the same manner. Advertisements relating to the sale of merchandise do not have the same characteristics and, consequently, are governed 'by different legal rules.

In 77 C.J.S., Sales, § 25, p. 634, the rule is stated in similar language as follows:

“Business advertisements published in newspapers * * * stating that the advertiser has a certain quantity or quality of goods which he wants to dispose of at certain prices and on certain terms, are not offers which become contracts as soon as any person to whose notice they may come signifies his acceptance by notifying the other that he will take a certain quantity of them, but are ordinarily construed merely as an invitation for an offer for sale on the terms stated, which .offer when received may be accepted or rejected, and which, therefore, does not become a contract of sale until accepted by the seller; and until a contract has been so made the proposer may- modify or revoke such prices or terms.”

In 17 C.J.S., Contracts, § 46, p. 389, I find the following language:

“Proposals to deal. * * * Whether or not a business circular, a corporate prospectus, a published price list, or other advertisement of like nature is an offer which will, on acceptance form a contract, or is merely an invitation to ‘make an offer, depends on the language used; but generally a newspaper advertisement or circular couched in'general language and proper to be sent to all persons interested in a particular trade or business, or a prospectus of a general and descriptive nature, will be construed as an invitation to make an offer.
“Prize contests, etc. An offer of a prize may mature into a binding contract in favor of a successful contestant who has complied with the terms of the offer. However, a response to a proposal for exhibitors to show their wares at a public exhibition has been held not to make an agreement.”

In 12 American Jurisprudence pp. 526-527, Contracts, Section 28, I find:

“ — * * * A general offer must be distinguished from a general invitation to make an offer. Performance of the conditions of the former makes a legally binding 'contract, whereas compliance with the requirements of the latter involves nothing more than an offer, which may or may not be accepted by the party who issued the invitation therefor. A mere quotation of price must be distinguished from an offer. From the nature of the subject, the question whether certain acts or conduct constitute a definite proposal upon which a binding contract may be predicated without further action on the part of the person from whom it proceeds or a mere preliminary step which -is not susceptible, without further action by such party, of being converted into a binding contract depends upon the nature of the particular acts or conduct in question and the 'circumstances attending the transaction. It is impossible to formulate a 'general principle or criterion for its determination. Accordingly, whether a. communication naming a price .is a quotation or an offer depends upon the intention of the owner as it is manifested by the facts and-circumstances of each particular case.”

Of course throughout the country there are cases pro and con on the subject. Some hold newspaper advertisements by their peculiar wording to constitute offers. Others hold the advertisements to be mere invitations. In Louisiana we have certain cases holding advertisements to be binding offers, however, these cases deal with contests for prizes and with auction sales. In Schreiner v. Weil Furniture Co., La.App., 68 So.2d 149, tire Court held the advertisement to be a binding offer, however, this case dealt with an, advertisement announcing the rules and prizes to be awarded in a contest. A similar holding was reached in Youngblood v. Daily and Weekly Signal Tribune, 15 La.App. 379, 131 So. 604, which dealt with a newspaper subscription contest. In Maginnis v. Union Oil Co., 47 La.Ann. 1489, 18 So. 459, the offer was to sell at auction to the last and highest bidder, under terms and conditions set forth in the advertisement. These particular situations are covered by their own particular rules and statutes, and are not similar to the particular situation which is before us. Actually the question presented in the instant case is res novo in Louisiana.

As stated, the greater weight of authority in this country is to the effect that a newspaper advertisement of the nature presented in this case is not an offer, but merely an invitation for the customer to make an offer.

For the reasons hereinabove assigned, I respectfully dissent from the majority.

      . Although E. J. Daigle, the salesman involved testified that he must have discussed the lack of application of the advertised offer, because he invariably did so, plaintiff and his wife testified unequivocally and were believed by the District Court, that no discussion whatsoever occurred concerning the right to acquire a 1955 model automobile when plaintiff purchased his 1954 Ford. And it is to be noted that by implication defendant’s president admitted that the salesmen did not invariably discuss with customers whether they were interested in the bargain deal expressed, by the advertisements, see testimony of J. Theron Brown, President of Defendant at Tr-16:
      “Q. Well, now, was it the policy of you and your employees or your salesmen, or anyone connection with these deals, to discuss that with these people and inform them when they bought a 1954 Ford that they might not be entitled to a 1955 Ford?
      “A. If they came m and referred to the ad and for the purpose of discussing tbat particular proposition offered in the paper, yes. But that, as I understand it, was not mentioned in this particular case by the purchaser.” (Italics ours.)

      . To the naked eye this notation appears to be by a different hand and different pencil than the signature of the salesman who allegedly made this notation; on a photostat of this sale, all other pencilled notations allegedly made at the same time are legible, but this notation is almost invisible and cannot be read. Plaintiff and his wife testify positively that such notation was not on the contract when executed, nor when they returned approximately 2 months later, to receive their 1955 model; and while defendant’s salesman testified that it must have been on there because he would not have made such notation after the deal, another representative of defendant whom plaintiff and his wife testified on the latter occasion had examined the contract with them and found no such notation, was unable to remember either to confirm or to deny this visit of Johnson and his wife or whether or not he saw the contract on that occasion. Some further corroborative force to plaintiff's story is the testimony that such transactions were always stamped with a rubber stamp when a “No 1955” deal was made, and in this instance plaintiff’s contract was not so stamped. Of course, defendants testify with allegedly equal effect that these contracts were always likewise noted when a 1955 exchange deal was consummated. But it is to be remembered that contracts, including omissions, are to be construed against him who prepares them, in this ease defendant dealer.

      . Plaintiff’s answer is that he would not have bought the 1954 Ford car from defendant, even 'at 'that trade-in value given him by defendant, unless he thought he was to receive the 1955 car in exchange therefor without extra' cost (except' for sales-tax and license) when such later model was available.


author: ELLIS, Judge.

text:
    VIGILANT INSURANCE CO. et al. v. LUMBERMEN’S MUTUAL CASUALTY CO. et al.
    No. 4121.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Writ of Certiorari Denied March 26, 1956.

      Blanchard & Blanchard, Donaldsonville, for appellant.
    Elton A. Darsey, Houma, for appellee.
   ELLIS, Judge.

The basis of-this law suit is a collision which occurred between two trucks both of which were being driven in a northerly-direction on' Highway 29 near Belle Rose, Louisiana, running north and south, which Highway- at the scene' of the accident is-practically straight for a distance of some one-half mile. The lead truck, was owned by the plaintiff, Edward M. Carmouche, and was being driven by his agent, Alcide Acosta. The -following truck was owned and being driven by the defendant, O. C. Banzhoff. The plaintiff and his insurer brought suit for damages to the plaintiff’s truck against the defendant and his insurer.. The defendants answered, denying, any negligence, reconvening for damages to the defendant’s truck and plead, in the alternative, contributory negligence. -

The trial court dismissed plaintiffs suit as well as the reconventional demand .of the defendants. The plaintiffs appealed and the defendants have answered the appeal, seeking enforcement of the reconventional demand.

The collision occurred when plaintiff’s truck, the lead truck, made a left turn to enter a private driveway, and the defendant, in an attempt to pass to its left, struck the front of this truck.. The acts of negligence the plaintiff alleged the defendant driver to have' been guilty of were an excessive rate of speed, .failure to observe the signals - given by the leading truck, failure to keep a proper look-out and attempting to pass a vehicle without making sure the way was clear. The defendant, in his re-conventional demand, attributed certain acts of negligence on the part of the driver of the lead, or plaintiff’s truck. These are in not keeping a proper lookout, failure to heed signals of the defendant of his intention to pass, attempting to make a left ■hand turn without proper- signal, failure to remain in the right lane of traffic while the defendant was' attempting to' pass, and failure to see the defendant’s truck.

As to the accident itself, the plaintiffs submitted two witnesses. One was the driver of the lead truck who testified he gave.a signal that he-intended to execute a left hand turn and go into the private driveway about 150 feet before reaching the driveway. He also testified the defendant did not give any signal of his intention to pass, and that his vehicle was completely over the center line when the truck was struck. This- witness admitted that he never saw the defendant’s truck approaching although he looked into his rear view mirror. When asked to explain why he could not see the following truck he stated that he could not see very far in the rear mirror, that he looked into it about 15,0 feet before he tried to negotiate his left hand turn, hut did not continue to look into the mirror when he signalled for the turn.

The other witness for the plaintiffs was ■an eye witness, one Ernest LeBlanc, who •was standing in his front yard, and in a position to see the accident. He testified that the driver of the lead truck gave a ■signal of his intention to turn to his left when he was in his right lane of traffic •approximately 25 to 40 feet from the driveway into which he was going to turn.

The driver of the following truck testified that he had been following the. lead truck for about two miles at a speed of approximately 30 miles an hour, when he decided to pass it; that he pulled over on his left side of the road, blew his horn, increased his speed and attempted to pass; that when his truck reached the back end of the lead truck its driver began to turn left and gave a signal at the same time; that he pulled further to his left but hit the lead truck near its cab and then hit, on its front bumper, another truck which was parked about one and one-half feet off the highway upon' its shoulder; that his truck stopped about half way into the driveway where the lead truck 'intended to turn.

It has too often been held by our courts to warrant, the citation of authorities, that to negotiate a left-hand turn is the most dangerous maneuver upon the highway. The driver of the lead truck in giving his signal to turn left only some 25 to 40 feet before reaching the driveway, and in turning without seeing that his way was clear, constituted negligence- upon his part. He was charged with the duty to ascertain the way was clear before he began to make his turn. He did not do this, but looked into his mirror once and proceeded ■ with his maneuver. By his own admission he never saw the following truck nor did he turn to look in an attempt to see if the way was clear. “That which an operator of a motor vehicle can see he must see, and in legal contemplation, he does see, and his failure to see what he could have seen by the exercise of due diligence does not absolve him' from responsibility therefor.” Bergeron v. Roberson, La.App., 63 So.2d 20. Also Scheib v. Ledet, La.App., 57 So.2d 814.

In a similar case, Messina v. Audubon Ins. Co., Inc., 67 So.2d 143, this Court held that where a truck driver, if he signalled at all, did not do so until he was ready to' commence a left-hand turn into a private driveway, and the driver of the following-automobile, traveling at a rate of speed from 50 to 55 miles per hour, when the highway was d-ry and paved, during day-light, and the following driver immediately applied his brakes and pulled to his' left, the driver of the truck was negligent and his negligence was the -proximate cause of a collision and the following driver was not at fault. The theory of this last case is that, even though a left hand signal was given it was not made soon enough, and the forward driver was negligent in failing to exercise the precautions for making such a turn with which such a person is charged.

There is nothing in the evidence .to show the defendant Banzhoff was guilty of any negligence ■ which contributed to -the accident. From all of the testimony, he was operating his truck in- a safe and prudent manner and within the legal speed limit. , The highway was straight where he attempted to pass the lead truck. After the collision the. lead truck had all four wheels on the pavement and the photographs and evidence show the lead truck was struck near its cab. This proves the first truck had not. entered the driveway but that it had crossed over to the left hand lane in the face of the .on-coming following truck, which came to rest about half way into the driveway. The facts seem quite similar to those in the Messina case, supra, and we conclude the proximate cause of the collision was the negligence of the driver of the lead truck.

Accordingly, the judgment of the lower court is affirmed insofar as it dismisses the plaintiffs demand, but amended by allowing the reconventional demand of the defendant, Banzhoff, and judgment is hereby rendered in favor of O. C. Banzhoff, and against Edward M. Carmouche, in the full sum of $66.50 with legal interest thereon from date of judicial demand, until paid and for all costs.

Affirmed in part and reversed in part.


text:
    Walter F. ZEHNER, Jr., et al. v. John Adam ANDERS.
    No. 4115.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Voorhies & Labbe, Lafayette, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Nehrbass, Lafayette, for defendant-appellant.
   ELLIS, Judge.

Plaintiff, Walter F. Zehner, Jr. and his insurer, Pearl Assurance Co. Ltd., which holds a subrogation from the plaintiff, brought this suit against John Adam An-ders, claiming damages to plaintiff’s automobile as a result of an accident which occurred about 4 miles from Opelousas, La., and for expenses incurred as a result of the accident. The defendant admitted the accident but denied any negligence whatsoever, expressly plead contributory negligence of the plaintiff, and reconvened charging the negligence of the plaintiff to be the proximate cause of the accident, and asked damages in reconvention to his own automobile. In addition defendant plead the doctrine of the last clear chance.

Upon the trial the damages to both automobiles were stipulated and the trial court rendered judgment, finding both parties were guilty of negligence, whereupon plaintiffs’ suit was dismissed as well as the defendant’s claim in reconvention and costs were assessed equally between them.

From this judgment both plaintiffs and the defendant perfected a devolutive appeal.

The accident occurred on U. S. Highway 190 between Opelousas and Baton Rouge, La., which runs east and west. The defendant, Anders, was driving a pickup truck in an easterly direction, proceeding toward Baton Rouge. At the site of the accident, on the north side of the Highway, is located a filling station and restaurant known as Nolan’s Place, and defendant decided he might need some gasoline and pulled off onto the shoulder on his right-hand side of the highway, where he came to a complete stop, looked for approaching traffic and then made a left-hand turn across the Highway to reach the filling station. The highway at this point is about 24 feet in width and when Anders had covered little more than half this distance he was struck by the plaintiff’s automobile, the right front portion of plaintiff’s car striking the front left portion of Anders’ vehicle. The plaintiff was traveling toward Baton Rouge, in an easterly direction. The collision occurred about 4:30 in the afternoon, and the weather was rainy, cloudy and overcast, and it was drizzling at the time.

The plaintiff relies upon the fact that the defendant made a left-hand turn across his lane of traffic without first making sure that the way was clear. The defendant rests his reconventional demand upon the allegations that the plaintiff was proceeding at a highly excessive rate of speed and instead of continuing on the south side of the Highway he turned into the left lane or north side thereof, striking Anders’ truck; that his speed, considering the weather and traffic conditions, was negligent, as was his failing to see what he is legally charged to have seen and to do what he could to avoid the accident by slowing down and bringing his car to a stop dr keeping in his right lane of traffic. Coiitributory negligence is also plead.

It is shown by the preponderance of the testimony that at the place where defendant had stopped his truck on the shoulder preparatory to making a left-hand crossing of the highway that it was not gravel but was clay which, because of the drizzling rain, had become very slippery. It is admitted that neither the defendant nor his wife ever saw the plaintiff approaching from the west until the collision. According to the eyewitness Hargroder, he saw the plaintiff’s car approaching when it was approximately 300 yards. This witness evidently meant 300 feet for the reason that he stated that the plaintiff -blew his horn at that distance, which, of course, would be some 900 feet which is not only unlikely but contrary to the plaintiff’s testimony and the physical facts. Be that as it may, Hargroder testified that when the defendant started his truck to make a left-hand crossing of the highway that the back wheels spun in the clay and that when the plaintiff was almost opposite the pickup truck the rear wheels hit the paved portion of the highway which shot the pickup truck forward, and that the impact probably occurred when the front of the pickup truck was approximately 3 or 3^4 feet across the center line.

The plaintiff’s testimony is corroborative of the fact that the point of impact was in the north lane 3 or 3}4 feet across the center line, for he testified that in an attempt to avoid the collision he had pulled as far to the left as he could and at the time of the actual impact his left front wheel was off the pavement on the north side of the highway.

The accident occurred before dark at approximately 4:40 P.M. and although it had been drizzling rain, visibility was apparently good and there was no excuse for the defendant or his wife, to whom he entrusted the duty of looking for traffic approaching from the west, not to have seen the plaintiff or to have heard the latter’s horn, especially in view of the fact that both testified that the windows were down on the pickup truck. The testimony shows that the plaintiff was in such close proximity to the defendant’s truck at the time the latter decid - ed to cross the highway that had ■ he seen what he should have, seen he would have known that he could not safely make the left-hand crossing of the highway.

There is no doubt of the gross negligence of the defendant in making this left-hand- crossing of the highway in the face of approaching traffic. The cases are legion that such a maneuver is one of the-most-dangerous and a party contemplating such a turn must exercise the highest degree of caution. A few of these cases are: Home Insurance Company v. Warren, La.App., 29 So.2d 551; Bonstaff v. Hawkins, La.App., 30 So.2d 781; Myers v. Landry, La.App., 50 So.2d 318; Tyler v. Marquette Casualty Co., La.App., 79 So.2d 376.

The lower court found the defendant clearly guilty of negligence in making, the left-hand turn across the highway with-. out exercising the proper pare and caution as required under the law but also found the plaintiff guilty of contributory negligence; stating that he could not agree with the plaintiffs testimony as to the latter’s rate of speed, viz., 45 pr 50 miles,per hour, based, as he stated, in his written reasons, upon the.finding that according to the bills of rejpai'rs which were placed in' evidence it was apparent “that extensive damage was done to both vehicles in this collision.” As to the speed of'the plaintiffs vehicle, he testified that he had been following a big truck' and that he had stayed approximately 300 feet behind the truck due to the spray and dirt which such a vehicle throws when the pavement is wet, and that his speed was approximately 45 miles per hour and -did not exceed 50 miles per hour. It must be re-, membered that this is U. S. Highway 190, a main artery of traffic, and that it had been recently widened to 24 feet of -hard surface or pavement. A speed of 50 miles per hour where visibility is good .on a wide, payed main highway .is not' excessive even though it might have been drizzling rain. ' One traveling at such a speed is within the legal speed limit and under the, normal expected . hazards of-the .road would not .be negligent in traveling at such- a speed.

The ■ bills referred to , by the learned judge of the .District Court for the damage to the plaintiff’s automobile amounted to $472.04, whereas the damage to the pickup-truck of the defendant amounted to $309.69. Considering the hourly wage and the cost of materials, a damage of four or five hundred dollars to an automobile does not show too extensive a. demolishment. Therefore, the nature of the damages, the cost of repairs to plaintiff’s and defendant’s respective automobiles does not of itself convict plaintiff of traveling at' an excessive speed or in excess of 50 miles per hour as-he testified.

The learned judge went further in his written reasons and stated: “Even considering Mr. Zehner’s testimony as given by him, if he had been traveling at a rate of speed not in excess of 50 miles per hour and if he had applied his brakes while 200-feet away from the Anders automobile, he would have stopped in time to avoid the collision and his failure to do so would also-constitute contributory negligence in this-instance.”

The- testimony of the plaintiff was to the-effect that he had been following this big truck at a distance of approximately 300’ feet, that when he was approximately 300-feet and the large truck had passed the defendant’s pickup truck which was parked on the south side of the highway, he saw the truck, blew his hom as a warning, and when at approximately 200 feet, having become aware of the fact that the defendant intended to cross the highway, he applied his brakes and pulled to the left o-f the highway and continued blowing his horn.

Based upon these facts and in answer to-the' conclusion of the lower court that the plaintiff should have been able to stop within 200 feet even if he was going at 50 miles, per'hour,- counsel for the plaintiff in' his brief states:

“Assuming further that petitioner was travelling at a speed of 50 -miles per hour and making reference to the date table appearing in Volume 14 of the Tulane Law Review on Page 503 as a rough guide to determine the approximate distance required to stop under average and poor conditions, it would require 193.7 feet to stop under average conditions and 471.7 feet to stop under poor conditions. The article makes reference to poor conditions ' as that of ice or snow. Neither were present here, but the highway was wet and slippery when the brakes were applied. It would be safe to assume that the distance required to stop petitioner’s vehicle would be somewhere near the mid-point between 193.7 feet and 471.7 feet or about 322.7 feet. In view of the testimony'given by petitioner wherein he stated he was approximately 200 feet away from defendant’s pick up truck when it began to reenter' the highway, it would have been impossible for him to stop * *

While the plaintiff may have been closer than 200 feet or he could have been somewhat farther, we must accept his testimony that his estimate was approximately correct, and while it is well settled that the speed tables as referred to are approximations based on averages and cannot be accepted as an absolute guide, yet in applying them to definite facts they are of great value. The 50 miles per hour which plaintiff was traveling was not excessive on one of the main highways even though it might have been drizzling or raining where the visibility was good, and even though at such a speed and under such conditions ■ a motor vehicle cannot be stopped within two or three hundred feet. The defendant should not have attempted to cross this highway in the face of approaching traffic which was within the distance plaintiff was bound to have been at the time defendant attempted such a left-hand crossing. The very fact that the defendant was only able to travel some 15 feet before being struck by plaintiff’s vehicle which was approaching at approximately 50 miles per hour is almost conclusive proof of the short distance that plaintiff’s vehicle was at the time defendant began his left-hand crossing of the highway, and, in fact, 'corroborates the testimony of the plaintiff. A similar conclusion was reached by the Court of Appeal, Second Circuit, in Dudley v. Surles, La.App., 11 So.2d 70-72:

“The fact that the front end of the truck had reached a distance of only •314 feet east of the center line, this being shown by the testimony of a disinterested witness, argues strongly in ■favor of the closeness of -the colliding, vehicles when the. turn began and tends ■to corroborate the testimony of Miss ■Huff- in that respect.”. •

We are therefore of the opinion that the proximate cause of the collision in this case was the grossly negligent attempted left-hand crossing of U. S. Highway 190 by the defendant in the face of the closely approaching plaintiff’s automobile, and that the plaintiff was not contributorily negligent as the defendant by his maneuver created an emergency from which the plaintiff apparently did everything in his power to extricate himself but to no avail. For the above reasons the judgment' of the District'Court is reversed; and judgment herein is herewith rendered in favor of plaintiff insurer- in the amount of $222.04 and in favor of plaintiff Zehner in the full sum; of $355.10 and against defendant Anders, together with legal interest from date of. judicial demand until paid; defendant is taxed with all costs of these proceedings.

Reversed and rendered.. ..


author: LOTTINGER, Judge.

text:
    Ervy BROUSSARD v. Eno DUHON and Southern Farm Bureau Casualty Insurance Company.
    No. 4111.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Davidson, Meaux, Onebane & Nehrbass, Lafayette, for appellants.
    LeBlanc & Summers, Abbeville, for ap-pellee.
   LOTTINGER, Judge.

The trial judge rendered written reasons for judgment which we herewith set out in full:

“Plaintiff brings this suit for damages occasioned to his automobile in a collision with a truck driven by defendant Eno Duhon, which occurred on August 27, 1953, at the intersection of Louisiana Highway No. 476 and a ward road entering same on the north side. Plaintiff was driving on the highway, referred to as the ‘Leroy Road,’ in a westerly direction, and defendant was traveling south, on the ward road, entering the highway from the north side. This is a ‘T’ intersection, and the view of both drivers was obstructed by a large and heavy growth of tall weeds along the Ward road and also along the Leroy road for some distance before the intersection.
“Defendant pleads no fault on his part, and, alternatively, the contributory negligence of plaintiff as a bar to recovery if he should be found negligent.
“The Court has thoroughly reviewed the record in this case, and finds that plaintiff Broussard was proceeding homeward on the Leroy road at a speed of from forty-five to fifty miles per hour. Mr. Duhon, returning in his truck from a field where they had been working, approached the Leroy road, and being unable to see if any traffic was approaching on the main highway when he stopped his truck, proceeded into the intersection, turning to his right, slowly, when he perceived the Broussard car bearing down upon him. What he did then is not clear from the evidence. One of his passengers states that he shifted gears in an attempt to back up; Mr. Duhon states he brought his truck to a stop with the front end two or three feet into the highway. Broussard says that the truck was about six feet into the highway, and that it struck his car as he attempted to pass.
“Mr. Duhon could not state how far away the Broussard car was when he first saw it, his estimate varying from two hundred to four hundred feet, nor can he accurately estimate the speed at which it was traveling.
“The court is impressed by the sincerity and apparent truthfulness of Mr. Duhon and his witnesses, and also of Mr. Broussard, who is his only eye witness, and the other witnesses who arrived there shortly after the accident.
“From the physical facts, however, it is my conclusion that the Duhon vehicle did enter blindly into the heavily traveled highway, and that the impact occurred approximately six feet in the Leroy road. It is of no importance, in my opinion, whether the truck was completely stopped at the time of impact, or was moving slightly forward. Broussard was suddenly confronted with the appearance of this obstacle in his path. He applied his brakes, and skidded in the loose gravel, then attempted to pass to the left. There is no evidence in the record that he was traveling at an excessive speed, the highest speed even suggested by counsel for defendants in his cross-examination being SO or 55 miles per hour, which in itself would be a reasonable speed on this particular highway. Under these circumstances, the Court feels that Mr. Broussard acted in a prudent manner and was free of any contributory negligence such as would bar his recovery, and that the proximate cause of the accident was the negligence of Mr. Duhon in entering too far upon the Leroy highway from the inferior ward road without making sure, by use of ordinary and reasonable prudence and care, that it was safe for him to do so.
“The amount of plaintiff’s damages to his automobile are undisputed, being the sum of $524.58. A proper case has also been made out for loss of use of the automobile in question, plaintiff stating that he was fortunate enough to obtain a ride to his work in Lafayette with a friend for fifty cents a day for the three weeks he was deprived of his car. At six days per week, these damages amount to $9 in toto, being the actual damage suffered by him.
“Judgment is therefore rendered in favor of plaintiff Ervy Broussard, and against the defendant Eno Duhon and his insurer, Southern Farm Bureau Casualty Insurance Company, of Jackson, Mississippi, in the full sum of $533.58, and for all costs. See Decree to be prepared and presented for signature by attorneys for plaintiff.”

From the above judgment the defendants have appealed, maintaining, principally, that Duhon’s vehicle was never more than two or three feet into the so-called Leroy road, being on the shoulder thereof and not on the traveled portion. As will be seen from the trial judge’s reasons for judgment set out above, he concluded that the impact occurred approximately six feet in the Leroy road. A careful review of the record fails to disclose any manifest error in his findings. Trooper Miller testified that it appeared to him that the impact had occurred at least two and one-half feet in the traffic lane on the Leroy road and further testified that this road has no shoulders but merely a ditch on either side of the traveled portion. The plaintiff himself testified on both direct and cross examination at least four times that he was traveling approximately six feet from the ditch line on the north side of the road and that the collision occurred six feet from the intersection of the Ward road and the Leroy road. Plaintiff further testified that the Duhon truck was just coming into the Leroy road when he first saw it and he was about 50 feet away. He states that he immediately applied his brakes but could not avoid the accident. The damage to plaintiff’s automobile was confined to the right door and right rear fender. No part of the front of plaintiff’s automobile was damaged, whereas, the left front bumper of defendant’s truck was damaged. After the collision the automobile and truck came to rest on. the northern side .of the highway a short distance west of the intersection.

The issue presented is primarily one of fact and we are unable to find anything in the record which would warrant a reversal of the findings by the lower court.

The statutory law of this state appears to be very clear as is provided by LSA-R.S. 32:237, subd. E as follows:

“The driver of a vehicle entering a public highway from a private road or entering a private road from a public highway shall yield the right of way to all vehicles approaching on the public highway and to pedestrians properly walking thereon.”

We concur with the lower court that the proximate cause of this collision and resulting damages is due to the negligence of the defendant in blindly entering into the heavy traveled highway without ascertaining to see if it was safe to do so particularly in the face of oncoming traffic. Plaintiff was driving on a main highway and the defendant was approaching same from an inferior side road. The plaintiff had the right of way and he had the right to assume that the truck of defendant approaching from the side road would stop before entering the main highway. We think this case is similar to the case of Trahan v. Lantier, La.App., 33 So.2d 136. We are further of the opinion that the plaintiff was confronted with a sudden emergency.

We note that counsel for plaintiff in their brief contend that the latter is entitled to an additional $10 per week for three weeks for loss of use of his vehicle. The plaintiff has not answered the appeal and, consequently, the judgment appealed from cannot be amended in his favor.

Finding no manifest error in the judgment appealed from, the same is hereby affirmed.

Judgment affirmed.-


author: JANVIER, Judge.

text:
    B. F. TOUPS v. Clarence Marion TRENT et al.
    No. 20647.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.

      Thomas O. Collins, Jr., New Orleans,, for plaintiff-appellee.
    Parnell J. Hyland, Porteous & Johnson, New Orleans, for defendants-appellants.
   JANVIER, Judge.

At about 10:30 o’clock in the morning on October 23, 1954, there was an intersec-tional collision at the corner of Tricou and Burgundy Streets, in New Orleans. One of the cars belonging to B. F. Toups, driven at the time by his wife on a family mission, was on Burgundy Street going in a down .river direction, and the other, car, owned by a Mr. Hanley and driven by Clarence Marion Trent, who apparently had borrowed it, was on Tricou Street going in the direction away from the river, so that as the cars approached the intersection the car driven by Trent was coming from the right side of the Toups car.

The cars met approximately in-the center of the intersection, Trent bringing his car to a stop almost at the point of impact and the Toups car proceeding after the impact across the remaining portion of the street and coming to rest on the sidewalk at the lower lefthand corner.

Trent was alone in the car driven by him and Mrs. Toups was accompanied by her three children, one of whom is seven, another is six and the third two years old.

Toups broughf this suit alleging that the accident had been caused by the negligence of Trent in failing to maintain a proper lookout and,failing to maintain control of his car, in operating it at an excessive rate of speed, and in failing to yield the right of way to Mrs. Toups. :

Both Trent and the Allstate Insurance Company were made defendants and judgment in the sum of $294.60 was prayed for against them solidarily.

It is conceded that the actual cost of repairing the plaintiff’s car was $259.78, and it was agreed that in the event that judgment should be rendered in favor of Toups, it would be for that amount. Apparently there were.no personal injuries.-.

Defendants admitted the occurrence of the accident but denied liability, averring that the collision had been caused by negligence of Mrs.- Toups and, in the alternative, pleaded contributory negligence in that Mrs. Toups had failed to maintain a proper lookout, had failed to maintain .control of her car, had driven it at an excessive rate of speed, and had failed to yield the right of way to the car driven by Trent, which was approaching from her right.

There was judgment in favor of plaintiff against defendants solidarily in the sum of. $259.78. ' Defendants appealed suspen-sively and plaintiff has answered the appeal praying that the judgment be affirmed.

There is no doubt that neither car entered the intersection at an excessive speed, but it is also clear that before entering the intersection neither driver looked, with any degree of care to see if. any other- car had entered or- was about to enter the intersection. Mrs, Toups herself says that although she looked into the .direction from which the Trent car was approaching and could see for-about a quarter of a block, she saw nothing and therefore proceeded to enter. One thing is certain, the Trent car was approaching, was only a short distance away, and could have been seen had Mrs. Toups actually looked.

It is contended that she had preempted the intersection and this contention is based on the fact that -the car driven by Trent struck the car driven by Mrs; Toups on the right side and a foot or two back from the front bumper. We cannot agree that preemption is' shown by this fact.

The two, cars .entered the intersection at about the same time, and, since neither street was accorded priority over the other, the car driven by Trent which was approaching from the right was accorded the right of way by LSA-R.S. 32:237, subd. A.

In contending that the car driven by Mrs. Toups had preempted the intersection, counsel confidently rely upon the decision of the Supreme Court in Booth v. Columbia Casualty Company, 227 La. 932, 80 So.2d 869, 870, in which the Supreme Court used the following language:

“ * * * the automobile which first enters an intersection has the right of way over an approaching automobile * * *>>

We have complete confidence in our opinion that the Supreme Court did not intend to establish the principle that regardless of any other considerations the automobile which, by a split second, enters an intersection first, -obtains the right of way as a result of preemption. In discussing this same Booth case, we, in an opinion rendered this day, Ehtor v. Parish, La.App., 86 So.2d 543, said:

“Decisions of the Supreme Court are to be accorded only a reasonable construction, and with this in mind we feel sure that the Supreme Court never intended that its holding in Booth v. Columbia Casualty Co., supra, would be applicable in a case such as the one before us where the motorist claiming the pre-emptive rights entered a narrow' intersecting street without looking and fully cognizant of the fact that to ‘attempt a crossing would be equivalent to gambling with life and limb.”

We base our opinion as to the interpretation of the language of the Supreme Court in Booth case on the fact that .in earlier cases the Supreme Court has refused to grant writs of certiorari where we held that preemption does not result merely from the fact that, .one vehicle enters the intersection ahead of the other. As typical of those cases see Facio v. Bellone, La.App., 39 So.2d 448, 449, in which we said:

“It is .very, true that we have often said that in spite of the right of .way provisions of the traffic ordinance, if a vehicle without the right of way enters and preempts an intersection, its driver thus acquires the right to proceed. But in cases in which we ■ discussed the question of preemption we have also said, and other courts have said, that preemption does not result solely from arriving a split second ahead of another vehicle. The driver who claims preemption must show that he entered the intersection at reasonable speed so far in advance of the other vehicle that he would not be struck by the other vehicle also proceeding at proper speed. See Sheehan v. Hanson-Flotte Co., La.App., 34 So.2d 657; Pancoast v. Cooperage Cab Co., La.App., 37 So.2d 452.”

See, also, Mansfield (Johnson) v. Toye Bros. Yellow Cab Co., La.App., 78 So.2d 544, and Velasquez v. Murray-Brooks, Inc., La.App., 68 So.2d 681, 683, in which we said:

' “The mere fact that Velasquez was able to drive his car into the intersection ahead of the truck does not indicate that he had preempted the intersection and was entitled to the right-of-way * * *.” .

In Lafont v. Nola Cabs, Inc., La.App., 65 So.2d 918, 920, appears the following:

“We have often said that preemption does not result from merely entering an intersection first. In order to preempt an intersection the driver of the car who claims to have entered it must show that he entered it at a proper speed and sufficiently in advance of the car on the intersecting roadway to permit him to cross without requiring an emergency stop by the other vehicle.”

See, also, Dodd v. Bass, La.App., 76 So.2d 572, 574, in which appears an extensive and' excellent discussion of the principle which is involved:

“ .* * * While it is true it has been repeatedly held the automobile which first enters the intersection has the right to proceed, having the right of way over any automobile approaching at right angles, and that the driver who does not respect the legal right of the automobile which first entered the intersection to proceed through the intersection in safety, is negligent and that this is so even though the car entering the intersection secondly in point of time is being driven on a right of way street, Gauthier v. Fogleman, La.App., 1951, 50 So.2d 321, and authorities cited therein, we are nonetheless of the opinion the rule so stated has no application in the instant case. We so resolve for the evidence conclusively shows the two automobiles here involved entered the intersection at approximately the same time. That the Dodd car may have proceeded a few feet beyond the center of Robert Street is not proof it preempted the intersection, but rather, we think, it shows the contrary. The rule, we think, with special application under the circumstances here presented, and enunciated on many occasions, is that preemption of an intersection under the provisions established by our jurisprudence, does not mean, the prior entry of the vehicle simply by a matter of a few feet, or in relation to the time element, by a fraction of a second ahead of another vehicle, but in order to support a charge of negligence such preemption must be construed to mean an entry into an intersection with the opportunity of clearing the same without obstruction of the path of another vehicle under reasonable and normal circumstances and conditions. Butler v. O’Neal, La.App., 1946, 26 So.2d 753; Aucoin v. Houston Fire & Casualty Co., La.App., 1950, 44 So.2d 127; Boudreaux v. Moreau, La.App., 1954, 73 So.2d 192. The responsibility thus imposed upon the vehicle which may perhaps reach the intersection by a very small margin in time or distance over a vehicle approaching at right angles, is that the driver and especially the driver on a non-right of way street, must be sure that he has a sufficient margin of both time and distance to clear the intersection without danger. Waller v. Rapides Grocery Co., La.App., 1945, 22 So.2d 407. The testimony of the parties who were the only eyewitnesses to the collision, coupled with the location of the point of impact between the twó vehicles, has convinced us that Mrs. Dodd did not have the right to proceed across the intersection because she could not do so without danger of a collision with,the.Bass car which was approaching the intersection at about.the same time on the intersecting street.”

Counsel for plaintiff points to the fact that Burgundy Street is paved, while Tricou Street is not, and he contends that, as a result of this, cars on Burgundy Street are accorded the right of way over those on Tricou Street. We found a similar situation in Mansfield v. Toye Bros. Yellow Cab Co., supra, and, finding that neither was “given a right-of-way status by local ordinance,” held that ■ the mere fact that one street is paved, does not of itself give to vehicles on that street priority over those on. intersecting unpaved streets.

Our conclusion is that this accident was caused, or at least was contributed to, by the negligence of Mrs. Toups in entering the intersection without looking.

Accordingly, the judgment of the lower court is annulled, avoided and reversed, and the suit of plaintiff is dismissed at his cost.

Reversed.

REGAN; J., absent, takes no part.