author: ELLIS, Judge. TATE, Judge

text:
    Irving C. SUIRE et al. v. Lottery WINTERS et al.
    No. 4201.
    Court of Appeal of Louisiana. First Circuit.
    May 17, 1956.
    Rehearing Denied June 29, 1953.
    Writ of Certiorari Granted Sept. 28, 1956.

      Provost & Ernest, New Iberia, Dubuis-son & Dubuisson, Opelousas, for appellants.
    Pugh & Boudreaux, Lafayette, for ap-pellees.
   ELLIS, Judge.

This suit was filed by the plaintiff and his collision insurer for the purpose of recovering for property damage and personal injuries as a result of an automobile collision which occurred Nov. IS, 1952 when plaintiff ran into the rear end of a cane truck and trailer belonging to the defendant, Lottery Winters. Suit was filed against Winters, his insurer, and Winter’s alleged employer, Clemire Norris.

Plaintiff alleged that the loaded cane truck was parked approximately one mile east of Erath on a paved highway of standard width, 18 feet, with shoulders measuring approximately 10 feet in width on each side of the pavement, without any lights of any kind burning thereon and without any warning signals of any kind displayed at or near the said truck, and at the time of the collision neither the owner of the truck nor any one else was situated at or near the truck; that the construction of the loaded cane trailer, its height from the ground and the fact that it was covered with dust, dirt and mud caused it not to be visible nor to reflect any light whatsoever; that plaintiff’s automobile was approaching a car coming from the opposite direction and he switched his headlights from bright to dim, decreased his speed, but that the bright headlights of the approaching automobile rendered it extremely difficult to see to the front “for an instant” and caused plaintiff to be temporarily “blinded” for a moment and “inásmuch as defendant’s truck was situated only a few feet West of the point at which assured’s automobile and the opposing automobile traveling in the opposite direction met, assured had no notice or warning of the presence of said truck on said highway and was granted no opportunity whatsoever to observe its presence and the perilous situation created thereby in time to avoid said collision;” that at the time of the collision “the weather was clear, the road surface was dry, and there were no artificial lights situated at, on or near said highway.”

The defendant’s answer was a general denial, and a specific denial of any relationship of employer-employee as to the defendants, Winters and Norris. Defendant further plead contributory negligence.

The case was duly tried and for oral reasons assigned judgment was rendered in favor of the plaintiffs and against the defendant Winters and his insurer. Judgment was rendered in favor of the defendant, Norris, rejecting the demands of the plaintiff. The defendant Winters and his insurer have appealed and the plaintiff has answered the appeal asking that the amounts awarded be increased to the sum prayed for in plaintiff’s petition and as thus amended affirmed.

It is clear that the plaintiff must remove this case from the general rule and place it in the exception thereto by proof that the cane truck was so situated, constructed and of such a color as to be most difficult to see at night and that, as he alleged, it was parked without flares, reflectors or lights and unattended and that he was blinded by the bright lights of the approaching automobile, and although he reduced his speed he was unable to see the parked truck in time to avoid the -collision.

One of the first cases on the exception to the general rule upon which the plaintiff depends is Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377. Also see Cole v. Burgess, La.App., 31 So.2d 450; Warnick v. Louisiana Highway Commission, La.App., 4 So.-2d 607; Rea v. Dow Motor Co., La.App., 36 So.2d 750. There are many other cases in which plaintiffs have recovered under the exception to the general rule and which it is not necessary to cite.

On Nov. 15, 1952 the plaintiff was returning from Delcambre traveling west toward Erath at approximately 7:30 p. m. and he saw an approaching car and dimmed nis bright lights whereupon the driver of the approaching car put his lights on bright and he stated: “That is the last I can recall.”

Also offered by way of deposition is the testimony of John Suire, a cousin of plaintiff, who stated that he was following the latter's car just prior to the collision, and that he realized that plaintiff had run into something and he immediately applied his brakes and they, being somewhat defective, pulled him to the left, so he went around plaintiff’s car and the truck and continued without stopping. At the time he did not know who was driving the car in the collision and as he was on Army leave and had a short time to reach Orlando, Florida he did not stop. This witness stated that he had started to pass the plaintiff but saw the car approaching and as he could not establish the distance he did not take a chance and it was about this time that the plaintiff collided with the rear end of the truck. Apparently the plaintiff never did see the truck for this witness doesn’t testify that plaintiff slowed down prior to the collision.

It is shown that plaintiff was traveling at a reasonable speed of 30 to 35 miles per hour at the time of the collision. Plaintiff stated that he did not see anything, flares, nor the truck, and the last thing that he recalls as he dimmed his lights was that the approaching car, he thought apparently through error, switched its lights to bright. Plaintiff, when asked how far the car approaching was from his car when he dimmed his headlights stated, “It wasn’t very far. I guess he was — I would say five or six cars, three or four cars, maybe further or closer. I couldn’t tell you exactly.” Plaintiff also stated that a short way out of Delcambre he had come upon another wreck in which a car had run into the rear of a parked cane truck. This accident occurred at the height of the cane hauling season and it is shown that these loaded cane trucks were to be expected on the highway.

Plaintiff indirectly stated that he was suddenly blinded by the headlights of the approaching car. When asked by his attorney: “* * * Were you traveling alone when you stated that these headlights suddenly blinded you?”, he answered, “I was, sir.” The witness John Suire makes no reference nor was he asked with regard to the bright lights of the approaching car but it is clear that the lights did not blind him as he successfully went to the left of the plaintiff’s automobile and tire truck and passed both in time to avoid any collision with the approaching car. In fact, he does not mention any fear on his part that he might collide with the approaching car before being able to successfully pass the automobile and truck. From his testimony and that of the driver and guests in the approaching car to the effect that they did not see or observe Suire’s car, the approaching car must have been, a greater distance at the time of the collision than the driver Overton Boudreaux and his wife estimated. According to their testimony they were very close to the front part of the truck.

Steven Theriot, witness on behalf of plaintiff, stated that he was traveling on the highway from Delcambre to Erath on the night of plaintiff’s accident, and he passed the latter just out of Delcambre, and that he was traveling approximately 35 miles per hour. This witness also passed the wreck in which an automobile had fun into the rear of a cane truck, and stated that when he came to the defendant Winter’s truck it was necessary that he stop “because they had two cars in front of me that had stopped to cross the truck,” meaning to pass the truck. These two cars were directly in front of Theriot and he stated that the first one went around the truck and when the second one started to go around “he knocked down the light in the back,” and by light he stated he meant the reflector. His brother-in-law got out of his car and picked the reflector up and “put it in the same place,” which he stated “was a good piece” from the back end of the truck, however, he did not measure the distance. Theriot did not see any lights of any kind burning on the truck or trailer. Theriot proceeded to Erath and then came back along the same highway and the collision had occurred. This witness also stated, in answer to a question by the court, that there was a reflector in the front of the truck. Theriot estimated the distance from the stop light at Delcambre where he passed the plaintiff to Erath as being two to three miles. At most plaintiff must have struck the rear end of the cane truck within four minutes after Theriot passed him if we use the speed of 30 miles per hour traveling a distance of two miles. According to the testimony of the State Trooper the accident occurred approximately one mile east of Erath.

Plaintiff offered the testimony of Mrs. Overton Boudreaux who was riding with her husband in the approaching car which plaintiff stated turned its lights on bright just prior to the collision. Both Mr. and Mrs. Boudreaux testified that they did not see John Suire’s car and yet they state that they were within fifteen or twenty feet of the front end of the truck at the time the plaintiff collided with the rear end. This estimate is evidently in error and impossible, else John Suire would never have been able to safely pass plaintiff’s automobile and the truck, and even if it had been a little further and he had been able to squeeze by, it would seem that he would certainly have mentioned the extreme closeness and narrow escape from a collision with Boudreaux’ approaching automobile. Furthermore, Boudreaux testified that there was a reflector in front of the truck about 15 feet, and John Suire stated that he did not see a reflector at the rear of the truck, which is correct as the rear reflector was found knocked down after the collision, and John Suire evidently did not turn back in front of the truck until after he had passed the reflector or he would have knocked it down.

The Boudreauxs further stated that they were almost on the Winter’s truck before they saw it, and they saw a car approaching which was the plaintiff’s, “at a moderate speed, 30 or 35 at the most,” but Mrs. Bou-dreaux did not recall whether the lights on plaintiff’s approaching car were on bright or dim. Mr. Boudreaux stated he thought that they were on dim and he stated, “No I didn’t see him dim; they were on dim,” but he did not remember whether his lights were on dim or bright. With regard to the parked truck, they stated that it was in the north lane of traffic on the pavement and they saw a reflector about 15 feet in front of the truck which they noticed at approximately 35 or 40 feet, and they saw one in the back that had been knocked down which was after the collision, and there were no lights burning on the truck or the trailer when he was approaching. Mr. Bou-dreaux testified that one car passed around the Plaintiff’s car and the truck at the time of the collision and that there was not a car within 50 yards at that time.

The State Trooper David testified that he came to the scene of the wreck shortly after it happened on Louisiana Highway 25 about one mile east of Erath and found the truck parked on the right lane of the highway facing west, and that the front lights were burning but none were burning on the rear. “The rail lights were demolished at the time of the accident. Whether he had one .on or not burning at the time of the accident, I can’t testify to that.” This Trooper noticed a reflector to the rear end of the truck that had been hit and “was close to the truck, all tore and demolished.” He also testified that he noticed a reflector in front of the truck and he. caused to be displayed flares at the front and fear at approximately 100 feet. The trooper stat-. ed that the type of reflector that he saw in' front and to the rear of the truck were the kind approved by the State Police and. it was shown that they were approximately four inches in diameter. This trooper was asked if he remembered specifically what lights he saw burning and he' testified:

“A. That was the headlights; the front lights of the truck.
“Q. The headlights were on? A. Yes, sir; as far as clearance lights, they didn’t have none.
“Q. They didn’t have any on the trailer? A. No, and the tail lights was totally demolished.
"Q. When you got there the headlights were burning, the tail light was demolished, and there were no clearance lights ? A. That’s right, sir.”

The Trooper testified positively that the front reflector had been placed approximately 100 feet from the truck. Along this line he testified:

“Q. Do you remember whether those were put even with the reflector that had been previously put there or closer to the truck or farther out?
A. That is one tiling I can’t verify, but I made them put it apparently one hundred (100) feet ahead of the truck, which was that front reflector'; it was in front of the truck, which was displayed apparently one hundred (100) feet ahead of the truck, and the one in the rear — at the time I had it displayed they had no reflector there because it had been busted, and I had it put apparently one hundred (100) feet on the rear.”

We are of the opinion that plaintiff’s testimony precludes his recovery as it is definitely shown by his witnesses that there was nothing extraordinary about the weather on the night of the accident, in fact, he alleged and it is shown by the testimony that' it was a dark, clear night. It is further ’Shown that three cars safely' passed this parked truck just a few minutes before the plaintiff collided with the rear end without ever seeing it. It is also shown that there was a reflector according to the State Trooper approximately 100 feet in front of this truck and a demolished reflector close to the rear end and which it is safe to assume was struck by the plaintiff. There was a reflector to the rear of the truck as testified to by the plaintiff’s witness, Theriot, and it was knocked down by. the car just in front of him when it turned out to pass the truck, and his uncle got out and stood the reflector up, showing that it was not damaged to any extent, at that time. The Boudreaux testimony insofar as the reflector being 15 feet in front of the truck is discredited by the State Trooper and, further, their testimony that no one came around the truck at the time of the collision or just subsequent to it is discredited by that of John Suire. It is our belief from all the testimony that the Boudreauxs were much farther from the parked truck at the time of the collision then they have testified.

Defendant offered the testimony of Reno Dugas who stated that he approached the parked Winter’s truck and saw a reflector in front of it as well as the parking lights burning on the truck, and after passing the truck he also saw the reflector in the back' but did not remember seeing any reflector on the side. It appears that this witness had given a statement to counsel for plaintiff that he did not remember whether there were lights burning on the truck and he admitted that he could have been mixed up in that he also saw the other cane truck which had been run into on the same evening.. This witness really thought that the lights were burning on defendant’s truck. He also gave a statement to counsel for defendant in which he stated that he def.-’ initely saw three reflectors but did not re-' member if his “parking lights were burning.” On the trial he said, “About them three reflectors, I don’t remember that middle one.”

Joseph Guidry, another witness on behalf of the defendant, stated that on that evening he was hauling cane and had gone to carry “another fellow” that had a flat tire, and on his way back he picked up the defendant Winters who flagged him down near his parked truck, and at that time this witness stated that the tail lights on the Winter’s truck were burning and he saw a reflector on the left hand side and in the back of the truck. He took Winters to Abbeville to the sugar mill to get a tire to replace the one that had blown out on the right hand side of his truck, and when they got back the accident had happened. It was this witness’ testimony as well as that of defendant Winters that it was impossible to drive a loaded cane truck such as his off on the shoulder of the road when one of the tires was down as it would turn over. This witness’ testimony was that he could see the Winters truck half a mile and he also testified that he had three lights burning on the left hand side of the trailer and one on the right and one tail light, and his parking lights which consisted of three lights on top of the cab. He stated that these lights were burning when he got back with Winters. In this he is mistaken as it is shown by other testimony that the tail lights were demolished. This witness seemed to be leaning in his testimony toward the defendant, just as the Boudreauxs seemed to be leaning toward the plaintiff. He did place the reflectors approximately 100 feet to the front and rear of the truck.

The defendant Winters testified that he hauled cane from the defendant Norris’ derrick, and it is shown that other persons brought cane to this derrick and that on the night of the accident no one could testify whose cane Winters was hauling; that his arrangement was to haul the cane for 75‡ a ton to either the mill at Erath or Abbe-ville; that on the night in question a tire blew out and he had to leave his truck parked on the highway. He stated that he left his parking lights and his tail light burning as well as his clearance lights on the left hand side, and that immediately after the wreck he put one reflector in the center to the left of the truck, one in front and one in the back at a distance of about 30 or 40 steps. This witness stated that when he got back the lights were burning and the reflectors were still there. Of course, he is mistaken in this testimony as .the tail light was demolished and there were no clearance lights burning after the collision according to the State Trooper.

The only facts which were proven that could bring the plaintiff under the exception to the general rule were that this cane truck was so constructed and so covered with dirt and mud as to render it almost invisible, and the fact that the plaintiff testified that the approaching Boudreaux automobile turned its lights on bright just before the collision. It must be remembered, however, that the collision did not take place after the plaintiff passed the Boudreaux automobile but before the Boudreaux automobile ever got to the parked truck and it was a sufficient distance that had plaintiff seen the truck he could have gone around it and would not have collided with the approaching Boudreaux car, as John Suire, who was immediately following the plaintiff, swerved and safely passed the plaintiff’s automobile and the truck. Were we to accept only plaintiff’s testimony we believe he is guilty of contributory negligence. He and the Boudreaux car were only approximately 100 feet apart, when he dimmed his lights and Boudreaux switched to bright, and it is well to remember that plaintiff at that time, before any changing of lights had taken place, was traveling with his bright lights on and the Boudreaux car was traveling with the dimmers on. It is to be remembered that in between these two oncoming automobiles was this parked cane truck and trailer. It is to be remembered 'further that prior to the switching of the lights, plaintiff does not complain of being blinded by the oncoming lights of the Boudreaux vehicle. That being the case, we are at a loss to understand why plaintiff could not have seen the parked truck and trailer prior to this time. If he had been looking, and he says he had his lights on bright and the Boudreaux vehicle lights were on dim, there is no reason for his not being able to see the parked vehicle in his lane of travel because he was not blinded at that time. It was only after they were approximately 100 feet apart, with the parked truck in between them, that the plaintiff switched his lights from bright to dim and he says that the Boudreaux vehicle then switched their lights from dim to bright, which then blinded him. The plaintiff should have seen this parked loaded cane truck which is a monster in itself just in front of him long before the switching of the lights took place. Plaintiff’s negligence had been contributed a long time before the switching of the lights by not observing the big cane truck parked in front of him, because, when the switching of lights took place and he became blinded so he claims, and we are accepting his testimony as true, it was not the blinding of the lights that caused the accident but it was the joint negligence of the defendant in parking as he did, accepting that as proven, and the negligence of the plaintiff in not observing the cane truck or rear reflector prior to the time Boudreaux switched his lights to bright. This record reflects no extra-ordinary circumstances which would cause the plaintiff to be unable to see this parked vehicle. The road was straight, the atmospheric condition was perfect, there was a reflector of legal size to the rear of the parked cane truck which had been observed by three motorists who stopped to let approaching traffic pass the parked truck. Plaintiff was not keeping a proper lookout.

For the above and foregoing reasons, the judgment of the District Court is reversed and plaintiff’s suit dismissed at his cost.

TATE, Judge

(dissenting).

I must respectfully dissent from the' majority’s reversal of the District Court judgment.

Defendant’s driver left a large, dust-covered cane truck parked unattended on a heavily-travelled main highway. He failed to comply with his mandatory statutory duties to place reflectors 100 feet to the front and rear of the truck, and third reflector to the side thereof, and to remain to protect oncoming traffic. Almost all the testimony in the record concurs that due to the indistinguishable coloring of the unlighted truck and the inadequate warnings the truck was invisible in the night ahead to oncoming traffic from either direction until said traffic was within a few feet of the truck.

In addition, the plaintiff herein was blinded by oncoming traffic; which testimony of plaintiff is supported by the testimony of the oncoming motorist and his wife, and by the testimony of the driver of a car which passed plaintiff immediately before the accident.

The decision of the majority herein is clearly contrary to Dodge v. Bituminous Casualty Corp., 214 La. 1031, 39 So.2d 720, and I cannot reconcile it with the uniform jurisprudence of this Court interpreting the doctrine first enunciated by Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377: See, e. g., Buford v. Combs, La.App., SO So.2d 469, wherein this Court through the organ of the present decision thoroughly analyzes and summarizes the Gaiennie doctrine; see also Washington Fire & Marine Insurance Co. v. Travelers Indemnity Co., La.App., 86 So.2d 743, rendered at our last decision day; Gautreaux v. Oregon, La.App., 84 So.2d 632; and cases cited in these opinions.

The majority overlooks that the proximate cause of this accident is not any failure of the plaintiff to observe the truck, indistinguishable in the dark ahead; it is the failure of defendant’s driver to minimize the extremely hazardous situation created by parking this truck on the travelled portion of the highway, by complying with his statutory duties as set forth at LSA-R.S. 32:241 and 32:441.

The latter statutory provision requires that trucks such as the present must be equipped with “three portable flares, reflectors, or other similar devices * * * plainly visible for a distance of five hundred feet.”

This latter statute further mandatorily requires as to trucks which stop on the highway during the hours of darkness that:

“The operator * * * shall immediately * * * place one such warning device at the side of his vehi cle just inside the black line marking the center of paved highways and near the center of dirt or gravelled highways, and place one such device approximately one hundred feet to the front and another one hundred feet to the rear of his vehicle, and shall maintain these devices in this position during the time the vehicle remains parked.” (Italics mine.)

This truck was left parked on the trav-elled portion of the highway in violation of LSA-R.S. 32:241, subd. A, rather than on the wide level shoulders which the evidence shows were available for the purpose, because one of the four rear tires was flat and presumably the driver considered it “disabled”, so as to be within the exception created by LSA-R.S. 32:241, subd. B, which however provides:

“B. The provisions of this rule [i. e., requiring removal of the stopped truck from the travelled portion of the highway] shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.” (Italics mine.)

Instead of protecting traffic, defendant’s driver set out two flares fifteen feet to the front and rear of this truck, left no lights whatsoever on the truck, and departed with a passing friend to pick up another tire. The truck was left unattended and without warning on this main highway for at .least thirty minutes, during which time the present accident occurred. This was negligence of the grossest kind.

Plaintiff was approaching at a speed of 30-35 mph, was blinded by the oncoming car of Overton Boudreaux, and crashed into the rear of the inadequately lighted and indistinguishable truck left with such gross negligence on this main highway.

The large size of this truck aggravates defendant’s negligence by increasing the hazard created. We seem to hold that because of this size the oncoming motorist should have seen the truck. Certainly, in daylight it should have been easy to see this truck; certainly an appellate court may, sitting in the peace and calm of a library surrounded by books, think of good reasons why this truck should have been seen.

The fact remains, to which all witnesses testify, that the truck could not be readily observed on the highway ahead to ordinarily prudent motorists, because of the dust-coloring, lack of warning, and perhaps the high trailer-bed (under which the beams of traffic approaching from the rear might shine). Appellate courts are not supposed to supply a standard of care of imaginary ideal motorists; the standard the law gives us. to apply is that of a reasonably prudent motorist under the facts and circumstances surrounding the accident in question.

If the facts found by the majority differ than those set forth in this dissenting opinion, the record should not be so construed in view of the following evidence, accepted by the District Court and virtually uncon-tradicted in the record:

a. Truck left without lights:

Passing motorists Stevan Theriot, John J. Suire, Mr. and Mrs. Overton Boudreaux, as well as plaintiff, testified to this' fact; Mrs. Boudreaux testified that she saw some one turn the front lights on after the accident. State Trooper Ignace David, who arrived after the accident, found the front lights only on; the rear lights being demolished. '

Against this overwhelming proof, the only contrary evidence is defendant’s -driver Winters, and his friend, Joseph Guidry, who picked him up to go get a tire. These colored truckdrivers testified that the front, rear, side and top lights of this truck were lit, before and after the accident, and that it was visible from one-half mile away; although it is uncontradicted that there were no clearance (side and top) lights, and that the rear lights could not have been lit after the accident since they were demolished ! On the face of the record, the District Court properly did riot givel mucli credence to their testimony. .

The only other witness introduced by defendant was Mr. Reno Dugas, a wrecker-man, who frankly admitted that when he testified on direct examination that a truck’s lights were on, he referred to just one of the two trucks stopped on the highway that night, and that “I could have had them trucks mixed, but know one of them had the park lights on”' (Tr-134) and “No, to tell the truth, it could have been the second one” (Tr-136), that is the truck other than the one involved in the present accident.

b.Truck left with flares just 15 feet in front and rear;

Oncoming motorists Mr. and Mrs. Over-ton Boudreaux testify positively to this. Stevan Theriot, who was proceeding from same direction as plaintiff and passed a little prior to the accident, testified that the rear reflector was knocked down by the car in front of him, so he replaced it. As to the distance this rear reflector was behind the truck, he replied it was “a good piece”, but on amplification in the following question, indicates it was between the first and the second car ahead stopped immediately 'behind the parked truck — that is, not much more than a car length behind the parked truck, or about 15 feet behind same.

His entire testimony concerning this is as follows, Tr-104:

“Q. How far was the reflector from the back end of the truck? — A. I didn’t measure it; it was a good piece. I don’t know, I didn’t measure it.
“Q. Was it even with the first car or the second car or any car? — A. They had space between the cars, but it was between me and the second car— in front of the second car. When he started he passed in between and knocked it down.”

This positive testimony is contradicted nowhere in the record, except by the discredited testimony of defendant’s driver and his friend, not believed by the District Court. As noted, Mr. Dugas admitted that the front reflector he saw may have been situated by the other truck not involved in the accident.

State Trooper David who came 30-min-utes after the accident found the demolished rear reflector right by the rear end of the truck; he found the front reflector 100 feet in front of the truck, but of course it was probably so placed after the accident, just as the truck lights were turned on after-wards, in view of the positive uncontradict-ed testimony of the front-approaching Boudreaux’s previously referred to.

c. Truck dust-covered and difficult to discern in night:

All motorists who testified agreed that the truck in question was almost impossible to discern in the roadway ahead until the motorist was within a few feet thereof. The State Trooper also testified that the truck was dust or dirt-covered.

This is uncontradicted in the record, except perhaps by the discredited testimony of defendant’s driver and his friend, disbelieved by the District Court.

d. Plaintiff Suire blinded by lights of oncoming Boudreaux car:

Plaintiff himself testified, Tr-68:

“Q. Before you met this automobile. Now, Mr. Suire, what was the effect on your vision when this other automobile suddenly placed his headlights on bright? — A. They suddenly blinded me I suppose. I couldn’t see.
“Q. Were you blinded for a long interval of time before you don’t remember anything ? [i. e., before he hit the truck, following which plaintiff has an amnesia] — A. I guess it was a few seconds I suppose.”

See also his testimony at Tr-66, and Tr-75.

Plaintiff was corroborated by the testimony of motorist John 'Suire, testifying by written interrogatory in Michigan who replied under oath to Interrogatories 33, 34, and 35 that the Boudreaux’ lights were “fairly bright”, “strong”, and made it “difficult to see.” (Tr-48.)

With the utmost respect for my conscientious and sincere brethren, I can only feel that they have reached a result contrary to that reached by the District Court in response to the eloquent and able oral argument of counsel for appellants that the doctrine of the Gaiennie and Dodge cases should be restricted or limited.

With the utmost respect for the views of my brethren, I feel that it is not our province as an inferior appellate court to do other than to follow the jurisprudence as settled by our Supreme Court. And I may add that I am thoroughly in accord with the Gaiennie and Dodge jurisprudence as the practical and enlightened response to the higher safe-driving speeds, the greater volume of traffic, and the necessities of modern traffic at night, in view of which a greater burden is placed on those who dangerously obstruct the highways with actual or presumed knowledge that even reasonably prudent motorists under present-day circumstances may be unable to avoid colliding with such obstructions; just as reasonably prudent motorists are entitled to expect that no indistinguishable and unlighted obstruction will suddenly rear up in their path on a much-travelled main highway.

For these reasons, I must respectfully dissent.

Rehearing denied;

TATE, J., dissenting.

      . The argument is advanced that because after the accident, Trooper David found the front reflector 100 feet in front of the truck, rather than 15 feet as testified to by the Boudreaux’ as its location before the accident, that therefore the testimony of the latter is weakened or to be disbelieved. The “courts will not impute perjury to apparently credible witnesses,” Cockrell v. Penrod Drilling Co., 214 Da. 951, 39 So.2d 429, at page 432, and particularly not on the basis of illogical deductions drawn from an appellate record and contrary to the trial court’s accept-anee of the testimony of said witnesses as credible.


source: Caselaw Access Project

author: ' LOTTINGER, Judge. TA.TE, Judge

license: Public Domain

text:
    John BAKER et al. v. The TEXAS COMPANY.
    No. 4203.
    Court of Appeal of Louisiana. First Circuit.
    May 17, 1956.
    Rehearing Denied June 29, 1956.

      D. Douglas Howard, New Orleans, Helm, Simon & Gordy, -New Iberia, for appellánt.
    Jacque B. Pucheu, Eunice, for- appellee.
   ' LOTTINGER, Judge.

The trial judge, in this matter, .in his written reasons for judgment, • carefully outlined the pleadings and facts as presented in the court [below. His reasons are as follows:

“This is a jactitation suit filed September 10, 1954, in which John Baker, one of the Plaintiffs, being the owner and in possession of approximately eight hundred 'and twenty-two (822) acres of land subject to a mineral reservation of one-half (V2) of the minerals in and under the land, and the owners of said mineral reservation, the other Plaintiffs, aver that the Defendant is slandering their title to the oil and gas rights and other mineral rights in the land. Plaintiff John Baker acquired the property from the other Plaintiffs December 17, 1951, spbject to a mineral reservation by these other Plaintiffs of one-half (%) of the oil, gas and other minerals in and under the land.
“All of the plaintiffs, except.John Baker, acquired the land without.any mineral reservations on September 17, 1951, from Walter E. Kellner, Liquidator of Glaser and Lewis, Inc., successors in title to the land to George D. Segrera, who acquired the land from the St. Martin Land Company on April 22, 1938. In the sale by St. Martin- Land Company to George D. Segrera dated April 22, 1938, the St. Martin Land Company reserved unto itself all of the oil, gas and other minerals in, under and to be produced frótn the land.
“The claim of the Defendant to the ¡mineral rights in said land arises from what purports to be a mineral deed executed by St. Martin Land Company to The Texas Company of Texas on March 29, 1919 (D-1), an agreement between the same parties dated November 26, 1929, supplementing said purported mineral deed (D-2), and transfer by The Texas Company of Texas to the Defendant The Texas Company of Delaware dated April 19, 1927 (D-3). All of these documents cover a large body of land estimated to contain approximately thirty-eight thousand (38,000) acres including the land involved in this suit.
“In their petition Plaintiffs pray that there be Judgment quieting them in their possession of the property in contest and ordering the- Defendant to disclaim any title whatsoever thereto or to assert any rights, title or claim to the property within sixty (60) days from the rendition of Judgment and in default of such suit being instituted within the time fixed that the Defendant be thereafter forever barred from setting up any claims, rights or privileges to or against' the property.
“To the suit Défendant filed an exception of lack of sufficient possession on the part- of Plaintiffs of the land and mineral rights thereto and failure of Plaintiffs to allége sufficient posses^ sion thereof to institute and prosecute the suit.
“In its effort to show that Plaintiffs were not in possession of the mineral rights to the land and to establish such possession in itself, Defendant offered in evidence the documents above referred to by which it acquired mineral rights from the St. Martin Land Company to the land in controversy, other documents to prove that it had conducted drilling operations and actually produced oil and gas from lands other than that involved in this suit but included in the mineral servitude from the St. Martin Land Company. Defendant also offered the testimony of Mr. George Mott to prove that all of the land included in the mineral servitude from the St. Martin Land Company to The Texas Company of Texas is contiguous. All of which was an attempt on the part of the Defendant to show that the mineral servitude as to all of the land covered by the deed from the St. Martin Land Company to the Texas Company was still in full force and effect and that accordingly, Defendant and not Plaintiffs had possession of the mineral rights appertaining to the land in contest. All of this evidence was allowed over the objection of counsel for Plaintiff but subject to and burdened with the objection.
“After a careful consideration of the decisions of the Supreme Court of this State in the cases of International Paper Co. v. Louisiana Central Lumber Company [202 La. 621], 12 So.2d 659 and Ware v. Ba[u]cum [221 La. 259], 59 So.2d 182, I find it unnecessary to consider this evidence. According to the decision in the Ware v. Ba[u]cum case the Plaintiffs in the instant suit have made a prima facie showing that the adverse claim of the defendant for the mineral right to the land has been extinguished by the prescription of ten (10) years liberandi causa. The Defendant in this case is not, as in the case of International Paper Company v. Louisiana Central Company actually and adversely possessing the mineral rights to the land. In the International Paper Company case the Defendant had spent a very considerable amount of money, perhaps millions of dollars, drilling sixty-three (63) producing wells. These wells had actually been drilled on the land involved in the suit and not on adjoining lands as in the instant case.
“In the instant case it was conceded by the Defendant that the Plaintiff John Baker is in actual physical possession of the land in question and that no oil wells have been drilled on this land for a period in excess of ten years prior to the date of the filing of this suit.
“This being a jactitation suit the Court cannot go into the question of the title or ownership of the mineral rights appertaining to the land and cannot, therefore, decide whether the plea of prescription made by the Plaintiffs is or is not well founded. The Defendant may rebut the presumption of the loss of its servitude by proving that the accruing prescription was interrupted or suspended during the ten (10) year period. But the proof can be made only in the revindication action, if and when timely brought, inasmuch as Defendant’s title depends entirely on an interruption or suspension of prescription (the servitude appearing on its face to have prescribed) and no issue of title can be tried in a jactitation action.
“For these reasons let there be judgment in favor of Plaintiff and against the Defendant The Texas Company overruling the exception of lack of sufficient possession to institute and prosecute this action, quieting Plaintiff John Baker in a possession of the property described in Article 1 of Plaintiffs’ petition and ordering the Defendant to disclaim any title whatsoever to the said property or to assert any rights, title or claim to the said property within sixty (60) days from the rendition of this Judgment and in default thereof Defendant be forever barred from setting up any claims, rights or privileges to the said property.”

A reading of the above will reveal that the Lower Court’s opinion was based largely, if not entirely, on the holding of the Supreme Court in the case of Ware v. Baucum, 221 La. 259, 59 So.2d 182. A study of the cited case convinces us that while undoubtedly the conclusion reached by the Court in said case is correct, its holding is not controlling in the case at bar. In the Ware suit, supra, the plaintiff landowners brought an action in jactitation against a mineral owner whose mineral interest was created by an instrutnent executed more than ten years previous to the filing of the suit. The plaintiffs alleged that they were the owners of and in actual possession of the land and that the defendants had slandered their title by recording an affidavit within ten years from the date of the creation of the mineral servitude whereby title to a one-half mineral interest in the land was asserted and by attempting to negotiate, an oil lease on the interest. The defendants filed an exception of no right and no cause of action, which was held as sufficient to raise the issue of possession. They also answered alleging that in 1945 and prior to the accrual of ten years prescription liberandi causa as to the mineral interest, the then surface owner of the land acknowledged the defendants’ ownership of the one-half mineral interest, and, that the plaintiffs could not maintain the jactitation suit because they did not have possession of the mineral interest. The Lower Court overruled the exception of no right or cause of action and held that as more than ten years had elapsed, the presumption was that the servitude was not in existence when the suit was filed and that the plaintiffs had, therefore, made out a prima facie case. A notarial act dated June 18, 1945, and pleaded by the defendants in their answer as having interrupted the running of prescription, was not considered because of the fact that to have done so would have raised the question of title, which is not pertinent in an action in jactitation. While, as stated before, we have no quarrel with the holding in the Ware case, we do not believe that same is controlling here for the obvious reason that in the Ware case, there was nothing to • show that the defendants were in possession of the mineral interest nor were they exercising possession of the minerals by drilling or otherwise at the time suit was filed. As a matter of fact the Ware case involved one tract of land which had never been drilled.

It is settled beyond all doubt that the only question raised by an action in jactitation is that of possession until the suit is converted into a petitory action. As was stated in the case of International Paper Co. v. Louisiana Central Lumber Co., 202 La. 621, 12 So.2d 659, 660 by the late Chief Justice O’Niell and reiterated in Lenard v. Shell Oil Co., 211 La. 265, 29 So.2d 844:

“It is well settled — and not disputed —that a jactitation suit, or an action for slander of title, can be maintained only by one who is in actual possession as owner, and only against one who is not in possession, of the property the title to which is sought to be quieted.” (Italics ours.)

In so far as the possession of such servi-tudes, such as mineral rights, our Supreme Court has definitely laid down the following rule in the same cases of International Paper Co. v. Louisiana Central Lumber Co. and Lenard v. Shell Oil Co. supra as follows:

“Mineral rights and mineral leases are by Act [No,] 205 of 1938 ‘defined and classified as real rights and incorporeal immovable property, and may he asserted, protected and defended in the same manner as may be the ownership or possession of other immovable property by the holder of such rights’. It is declared in article 3432 of the Civil Code that possession of incorporeal property; such as servitudes, is had by the exercise of such rights. See Connell v. Muslow Oil Co., 186 La. 491, 172 So. 763; Allison v. Maroun, 193 La. 286, 190 So. 408; and In re Mt. Forest Fur Farms of America, Inc., 122 F.2d 232, where the United States' Circuit Court of Appeals for the Sixth Circuit reviewed extensively the law of Louisiana recognizing that mineral rights are subject to actual possession, adverse to the possessor of the land itself, by the exercise of such rights.” (Italics ours.)

The Supreme Court of Louisiana in the case of Lenard v. Shell Oil Co. supra [211 La. 265, 29 So.2d 851] likewise laid down the following rule with reference to the possession of the mineral servitude and the possession of the land itself and we quote as follows:

“By the use of the word 'severed we did not intend to say that two estates of corporeal property had been created. A reading of the opinion in its entirety shows that what we intended to say, and did say, is that the error in the judgment appealed from is in the omission to observe that the act creating the mineral servitude made possible two possessions of the property, i. e., the possession of the mineral servitude and the possession of the land itself, and hence that the mineral servitude was subject to possession and was in fact possessed by the owner thereof adversely to the owner of the 30 acres of land.” (Italics ours.)

That being the law in Louisiana we are only called upon to resolve the issue raised by the defendants’ plea of want of sufficient possession. As shown in the trial judge’s reasons for judgment,, the defend-, ant offered in evidence the documents by which it had acquired its alleged mineral rights as well as documents to prove that it had conducted drilling operations and actually had produced oil and gas from lands other than those involved in the suit but contiguous to those lands and includ--ed in the original mineral servitude for the purpose of showing that plaintiffs were not in possession of the mineral rights to the land and to establish such possession in itself. This evidence was held improper <pn the ground that the plaintiffs had made a prima facie showing that defendants’ min-' eral rights had been extinguished by prescription and on the further ground that the defendant was not actually possessing the mineral rights in question. With this reasoning we cannot agree. It is well settled that drilling operations conducted on a part of a large contiguous area by the owner of'a mineral servitude protects their title.to the servitude on the whole tract and establishes the actual possession of said servitude on the whole tract. See Lenard v. Shell Oil Co., 211 La. 265, 29 So.2d 844, and cases therein cited. Unquestionably, in the instant case, the defendant had conducted operations on land contiguous to those involved here, and, this being the case, they were' necessarily in possession, not only of the minerals underlying the lands upon which the drilling was conducted, but also those contiguous tracts such as are herein involved. This being the case, the plaintiffs, as the owners of the fee title to the land itself, cannot be held to have that degree or type of possession required to maintain the action in jactitation and hence the exception of want of possession should have been maintained. See Lenard v. Shell Oil Co., supra, and International Paper Co. v. Louisiana Central Lumber Co., 202 La. 621, 12 So.2d 659.

For the! reasons assigned, the judgment appealed from is reversed and the exception of want .of. possession is maintained and plaintiffs’ suit dismissed at their costs.

Judgment reversed.

TA.TE, Judge

(dissenting).

. I respectfully dissent.

Plaintiffs, owners of an 822-acre tract, filed this jactitation suit alleging that their title was Slandered by a mineral servitude, originally created in 1919 (35 years before suit) and originally including 38,000 acres of land. No drilling or production thereunder had taken place on plaintiffs’ land for more than 10 years before suit.

In my opinion, under these circumstances, the District Court correctly held under Ware v. Baucum, 221 La. 259, 59 So.2d’ 182, that plaintiffs had made out a prima facie case of possession; requiring the defendants to prove title to said servitude in a revendication action brought within a specified time.

The majority relies upon Lenard v. Shell Oil Co., 211 La. 265, 29 So.2d 844, and International Paper Co. v. Louisiana Central Lumber Co., 202 La. 621, 12 So.2d 659, in which in the absence of objection such proof was permitted within the jactitation suit itself.

In these latter two cases, the defendant actually proved that the original mineral servitude had been interrupted by user before expiration so as still to affect the plaintiffs’ property at the time the jactitation suit was filed.

A more serious objection to the majority opinion, however, is its failure to discuss or meet the plaintiffs-landowners’ alternative argument. Conceding arguendo that the evidence as to interruption by user of the servitude before its expiration is admissible, appellees alternatively argue that the defendant has not proved that its 1919 servitude was interrupted by user before expiration or extended, so thaf drilling operations on other portions ,o.f the 38,000-acre tract since 1929 maintained said servitude insofar as plaintiff’s small portion of this vast expanse is concerned.

It is true, as the majority holds, that drilling or production under a mineral servitude constitutes possession not only of the tract in question, but also of all contiguous tracts subject to the same single indivisible servitude. But the majority overlooks that production on a contiguous tract does not constitute possession as to another tract unless they are both subject to the same indivisible servitude, see such cases as Calhoun v. Ardis, 174 La. 420, 141 So. 15, Cox v. Acme Land & Investment Co., Inc., 192 La. 688, 188 So. 742.

‘ Thus in the record before us we ’have proof of the 1919 servitude, which-was éx-tended by a supplemental agreement dated November 26, 1929 (D-2), plus proof of, certain drilling operations from 1929 and production from 1938 on other tracts ;during the'interval to date of suit.

Such drilling and production activities on these other tracts cannot constitute possession as to the tract in question tmless both the other tracts and the present land were subject at the time thereof to the same indivisible servitude. Drilling on my neighbor’s land does not constitute possession of a mineral servitude affecting my land, unless both lands are subject to a single indivisible servitude by virtue of which the said drilling operations are conducted.

Thus drilling on the contiguous tract has actually no legal effect on or relationship to a mineral servitude on the other tract— unless because of an indivisible servitude affecting both tracts.

■ Therefore, before one can determine whether such drilling on a contiguous tract constitutes possession of the mineral servitude affecting another tract, it is necessary to determine first whether the mineral servitude by virtue of which the drilling is done includes both tracts indivisibly subject thereto.

In effect, “possession” and “title” in this situation are identical. One doesn’t “possess” the mineral servitude as to the other tract, unless the latter is indivisibly affected by the servitude under which one is drilling the contiguous tract, i. e., unless the servitude’s “title” extends to both tracts. Production or drilling on the other tract cannot constitute possession of a mineral servitude on the drilled tract unless one has title to a servitude including both tracts.

It seems to me that the majority has put the cart before -the horse when it holds that defendant proved “possession” as to the un-drilled tract' herein, by those drilling operations -on other tracts, when we have failed first to find whether the undrilled tract was actually subject to an indivisible servitude, by virtue of which the drilling operations were -conducted on the allegedly contiguous tracts.

' It is true that back in 1919 all tracts in question w.ere subject to a single mineral' ,, servitude affecting.38;000 ac'fes 'of land.'

But in 1929, by the instrument introduced as D-2, the mineral servitude was extended “for an additional period of five years only * * * unless sooner terminated or further extended as hereinafter provided(Tr. 39.) (Italics mine.) It continued the 1919 agreement specifically “with the following modifications.” (Tr. 39.)

The first important modification was by Clause 2, wherein Defendant agreed to select within 18 months from August 13, 1929, blocks of land not more than 5,000 acres in each block, and to release and convey back to the original landowner (St. Martin Land Company) all mineral interests not retained. (Tr. 39-40.)

There is not one iota of proof in the record that plaintiffs’ 822-acre tract was included within any of the blocks over which defendent retained its servitude. So far as the record shows, plaintiffs’ tract was not within any land over which the servitude was retained by defendant, so that drilling operations on contiguous tracts would have the effect of maintaining defendant’s possession.

I further feel it quite probable that the evidence affirmatively shoAvs the lease expired under its own terms on March 29th, 1934, by the failure of the leaseholder to conduct “continuous drilling operations” thereafter as defined by Clause 4 of said 1929 agreement, although perhaps this effect is avoided by the escape clause shown as 5 (b) thereof. However, the apparent intention and effect of Clause 4 was to create separate servitudes as to each separate 5,000-acre block retained by defendant (rather than the former indivisible servitude affecting all the land leased); and there is no showing that such drilling operations were conducted on any particular 5,000-acre block (whether or not including plaintiffs’ land).

The effect of the majority opinion is to place the burden on the landowner to prove that the servitude created thirty-five years before had terminated; rather than the burden being upon the servitude-holder to prove that this ancient servitude was interrupted by user or otherwise extended so as still to affect tracts other than those upon which drilling or production had actually taken place. As a practical matter, the servitude-holder claiming that drilling or production has taken place somewhere in the 38,000 acres, so as to affect the smaller tracts situated elsewhere, should be required to prove same. If his claim is valid, he is in a much better position to prove such user, than is the owner of small acreages situated elsewhere in the original vast expanse to prove that nowhere in the 38,-000 acres did user take place in time to extend the servitude. With due respect to my learned brethren, I feel that this is an unfair burden to place upon the landowner of these smaller tracts; and (as noted by the District Court) one contrary to law and the prior jurisprudence.

For the above and foregoing reasons, I respectfully dissent from the opinion of my learned brethren herein.

Rehearing denied;

TATE, J., dissenting.


author: REGAN, Judge.

text:
    WASHINGTON FIRE & MARINE INS. CO. et al. v. PHOENIX INDEMNITY COMPANY et al.
    No. 20729.
    Court of Appeal of Louisiana. Orleans.
    June 25, 1956.

      Gamble & Gamble, Harry P. Gamble, III, New Orleans, for plaintiffs-appellants.
    Montgomery, Barnett, Brown, Sessions & Reed, Peter H. Beer, New Orleans, for defendants-appellees.
   REGAN, Judge.

Plaintiff, Edward F. Reed and his sub-rogee insurer, Washington Fire & Marine Insurance Company, instituted this suit against the defendant, Louis E. Jung, Jr., and his liability insurer, Phoenix Indemnity Company, endeavoring to recover the sum of $169.64, representing property damage incurred on February 15, 1955, at about 4:10 p. m., as the result of a collision in the intersection of Vincennes Place and Grape Street, between two automotive vehicles operated respectively by Reed and Jung.

Defendants answered and admitted the occurrence of the accident, but denied liability therefor and, in the alternative, pleaded the contributory negligence of Reed. Defendant, Jung and his subrogee insurer, then reconvened and asserted that they were entitled to recover the sum of $171.73 representing property damage incurred by Jung’s automobile.

' Judgment was rendered dismissing both the main and the reconventional demand. From that judgment only plaintiffs have prosecuted an appeal.

In order to avoid repetitious designation of parties plaintiff and demand we shall hereinafter apply the appellation plaintiff to Reed and defendant to Jung.

Although plaintiff, defendant and a passenger in defendant’s automobile were the only witnesses who related the manner in which the accident occurred, the record reveals, as we have so often observed heretofore, the usual disputations predominant in this type of litigation.

Defendant, who was accompanied by Miss Sarae Mexic, testified that he was driving in Vincennes Place at a speed of twenty-five miles per hour moving in the general direction of St. Charles Avenue and, although nothing obstructed his vision into Grape Street, he failed to observe plaintiff begin to enter the intersection until he was only twenty feet removed therefrom; he then applied his brakes which caused him to “skid” approximately seventeen feet; the right front section-of his car then struck the right rear fender of plaintiff’s vehicle. The collision occurred in the approximate center of the intersection.

Miss Mexic testified that defendant may have been moving at a speed of between twenty-five and thirty miles per hour, otherwise she corroborated defendant’s version of the accident in all of its essential aspects.

Plaintiff testified that he was driving in Grape Street moving from the river towards the lakes; when he reached Vincen-nes Place he stopped and saw defendant’s automobile approximately sixty feet removed from the intersection; despite this fact he drove therein and then “realized” defendant “was coming fast” so he “accelerated” in order to avoid being struck in the “middle.” He further related that the rear of his vehicle was in about the center of the intersection when the right rear fender was struck by the front of defendant’s car.

Defendants’ counsel in oral argument before this court conceded his client’s negligence, therefore, the only question posed for our consideration is whether plaintiff’s negligence was sufficient to bar his recovery herein.

' “When an intersectional collision occurs between two automotive vehicles and the operators thereof charge each other with negligence, there can be no recovery by the litigant who initiates the suit if that party, by the exercise of due diligence and reasonable care, could have avoided the accident.” Transcontinental Ins. Co. v. Toye Bros. Yellow Cab Co., La.App., 55 So.2d 585, 587.

The trial judge was obviously of the opinion that the concurring negligence of both litigants was the proximate cause of the accident and our analysis of the record fails to disclose any legal or factual error in his conclusions.

The defendant, in oral argument before this court, as we said, conceded his negligence. An examination of the record discloses that the plaintiff was likewise negligent in that he was fully cognizant that defendant was approaching the intersection “fast” and when the defendant was sixty feet removed therefrom, plaintiff decided that he could beat the defendant across. He erred in his judgment, hence the collision. Ordinary prudence required that he, under these circumstances, remain in a position of safety until the defendant’s car had cleared the intersection.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

JANVIER, J., absent, takes no part.

      . Speed limit was'twenty miles per hour in this area.


author: THORNAL, Justice.

text:
    Emmett MANSON, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division A.
    May 23, 1956.
    Rehearing Denied July 5, 1956.
    Finch & Mosley, Clearwater, for appellant.
    Richard W. Ervin, Atty. Gen., and Jack A. Sudduth, Asst. Atty. Gen., for appellee.
   THORNAL, Justice.

Appellant Manson seeks reversal of a judgment of conviction entered pursuant to a jury verdict finding him guilty of robbery.

Reversal is sought on the ground that appellant’s motion for a separate trial, made prior to the trial, was denied and that this prevented him from having a fair trial within the requirements of due process of law.

Four men, Adams, Rembert, Williams, and the appellant Manson, were informed against jointly for alleged robbery of the Tides Hotel in Pinellas County some time after 1:00 o’clock a. m. on July 6, 1954. Adams, Rembert and Williams were apprehended shortly after the robbery and that night Rembert and Williams gave sworn statements admitting their guilt and implicating Manson who was an employee of the hotel on duty at the time of the robbery. Adams denied participation in the crime but admitted being an occupant of the automobile used in the hold-up while it was in progress.

Appellant Manson consistently denied that he was implicated in any way in the robbery. He claimed that he was sleeping in the hotel bellhop room during the early morning hours when someone entered the place, knocked him out and tied him securely. He stated that he remained in a semiconscious condition until the hotel manager aroused him shortly after the robbery, at which time he was found securely tied, with blood flowing from his nose. When found, he was on the floor by a chair from which he could have fallen. The other three defendants all testified that they had gone to the hotel for Rembert to borrow money from Manson. Rembert and Williams stated that Manson told them he did not have any money but that they could make some money easily by robbing the place. According to their version, Manson was the “brains” of the scheme and directed them as to how they should go about the act, including binding him for appearance sake.

Prior to the trial, Manson moved for severance on the ground that his defense was antagonistic to that of Rembert and Williams who had confessed and that their confessions were not admissible against him, but would be admissible against them to his injury in the joint trial. The motion was denied and appellant Manson was required to go to trial with the other three jointly. All pleaded innocent.

At the trial, Rembert and Williams, despite their “not guilty” pleas, took the stand and admitted their guilt and again implicated Manson, under oath from the witness stand. Midway of the trial the State granted immunity to Adams and put him on the stand to testify against the others. This he did. He too implicated Manson.

It is now contended by appellant that certain inconsistencies in the testimony of the codefendants substantially discredits them and that the requirement that he be tried jointly with them resulted in the presentation to the jury of certain evidence including the confessions of Rembeid and Williams, as well as other harmful evidence, which resulted in a denial of a fair trial to the appellant. After the verdict, a motion for new trial was presented assigning the same ground and the trial judge denied the motion. Judgment' against appellant was accordingly entered and he was sentenced to fifteen years imprisonment. ’

Although it might be conceded that the trial judge could have found justification for granting the motion for a severance, if in his judgment justice required it, a careful and thorough examination of the record leads us to the conclusion that in denying the motion, he did not abuse the sound judicial discretion allowed him in such matters. Both by statute, Section 918.02, Florida Statutes, F.S.A., and by, prior decisions of this court, a motion for severance is addressed to the discretion, of the trial judge and his order in the exercise of such discretion will not be disturbed in the absence of a showing that a sound judicial discretion has been abused. See Sam-uels v. State, 123 Fla. 280, 166 So. 743. Helpful annotations on the subject of motions for severance will' be found in State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133; People v. Braune, 363 Ill. 551, 2 N.E.2d 839, 104 A.L.R. 1513; Bennett and Holiman v. State, 201 Ark. 237, 144 S.W.2d 476, 131 A.L.R. 908.

The burden rests upon the appellant to show dearly that the trial judge abused his discretion in entering an order of the nature under attack. See King v. State, Fla.1950, 47 So.2d 304. While it is true that the confessions of two of the co-defendants, made out of the presence of appellant, were admitted into evidence, the trial judge carefully instructed the jury that these confessions could not be considered as evidence of guilt of Manson. There were other instances where certain evidence was offered against the codefendants which was inadmissible against Manson and in each instance the trial judge clearly advised the jury that such evidence could not be considered against the appellant. It should not be overlooked that in addition to the confessions, each of the three co-defendants took the witness stand and testified under oath to substantially the same statements that were made in the confessions. Rembert and Williams voluntarily did this and Adams did so under a grant of immunity.

It is, therefore, clear from the record that substantially all of this oral testimony would have been admissible against appellant Manson even if he had been tried separately and the admissible part of it was more than adequate in and of itself to support a conviction, if believed by the jury. While there were some conflicts in the stories told by the various defendants, the court instructed the'jury properly on its responsibility to reconcile such conflicts if possible and to evaluate the testimony in the light of the conflicts. The jury was also instructed as to the weight to be given the testimony of alleged -accomplices and that such should be considered with great care and caution.

The trial judge had a further opportunity to consider the over-all propriety of the joint trial when he considered the motion 'for á new trial. Again, in the exercise of his judicial discretion, he concluded that no error had been committed and evidently in his mind appellant had received a fair trial.

Our study of the record leads us to the conclusion that the requirements of due process were observed, that there was no abuse of the sound judicial discretion granted to the trial judge in his denial of the motion for a severance, that by his instructions' to the jury during the trial and at the close of all the evidence, he adequately protected the rights of the appellant and that, in the ultimate, the jury had a right to believe the appellant on the one hand, or his co-defendants on the other. They chose to .believe the latter. There was proper evi-dentiary justification for their conclusion and it is not now within our province to hold that they were wrong in the light of the record.

The judgment appealed from is—

Affirmed.

DREW, C. J., and TERRELL and HOBSON, JJ., concur.


text:
    STATE FIRE & CASUALTY COMPANY, a Florida corporation, and Clifton Ward Bowers, Appellants, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    May 30, 1956.
    Rehearing Denied July 5, 1956.
    Franks & Gordon, Miami, for appellants.
    Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., and William A. Hallowes, III, Jacksonville, for ap-pellee.
   THORNAL, Justice.

Appellant State Fire & Casualty Company seeks reversal of a final judgment of the Circuit Court entered in favor of the State of Florida in an appearance bond forfeiture proceeding under Section 903.26 et seq., Florida Statutes, F.S.A.

Although numerous questions are presented, it appears to us that the sole issue to be determined is whether the bond itself or the forfeiture proceeding was fatally defective on jurisdictional grounds so as to justify an assault on the final judgment against the surety by motion to vacate filed more than 25 days after entry of the judgment, despite the fact that Section 903.30, Florida Statutes, F.S.A., requires that such a motion be filed within 25 days of the entry of the judgment.

On February 2, 1954, appellant State Fire & Casualty Company, as surety, entered into an appearance bond with one Bowers, as principal. The bond was filed in the Criminal Court of Record of Duval County, conditioned upon the appearance of the accused Bowers, before said court on February 24, 1954, to answer a charge of “assault to rob”. A copy of the information does not appear in the record. Bowers failed to appear on the date set, the record was duly certified to the Circuit Court, and on July 22, 1954, the Circuit Judge entered a judgment on the bond against the appellant Casualty Company and the principal Bowers. On November 19, 1954, the surety filed its motion to vacate the judgment on the bond. This motion was denied by order of the Circuit Judge filed February 7, 1955. Notice of appeal was entered April 5, 1955.

Appellant Casualty Company contends that the bond was fatally defective in that it was conditioned upon the appearance of the accused to answer a charge of “assault to rob” and that there is no such crime under the law of this state. The appellee contends that the bond was not fatally defective.

Under Section 903.30, Florida Statutes, F.S.A., an application to set aside or modify the judgment entered in a bail bond forfeiture proceeding shall be made within 25 days from" the entry of the judgment. In the matter before us the application to set aside the judgment was not made until nearly four months after the judgment was entered. Under such circumstances the application itself was filed too late to merit, the consideration of the trial judge in the absence of a showing that the bond or the forfeiture proceeding was fatally defective on jurisdictional grounds. State v. Maxie, Fla.1953, 66 So.2d 670.

The effect of our prior decisions is that a motion to vacate or modify the final judgment in a bond forfeiture proceeding must be filed within 25 days of the entry of the judgment, unless the proceeding is defective on some jurisdictional ground. If the alleged defect in the bond in the instant case was not jurisdictional, then the motion to vacate was filed too late to be considered. We have held that the offense charged must be stated in the bond. State for the Use and Benefit of Dade County v. All Florida. Surety Co., Fla.1952, 59 So.2d 849. This does not mean that it is necessary that the offense be described in technical detail. It is sufficient if the language used to describe the offense in the bond is adequate to identify with reasonable certainty the charge before the court as to which the surety has contracted to insure the principal’s appearance to answer before a certain court at a time certain. See Section 903.12, Florida Statutes, F.S.A., as to condition of such bonds. As between the State and the surety, the bond is a contract and must be sufficiently definite and complete in its terms to be a contract, but not more so.

Insofar as an appearance bond is concerned, the offense is adequately described if it is stated in general terms. West v. State, 75 Fla. 342, 78 So. 275. The description of the offense in the bond before us was adequate to identify the general nature of the charge against the principal and was, therefore, adequate to require the surety to respond to its obligations under the bond. The proceeding would have been good against this ground of attack even if the motion to vacate had been filed within the time required by the statute.

■The appellant Casualty Company raised other questions by its motion to vacate and. on this appeal, but it conceded by its counsel in the oral argument of this case that the other objections have been disposed of adversely to the position of the appellant by our opinion in Capitol Indemnity Insurance Company v. State, Fla. 1956, 86 So.2d 156. We agree with counsel.

This leads to the conclusion that the bond was not defective on jurisdictional grounds and therefore the motion to vacate the judgment or forfeiture which was filed nearly four months after the judgment was entered was filed too late to entitle it to consideration by the trial judge.

Finding no error in the judgment of the lower court, it is therefore

Affirmed.

DREW, C. J., HOBSON, J., and ANDERSON, Associate Justice, concur.


author: THOMAS, Justice.

text:
    The MIAMI HERALD PUBLISHING COMPANY, a corporation, Appellant, v. Mrs. Mary KENDALL, a widow, Appellee.
    Supreme Court of Florida. Special Division B.
    March 7, 1956.
    Rehearing Denied June 7, 1956.
    Dixon, Dejarnette, Bradford & Williams and H. Reid Dejarnette, Miami, for appellant.
    Edward E. Fleming and Nichols, Gaither, Green, Frates & Beckham, Miami, for ap-pellee.
   THOMAS, Justice.

The appellee was awarded a verdict in her action against the appellant for injuries she received when she was struck by a motorcycle operated by Wayne Molesworth who was, at the time, delivering the morning issue of the Miami Herald.

There is no dispute about the negligence of Molesworth; in fact, it is conceded that he was at fault and that the appellee was injured as a result of his wrongdoing.

The question here for decision is the status of Molesworth at the time of the mishap. The appellant contends he was an independent. contractor; the appellee insists he was an employee of the appellant and that appellant is therefore liable for the injury caused her.

For nearly twenty years newsboys have delivered the Miami Herald under a contract identical with, or similar to, the one involved in this litigation which contains the provision, among others, that “the NEWSDEALER is a separate, independent contractor and not subject to the exercise of any control by .the PUBLISHER over his method of distributing or otherwise handling the delivery of said newspaper within his territory other than as expressly set forth in this contract * * (Italics supplied.)

The contract between the appellant ajjd Molesworth carried the provisions that tffe appellant would furnish Molesworth, at a stipulated price, as many copies of daily and Sunday editions as he ordered, would supply him with the names and .addresses of all persons wishing the newspaper to be delivered to them in the territory assigned to Molesworth, would credit the carrier for shortages of papers, and would credit Molesworth “for subscriptions paid in advance * *

The appellant asserts that the facts in the instant case so closely resemble those with which we dealt in Florida Publishing Co. v. Lourcey, 141 Fla. 767, 193 So. 847, that the present controversy may be determined in its favor on authority of that decision. The appellant also insists that the pivotal question is one of law notwithstanding the circuit judge’s action in submitting the issue of Molesworth’s status to the jury.

The appellant reminds us of a familiar criterion by which it may usually be determined whether one performing services is an independent contractor or employee, that is, roughly, if the one securing the services controls the means 'by which the task is accomplished, the one performing the service is an employee, if not, he is an independent contractor. The contract, says the appellant,. by its very terms made the newscarrier an independent contractor, and any control exercised by appellant was directed to the result- — -not the manner of performance.

Before turning to the appellee’s position, it seems logical to quote from the opinion in Florida Publishing Co. v. Lour-oey, supra, the part appellant quoted in its brief because the language we will italicize brings into focus the issue in this appeal:

“The contract in terms provides that Seig ‘shall at all times occupy the position of an independent contractor and control all ways, means, method of conveyance, and distribution relating to the proper performance and completion of the agreement. The corporation looks only to the party of the third part and said carrier to obtain the desired results as herein set out’.
“These provisions were ample to make Seig an independent contractor if they were not to all intents and purposes vitiated by other provisions of the contract or the practice of the parties under it. * * *
“The parts of the contract relied on to deprive it of its independent carrier relation are the provisions with reference to its termination, promoting the circulation of the corporation’s newspapers, the free distribution of sample copies and the retention of subscription lists from the carrier including the practice of the carrier in the performance of these provisions.
* * * * . * *
“We find nothing in any of these requirements or the practice under them to deprive the contract of its independent character. It was in every respect lawful and normally without danger to others and Seig was subject to the will of the corporation only as to results of his work and he was permitted to perform it according to his own methods. * * * ” (Italics supplied.)

The appellee contends that there was abundant evidence that the manner of the performance of Molesworth’s services supported the conclusion that he was under the control of the appellant to such extent as to be an employee. In Sec. 220, Restatement of the Law of Agency, recognized in Margarían v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858, the important factors bearing on the subject are set forth. So the question, from appellee’s standpoint, is whether or not the record supports the jury’s finding that the newsboy was an employee because of the “practice of the parties” under the contract regardless of the caption and language of the instrument.

We have detailed the provisions of the contract with reference to the obligations of the publisher. We now condense the contents of the contract defining the obligations of the newscarrier. He was to furnish the names of new subscribers, to pay to the appellant within a certain time money collected, to present within 48 hours claims for shortages in papers, to call attention to the appellant within six days to errors in statements, to handle The Miami Herald exclusively, to keep in confidence the names of subscribers, to select a substitute in the event he was unable to make his deliveries and be “responsible” for the substitute, to bear all costs of enforcing the contract, to give bond for his faithful performance of the agreement, to acquaint any successor with the route and list of subscribers, to secure delivery of papers in good condition, and to undertake to increase the number of subscribers.

Either party could terminate the contract without cause on fifteen days’ notice and the appellant could terminate it for cause without notice.

Our study of the contents of the contract, and particularly the part we have italicized, leads us to the belief that the instrument was intended 'by both parties to make Molesworth an independent contractor and we frankly say that we have this view not only because of the express conditions we have abridged but also because of the specific mention of an element we consider important, if not essential, that is, the method Molesworth was to employ in carrying the papers to the subscribers once he had received them from appellant. Not only in the contract but in the practical operation under it, the circumstances of which we will presently describe, it was left entirely to Molesworth to select the conveyance which he would use to transport the papers from the point' of origin to the subscribers’ front porches.

We turn now to see, from the testimony favorable to the appellee’s contention, the nature of the services actually performed and the supervision the appellant exercised over the manner in which its newspapers reached the subscribers through Moles-worth or, as appellee puts it, the supervision of the means by which Molesworth performed his work. The newsboy began his work at 4:30 in the morning by getting the papers and folding them. He then started on his route and at 6:30 he finished. If Molesworth overslept, the appellant’s manager would go to his home and rout him out of bed. The newsboy was required to deliver the papers in an “unwrinkled condition” and to accomplish this could fold the papers “in threes or fours.” Although nobody described to him the exact way to fold the papers, he was evidently told that he could not fold them in ‘biscuits.’ The agent of the appellant apparently “rode herd” on the newsboys to see that deliveries were made to the subscribers and “that everything was. going all right.”

It was the practice for complaints about the service to be made either to the appellant or the newsboy. If a subscriber did not receive his paper or had got one that was wet, the representative would see that the subscriber received a good paper and Molesworth would be fined ten cents. For each such improper delivery the carrier would get a yellow slip and if ten yellow slips, representing as many complaints,, should be issued, the contract could be terminated. In. case-of a serious complaint, the newspaper’s representative would take-the newsboy to the customer’s home for a conference.

The appellant fixed the retail price of the paper. If payments for subscriptions were received in advance, the payment could be made either to the appellant or to Molesworth, but Molesworth was obligated tó pay the appellant for the papers he received whether he collected from the subscribers or not. The newsboy was furnished with customers’ cards and a ring on which to keep them. Weekly meetings were held by the appellant’s representative and the newsboys for the general purpose of improving the business of appellant as well as the carriers.

■ We do not find that the extra-contractual activities of the contracting parties neutralized the provisions of the agreement which to us were obviously intended to make Molesworth an independent contractor.

Although we agree with the appellee that the facts peculiar to each case govern the decision, we turn now to Florida Publishing Co. v. Lourcey, supra, to see what supervision was exerted by the publisher over the newspaper distributor who, we decided, was an independent contractor under the contract and evidence in that case.

The similarity in degree of supervision is striking. For instance, we learn from the original record in the cited case that papers were required to be delivered within certain hours; complaints were made direct to the publisher; the publisher received advance payments for subscriptions; the newscarriers were required to attend promotional meetings; the publisher supplied subscribers with issues of the paper in ■case of mis-delivery or non-delivery, but the carrier was not fined; the carrier was under bond; and delivery tickets were ■supplied to the carrier by the publisher. The carrier furnished his own automobile but there was evidence, which we consider significant, that a representative of the publisher examined the vehicle periodically to see that it was in good condition.

We have studied the “matters of fact” listed in the Restatement of the Law of Agency, supra, that are to be considered in “determining whether one acting for another is a servant or an independent contractor.” In this consideration we have not found that every element is so clearly present as to establish beyond argument that the arrangement between the appellant and Molesworth was one of independent contractorship, but when all elements are taken together, we think the conclusion is sound. We have already written our view about “the extent of control” exercised by the publisher over the details of the work, Sec. 220(2) (a). We have the definite opinion that newspaper boys as they perform their work generally in this country have a place in the pattern of American life that constitutes a “distinct occupation,” Sec. 220(2) (b), and that the provisions of the contract in this case are harmonious with this idea. True, there was some supervision by the publisher’s representative but while the newsboy was actually making his deliveries, he was acting alone and was a specialist, at least to the extent of following his route, remembering the addresses of subscribers who were in good standing, and collecting and properly accounting for funds coming into his hands, Sec. 220(c) and (d). The newscarrier furnished his own instrumentality, a motorcycle, Sec. 220(2) (e). The length of the engagement, or rather the condition for termination of the engagement, was specified in the contract, Sec. 220(2) (f). The method of payment, that is by the subscriber to the newsboy, was the compensation received under the contract, and the newsboy became indebted for papers delivered to him by the publisher whether or not he collected from the subscriber, Sec. 220(2) (g). We do not doubt that distribution of newspapers is a part of the regular business of the publisher but there is no reason that this cannot be done 'by independent contract, Sec. 220(2) (h). From the contract it is clear to us that the parties believed they were making Molesworth an independent contractor, Sec. 220(2) (i).

We are satisfied that the salient facts were not in dispute and that the basic question was one of law. Having concluded that Molesworth was an independent contractor, it follows that the judgment should be — ■

Reversed.

DREW, C. J., and O’CONNELL and BARNS, JJ., concur.


author: TERRELL, Justice.

text:
    Joseph Lester EZZELL, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    April 4, 1956.
    Rehearing Denied June 7, 1936.

      Boone & Swanson, Jacksonville, for appellant.
    Richard W. Ervin, Atty. Gen., Moie J. L. Tendrich and Joseph P. Manners, Asst. Attys. Gen., and William A. Hallowes, III, State Atty., Jacksonville, for appellee.
   TERRELL, Justice.

Appellant was indicted, tried and convicted for murder in the first degree in Duval County, he was so adjudged by the trial court and the extreme penalty was imposed. A new trial was denied and the defendant has appealed.

Appellant pretermits any question as to sufficiency of the evidence to support the verdict and judgment but to reverse the trial court he relies on technical objections to physical and other evidence, the admission of his confession and whether or not error was committed in excluding the evidence of Dr. M. C. Moore, an expert witness.

The first question presented has to do with whether or not one charged with murder in the first degree pursuant to F.S. § 909.18, F.S.A., can, prior to trial, require the state to produce all the evidence in its possession, including ballistic reports, fingerprint reports and transcript of oral confessions. The answer to this question was concluded against the contention of appellant in McAden v. State, 155 Fla. 523, 21 So.2d 33, and Williams v. State, 143 Fla. 826, 197 So. 562. As to the ballistic reports, it is pertinent to point out that they were made by the Federal Bureau of Investigation and were nothing more than an outline of testimony the examiner could give at the trial. The name of the Special Agent was furnished to the appellant. The state was ordered to produce all bullets and weapons for inspection for the appellant. As to the fingerprints, none were lifted from the pistol that was introduced in evidence. There were some fingerprints of defendant lifted from the automobile in which deceased was killed; they were ordered to be produced for inspection by appellant. Defendant now moves that the state attorney be required to make further fingerprints to show that those on the gun were those of the deceased. There was no basis for this request and it was properly denied.

It is next contended that a complete list of witnesses used by the state was not furnished appellant as required by the order of the trial court. The record discloses that the names of a substantial number of the witnesses to be used by the state were furnished counsel for appellant 48 days before the trial. Subsequently a first and second supplemental list of witnesses were furnished. The last supplemental list containing four names was furnished on January 21, 1955, and the trial .commenced on January 24, 1955. Only one of the four named witnesses was used at trial. On the morning of the trial, the name of an additional witness, a police officer from Delray Beach,' Florida, was furnished to counsel for appellant. Counsel for appellant was advised of the witness’ presence and given an opportunity to interview him. This witness was not used until the fourth day of the trial. Shields v. State, Fla. 1953, 64 So.2d 271, appears to be a complete refutation of this question.

The next question has to do with the admission in evidence of defendant’s confession made at the time he was brought before the magistrate at the preliminary hearing September 24, 1954.

This objection is based on F.S. § 902.01, F.S.A., which requires that when one is brought before a committing magistrate on any charge the magistrate shall advise him of the charge, of his right to counsel, of his right to waive examination and that he may refuse to testify if he so desires. It appears from the record that the magistrate and the state attorney were present when defendant appeared for preliminary hearing but that the state attorney informed defendant of his rights under, the cited statute. It is shown that the information given defendant by the state attorney met every requirement of the statute; he was fully advised of his rights in the premises so any error that was committed was technical and was harmless.

It is next contended that it was error to introduce in evidence the garments worn by deceased at the time she was murdered.

The deceased was in a restaurant, Steve’s Truck Stop, shortly before she was killed. Several witnesses saw her there, they did not know her, but did remember show she was dressed and so testified. There was no error. Cruce v. State, 87 Fla. 406, 100 So. 264; Browne v. State, 92 Fla. 699, 109 So. 811; Deeb v. State, 131 Fla. 362, 179 So. 894.

It is last contended that the trial court committed error in excluding testimony of the expert witness, Dr. M. C. Moore, for defendant.

Dr. Moore was a psychiatrist and examined defendant by request prior to the trial. He was not appointed or called by the court at the trial. At the time of arraignment defendant entered a plea of insanity but later withdrew it and notified the court that insanity would not be relied on as a defense. The purpose of the rejected testimony was to prove that defendant had a psychopathic personality so severe as to show lack of intent to commit first degree murder. Since the plea of insanity was out and there was no defense based on mental defects less than insanity, there was no reason for Dr. Moore’s testimony or to labor the question. Neither do we find in this case any reason to discuss the M’Naghten Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718, sometime known as the right-wrong test for insanity and long followed in this state but now being supplanted in some states by the doctrine of Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430. What was once known, as the “wild beast” test, Rex v. Arnold, 16 Howard State Trials 695, 764, has also: been relied on to escape punishment for crime but it has no place here. Much is. said in the briefs and record about defendant’s addiction to alcohol but there is no. conclusive showing that he was under the influence of liquor at the time he committed the murder involved here. There was testimony that indicated defendant was not under the influence. The court properly charged the jury as to intoxication as a' defense to murder.

We have examined and considered the record in this case in the light of briefs filed and have also, pursuant to sub-paragraph 2 of Section 924.32, Florida Statutes 1951, F.S.A., reviewed the evidence to determine if the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence does not reveal that the ends of justice require a new trial to be awarded.

Affirmed.

DREW, C. J., and THOMAS, HOBSON, ROBERTS, THORNAL and O’CON-NELL, JJ., concur.


text:
    Renzo ABOANDANDOLO, also known as Renzo Abbondandolo, Appellant, v. John VONELLA, Appellee.
    Supreme Court of Florida. En Banc.
    April 4, 1956.
    Rehearing Denied June 21, 1956.

      Mallory Horne, Tallahassee, and Norman R. Lyons, Miami, for appellant.
    Padgett & Teasley, Miami, for appellee.
   TERRELL, Justice.

August 13, 1953, New Jersey Department of Labor and Industry, Division of Workmen’s compensation, entered a determination, Award and Rule for Judgment, hereinafter referred to as Rule for Judgment, against appellant in favor of appellee. Having failed and refused to pay said Rule for Judgment, as required by the law of New Jersey, the plaintiff (appellee) caused it to be accelerated by an order entered in the Monmouth County Court, Law Division, the effect of which was to render said Rule for Judgment due and payable immediately as shown by copy thereof attached as Exhibit B.

In addition to the foregoing allegations, the complaint filed in the courts of this state to realize on the Rule for Judgment alleges that by reason of his default defendant became indebted to the plaintiff in the sum of $23,816.87, with interest thereon at the rate of 6% per annum as provided by the law of New Jersey, all of which remains unpaid. A motion to dismiss the complaint was overruled, answer was filed, a motion to strike the material allegations thereof was overruled and final judgment for the plaintiff was entered in the sum of $25,416.57, with costs in the sum of $17.20. We are confronted with an appeal from the final judgment.

As previously suggested, the purpose of this suit is to recover on the New Jersey judgment in the courts of this state. Appellant challenges the validity of the New Jersey judgment for lack of juridiction over the parties and the subject matter.

The answer to this question turns on whether or not the statute of limitations of New Jersey had run against appellee’s claim. In United Mercantile Agencies v. Bissonnette, 155 Fla. 22, 19 So.2d 466, 155 A.L.R. 916, this court held that courts of the forum are not charged with judicial notice of the law of other states, hence they must be pleaded and proven as ultimate facts. This doctrine was modified by Chapter 25110, Acts of 1949, Sec. 92.031, F.S.1955, F.S.A., which provides that every court of this state shall take judicial notice of the common law and the statutes of every state, territory and other jurisdictions of the United States, but that such notice does not operate automatically in every case. The party who intends tó take advantage of it must give reasonable notice to the adverse party or parties in the pleadings or otherwise and should produce supporting authorities. Peterson v. Paoli, Fla., 44 So.2d 639, 16 A.L.R.2d 1094; Kingston v. Quimby, Fla., 80 So.2d 455.

Appellant’s answer to the complaint did not allege that the New Jersey statute of limitations could not be waived and being so, he could not offer proof of it at the trial, nor can he take advantage of his failure to do-so on. appeal. In this situation, the trial court was required to assume that the New Jersey statute of limitations, N.J.S.A. 2A:14-5, was the same as the Florida statute of limitations, F.S.A. § 95.11. It is settled that the Florida statute of limitations is waived unless pleaded. Puleston v. Alderman, 148 Fla. 353, 4 So.2d 704; Akin v. City of Miami, Fla., 65 So.2d 54, 37 A.L.R.2d 691. New Jersey law on the subject appears to be the same as the Florida law. Markey v. Robert Hall Clothes, 27 N.J.Super. 417, 99 A.2d 552; Brown v. Allied Plumbing & Heating Co., 130 N.J.L. 487, 33 A.2d 813.

Another element supporting this conclusion is that the New Jersey statute of limitations provides that any time defendant is not a resident of the state shall not be counted on the period of time within which the action must be brought. It appears from the record in this case that defendant was absent from the state of New Jersey most of the two year period following the accident in question and being so, the statute was tolled during that period.

It follows that the courts of Florida had power to determine whether New Jersey had jurisdiction of the parties and the subject matter as a predicate for enforcing the New Jersey judgment. In any event if the courts of this state had tested the jurisdiction of the New Jersey courts, they could not have escaped the same judgment. Likewise if jurisdiction in this case had been tested in New Jersey, the statute of limitations not having been raised in ’ the trial court, it was waived. Siich was the ruling' of the trial court here.

The judgment appealed from is accordingly affirmed.

Affirmed.

THOMAS, HOBSON, THORNAL and O’CONNELL, JJ., concur.

DREW, C. J., dissents.

ROBERTS, J., not participating.