text:
    Gilbert Francis MEADE, Jr., Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    Feb. 22, 1956.

      E. L. McMorrpugh, and Ray Sandstrom, Hollywood, for appellant.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellee.
   THOMAS, Justice.

On 11 January 1955'two indictments were filed in the, •Circuit Court of the Fifteenth Judicial Circuit for Broward County charging the, appellant with murder in the first degree. The offenses were alleged to have been committed on the same day and the indictments in all respects were the same except that the appellant was charged in one with killing Domonick Albonizio by bludgeoning him with a shotgun arid in the other with, killing Evelyn Meade by shooting her with a pistol.

After various, preliminary motions, which there.is no need to discuss, the appellant on the same day, 3 March 1955, plead not guilty and riot guilty by reason of insanity to each indictment. Immediately after the pleas were, entered the court, evidently over the objection o.f the appellant, “consolidated [the two cases] for the purpose of trial.”

Five days before the, date set by the co.urt for the trial, the appellant presented in writing his “Renewed Objection to Consolidation.” From this paper we take his reasons for opposing a trial of both cases at once. First, he represented, that in one case he contemplated introducing no testimony but his own, while in the other case he.was considering the use of testimony of other witnesses, so if forced to meet both indictments in one trial, the use of the other witnesses relative to the crime' charged in one indictment would result in his forfeiting the right to the concluding argument. He Claimed also that he would be erhbarrassed in meeting the state’s charges by the dissimilarity in the defenses to the two indictments, and in the proof relevant to the charges. On the eve'of the trial, counsel for'the state and' the defendant and the judge indulged in a colloquy about the merits and demerits of the consolidation and the 'appellant reviewed his objections to such a course. The exchange of comment endéd with the renewed decision that the indictments be consolidated “for the purpose of trial.”

We think the objections offered by the appellant, were good. We ■■ have already seen from the- analyses of the indictments that- the appellant wa's charged with having killed h'is victims with- different instruments and in different. ways. Conceivably elements peculiar to one homicide would not appertain to the other. The motive in one might not apply to the 'other. In the trial the appellant claimed that he killed Alboni-zio in self-defense and that the death of Evelyn Meade was accidental. It is plain from the verdicts that the jury found some difference in the seriousness of the offenses for while the appellant was found guilty, without qualification, of murdering Evelyn Meade the jury recommended mercy in the verdict finding him guilty of killing Alboni-zio.

By the statute, Sec. 918.09, Florida Statutes 1953, and F.S.A., the appellant was assured that if he offered “no testimony *■ ■* * except his own, [he would be] entitled to the concluding argument before the jury.” This is a “substantial, proce-diiral right.” Hall v. State, 119 Fla. 38, 160 So. 511, 512; Lopez v. State, Fla., 66 So.2d 807.

The procedure followed in this case was bound to result in confusion and, we think, damage to the appellant’s defense.

We are convinced that the objections when made were valid and should have been sustained. The. appellant was by' the ruling required to go forward with his defense anticipating that if he offere4 testimony other than his own the final argument would be lost. It may be said that this particular error was cured when he did eventually close the argument but meanwhile he had followed the course charted by the judge In the original decision and we do not think that further to save the point he-should have, at the conclusion of the state’s evidence, again sought a ruling as to the effect upon the order of the argument of his offering testimony in addition to his own. He was probably forced to a decision involving the risk of withholding witnesses in' order to protect the “substantial” right of making the final address to the jury. ■ And that was an election that should have been freely made.

Our view that reversible'error was committed in consolidating 'thé cases is confirmed by another ruling made in the course of the trial. •

The court ruled “that the defendant and the State [would] be granted ten peremptory challenges and [would] be limited to ten peremptory challenges; only one defendant'being tried in the cause.” When the appellant had challenged ten jurors peremptorily he undertook to exercise - the eleventh peremptory challenge and the judge announced: “The motion will be denied, ten peremptory challenges having already been used by the defendant.”.

Confining the challenges to the number that would have been allowed had the defendant 'been on trial for the murder of one person was another illustration of the mischief that results from trying together two cases like these.

Of course, the purpose, of peremptory challenges, is the'effectuation of the, constitutional guaranty of trial by an impartial jury by the exercise of the right to reject a certain number of jurors whom the' defendant for reasons best known to himself" does not wish to pass' upon his guilt or innocence. In this manner he may eliminate from service jurors who may be objectionable but who may not be shown so prejudiced as to be. successfully challenged for cause. Carroll v. State, 139 Fla. 233, 190 So. 437.

The statute dealing with the subject of peremptory challenges contains a provision that the defendant shall be allowed ten of such challenges if the .offense charged is punishable by death or life imprisonment and that' if two or mofe defendants ■ are jointly tried, each of them shall be allowed ten peremptory challenges. Sec. 913¡08, Florida Statutes 1953, and F.S.A. But it does not follow that if a defendant is faced with charges óf murdering two persons] the number of his peremptory challenges should be restricted ot ten simply because there is but pne defendant. When the fundamental' purpose' of the challenges is considered, the contrary is plain. ‘

If two or more persons are charged with killing a single person, each defendant is given the ten challenges so he may excuse that many jurors, hot only because of their attitude towards the defendant or relationship with him, but-because of their- attitude toward the victim, or relationship with him, which would cause the defendant to believe that animosity toward him was harbored by the prospective juror. It requires little imagination to think of reasons for excusing; in this case, prospective jurors because of some attitude or relationship- relative to appellant’s wife, Evelyn Meade, that would have- no application to the other victim; Al-bbnizio, and the other way about. Though the ;common- denominator under the statute is apparently one, the defendant, we think this is no reason to- hold that the same denominator is appropriate if the lone defend- ' ant is charged in- separate indictments with killing two different persons, even if we approved the consolidation in the first place.

All .the references in the statute, Sec. 913.08, are,to an offense, in the singular, and it is in the concluding paragraph that provision is made that when defendant? are jointly tried each shall have the privilege of exercising the number of challenges specified.

In view of the purpose of peremptory challenges, it seems to us that even if consolidation of two cases of such gravity should be approved, there would be as much reason for allowing the defendant twice the number of specified challenges as to allow each of two defendants ten challenges upon their trial for murdering a single person. In either situation the number of challenges, twenty, would be the same as the total number assured by the statute if separate trials should be conducted.

We are referred to no statute authorizing the incorporation of criminal cases for trial' and we know of no decision of this court on the subject except the one in Hall lr. State, infra, and this opinion helps us little because no objection was made to the consolidated trial and it was not a prosecution which could result in the imposition of the death penalty.

. What we are deciding is that in a situation like this we cannot approve the procedure followed because miscarriage of justice, would too likely result, and the consequence of such a miscarriage in a prosecution culminating in electrocution is horrible to contemplate. There is much evidence in our statutes and decisions that greater care must be taken in a prosecution of such moment ■ than in other criminal prosecutions. As we have already noted more peremptory challenges are allowed than in other criminal prosecutions. A jury of twelve, twice the number required in other criminal cases, is provided in Sec. 913.10, Florida Statutes 1953, and F.S.A. Although a jury may be waived in criminal prosecutions generally, such a waiver may not be made “where a sentence of death -may be imposed”. Sec. 912.01, Florida Statutes 1953, and F.S.A. The charges to the jury shall be in writing. . Sec. 918.10(2), Florida. Statutes 1953, and F.S.A. Counsel for an insolvent defendant in a capital case is required. Sec. 909.21, Florida Statutes 1953, and F.S.A. Capital cases may be tried only on an indictment by a grand jury while other cases may generally be tried on information. Sec. 904.01, Florida Statutes 1953, and F.S.A. And when a case in which the extreme penalty has been imposed reaches this court for review the court is obligated to examine the evidence “to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not.” Sec. 924.32(2), Florida Statutes 1953, and F.S.A.

All these safeguards are thrown about the one accused of a crime which may result in his being put to death. The care with which he should be tried corresponds with the awful responsibility of taking human life to atone for crime.

We fully understand that in some jurisdictions consolidations are authorized by statute and that in at least one state, Pennsylvania, a consolidation of two charges against one defendant for murdering two persons was approved and in the trial the peremptory challenges were limited to the number allowable in a prosecution for the murder of one person by a single defendant. Commonwealth v. Peronace, 328 Pa. 86, 195 A. 57. But objections in the Pero-nace case to that procedure was not made so far as we can learn from the opinion.

We have already referred to our decision that it was within the discretion of the court to order consolidation of two infor-mations for connected larcenies of cattle “[e]specially * * * where no objection [was] made.” Hall v. State, Fla., 66 So.2d 863, 864.

But we do'not extend the ruling in that case to the immediate case; we do not adopt the ruling indicated in the decision of the Pennsylvania Supreme Court in Commonwealth v. Valotta, 279 Pa. 84, 123 A. 681; and we do not approve the procedure that was followed in the instant case. We think confusion, uncertainty, and outright damage to appellant’s fundamental rights, resulted and that the gravity of the charges and the caution with which they should be entertained by ■ court and jury make it necessary that they be tried anew, and separately.

Reversed.

DREW, C. J., and TERRELL, HOB-SON, ROBERTS, THORNAL and O’CONNELL, JJ., concur.


source: Caselaw Access Project

author: HOBSON, Justice.

license: Public Domain

text:
    In re Adoption of BROWN. In re Petition of William Thomas BRADFORD and Amanda H. Bradford, his wife, for Adoption of Thomas Leondrus Brown.
    Supreme Court of Florida. Special Division A.
    Feb. 22, 1956.
    C. Arthur Yergey, Orlando, for appellants.
    Robert C. Wright, Apopka, for appellee.
   HOBSON, Justice.

Appellants, William and Amanda Bradford, petitioned the circuit court, in chancery, for the adoption of Thomas Brown, a child now two years old. They prosecute this appeal from a decree denying their petition.

Two hours after the child was born it was brought to appellants, who have ever since retained custody of it. The natural mother has consented to the adoption of the child, and a decree pro cónfesso has been entered against her husband in these proceedings.

When the proceedings were instituted, the State Welfare Board filed a report with recommendations, pursuant to F. S. § 72.15, F.S.A., thereby becoming a party to the cause, but it presented no testimony at the hearing. The record therefore consists mainly of uncontroverted evidence adduced by the petitioners and their witnesses. F.S. § 72.27, F.S.A., declares adoption records to be confidential. We appreciate the policy of this section, and will confine our discussion to those facts which are absolutely essential to our decision.

The State Welfare Board recommended that-the adoption should not be approved, but that the child should not he returned to his natural mother, rendering- it necessary for the court to recommend placement o,f the child. , By the .decree appealed, from, the chancellor, denying the petition for adoption, ordered the natural mother to show cause why the child should not he committed to the Department of Public Welfare for further planning. The only stated basis for the decree is embodied in the following findings, made by the chancellor:

“1. That the petitioners, William Thomas Bradford and Amanda H. Bradford, his wife; are not suitable persons to adopt the said minor child, due to the advanced age of the' petitioners and the activities engaged in by Amanda H. Bradford as a Psychic Reader.
“2. That the adoption of this child by the petitioners will riot serve the child’s .best interests.”

Appellants contend that the first finding is •in'suffitient in law to sustain the' decree, and ’ that the ’ second is not" supported by the record.

It appears that Mr. Bradford, at the time of the hearing, was 57 years old and- Mrs. Bradford’s age was- 53. Both enjoy -excel-lent health.'.

■ In .2 C.J.S., Adoption of Children,. § 8, p. 379, it is stated:-.

“The adoptive parent or parents must, be of the age prescribed by statute, but, in the absence of a provision to .th.e contrary in the adoption statute, an advanced age will not disqualify.”

There is no statutory- age limit in.Florida for' petitioners for adoption. While, age'-is undoubtedly a factor to be evaluated by the chancellor in ruling, upon a petition of this nature, we -are of the opinion that the age ■of these petitioners should not, without more,-be held .to bar the adoption,-particularly; where,'as. here, the alternative seems to be -placement of the child with a public agency.

We next consider the activities of Mrs. Bradford.as a “psychic reader”. The Welfare Board said of Mrs. Bradford, in its report, that she is “a spiritualist and holds religious gatherings in her home”. Mrs. Bradford, in her testimony, referred to these gatherings as “services”. She further testified that she is a licensed “psychic reader” and that the activity in which, she engages is an accepted religious faith in the United States. The “services”, each lasting about two hours, are' held in her home once a week, and from ten to twenty people attend. Mr. Bradford, a Presbyterian, does not participate in these activities. He testified that there is no noise from his wife’s gatherings, and that they do not disturb the child. In short, nothing was proved regarding the “psychic readings” which would work against the welfare. of -the child. , . ■

We- next consider- the chancellor’s determination that “the adoption of this child by the petitioners will not serve the child’s best interests”. Appellants contend that this is in fact a conclusion, based upon finding number 1. For the. purposes of this appeal, however, we shall treat it as a finding and turn to the record to ascertain whether or not it finds independent support, i. e., whether or not factors .appear in the case in addition to those already- discussed which would warrant the result which the chancellor reached in the decree appealed from.

From all of the evidence- appearing herein, it would seem that the conduct of petitioners has been exemplary. They are hard-working people who are well regarded in the community. They own their home', free and clear of encumbrances, and are able financially to care for the child. In fact, they have already demonstrated their ability in a manner-relevant to this inquiry, since they have successfully raised and educated one adoptive son, who is now attending the ■ University of Miami Medical School. They are- devoted- to the child who-is the subject of this < litigation, and have’’ been scrupulously attentive to his welfare.-1

Nothing in the report of the State Welfare Board, which is the sole evidence to support the denial of the petition, is at variance with the facts set out above. Examination of this report reveals that the main ground stated for opposition of the adoption was that the child was not “available for adoption” because, the natural mother was unwilling to have notice by publication given the “legal father”. If there was any difficulty here, it was resolved by the decree, pro confesso which has -been duly entered ’ against the legal father.

The decree appealed from is reversed with directions to grant the petition for adoption.

DREW, C. J., and TERRELL and ROB-' ERTS, JJ., concur., ■


author: TERRELL, Justice.

text:
    GREAT AMERICAN INDEMNITY COMPANY, Petitioner, v. Doretha WILLIAMS, James E. Battle, Sonja Melissa Williams, Audrey Faye Williams, and The Florida Industrial Commission, Respondents.
    Supreme Court of Florida. Special Division A.
    Feb. 22, 1956.

      Samuel Kassewitz, Jacksonville, for peti- ’ tioner.
    Norman P. Freedman, Jacksonville, for respondents Doretha Williams, James E. Battle and Sonja Melissa Williams.
    Ernest J. Jacobs, Jacksonville, for respondent Audrey Faye Williams.
    Burnis T. Coleman and Rodney Dur-r'ance, Tallahassee, for respondent Florida Industrial Commission.
   TERRELL, Justice.

This is a petition for certiorari to review an order of Florida Industrial Commission affirming an order of the Deputy Commissioner awarding the claimants’ attorneys fees in the amount of $900 for representing them (claimants) before the Deputy Commissioner. Said attorneys were also allowed fees in-the sum of $600 for representing claimants before the full Commission in the same cause growing out of the following facts:

December 11, 1953, Arthur J. Williams sustained injuries arising out of and in the course of his employment from which he died the same day.. Four days after his death, "the carrier secured a statement from the “alleged wife” [Doretha Williams] of the deceased, in which she said she was-married to him in January, 1951, and that they separated in October, 1951. She also stated that she and deceased had one child, Audrey Faye Williams, born in 1950 prior to their marriage. It was subsequently shown, and found by the Deputy Commissioner, that the deceased and Doretha had another child born October 12, 1952, more than a year after the deceased and Doretha separated. The birth certificate of the latter child, Sonja Williams, does not show the name of the father. Doretha Williams also testified that she had a son, James E. Battle, born in 1947, and that the deceased had not contributed to her support or the support of said son since they were separated. She also testified that she and the deceased had not secured a divorce and so far as she knew, no proceedings had been instituted for one.

December 23, 1953, after investigation, the carrier wrote the Florida Industrial Commission as follows:

“This is to advise you that we stand ready and willing to pay compensation in connection with the above fatal case, which arises out of an accident which occurred on December 11, 1953.
“It will be necessary for the Florida Industrial Commission to determine the proper beneficiary or beneficiaries to receive payment of compensation, and this is a request that they proceed to the necessary investigation for the purpose of determining that question.
“We shall appreciate your instructions and advices.”

It is quite evident from the language in the letter, “We stand ready and willing to pay compensation,” that the carrier admits liability but it contends that the investigation and determination of-the lawful beneficiary is the function of the Industrial Commission and therefore the burden of attorneys fees should not be placed upon it. December 30, 1953, the Director of the Commission acknowledged- receipt of the quoted letter but denied- that it was the responsibility of- the -Industrial. Commission to investigate and determine the law-fui beneficiaries. He contends to the contrary that such responsibility was on the adjusters for the insurance carrier. The Director then requested the carriér to investigate the 'matter • and submit such , information to the Deputy Commissioner as would enable him to determine the lawful beneficiaries and the order or preference, if any, including the amount of compensation that should be made to them.

On May 14, and June 7, 1954, after due notice, hearings were held before the Deputy Commissioner. No compensation was paid to claimants during this period. The attorneys for the claimants and the attorney for the carrier appeared at these hearings and participated in them. Counsel for the carrier not only participated but filed in evidence various exhibits. Most'of said hearings involved adversary matters among the various. claimants to establish their right to compensation under the act. The mother of the deceased, Hattie Haywood, also represented by counsel,, testified that the deceased supported her and contributed to the support of Audrey Faye Williams who was in her 'custody. The carrier did not controvert the lawful claims but expressed willingness to pay compensation to those whom the Deputy Commissioner found rightfully entitled to it.

The Deputy Commissioner found that Doretha Williams was the widow of the deceased, that she was dependent upon him for support but that she was living apart from him for justifiable cause at the time of his death. The Deputy Commissioner also found that James E. Battle was the stepchild of the deceased and that he was dependent upon deceased for support and was entitled to compensation. He further found that Sonja Williams and Audrey Williams were children! of Doretha and. deceased and that they were entitled, to compensation. The Deputy Commissioner further found that the mother of deceased was dependent upon him for support but account of the limits of 60% as set forth in Section 440.16, F.S., F.S.A., he did not award her any compensation. He accordingly awarded the widow 35% of the average weekly wage and each child 8}4% of the average weekly wage the result being thát the widow will receive $12.88 per. week, and each child will receive $3.06 pér week. The reason for setting forth these amounts is to show that they are so inordinately small that to -impose the attorneys fees upon the claimants would work such hardship on them as to defeat the real purpose of. the-Workmen’s Compensation Act. .

Having disposed of the question of compensation, ‘the Deputy Commissioner proceeded to the more difficult question of awarding attorneys fees to the successful claimants’ attorneys. He concluded that under Section 440.34, F.S., F.S.A., attorneys for the successful claimants were entitled to compensation and that their fees should be paid by the carrier. He based this finding on the holding that it was incumbent upon the carrier and not the Industrial Commission to make the investigation. When Section 440.20(8), F.S., F.S.A., is read in conjunction with Section 440.16,' F.S., F.S.A., said the Deputy Commissioner, this conclusion is evident. The Deputy Commissioner concluded that a reasonable fée. for both attorneys representing the successful claimants would be $900. On appeal to the full Commission, the finding of the Deputy Commissioner was affirmed on a two to one judgment.

• The sole question before the full Commission was that of. attorneys fees. The full Commission held that since the.-carrier “declined” to-pay the claims on or before the 21st day after notice, Section 440.34(1),-F.S., F.S.A., was activated and accordingly -entitled the successful claimants’ attorneys to a reasonable fee. The full Commission further held that the essential feature of the Workmen’s Compensation Act was its. self-executing framework .and that the benefits under it were intended to pass directly from the carrier .to' the beneficiary. In effect it construed Section 440.16, F.S., F.S.A., to mean that the survivors, had definite rights that arose- upon the death of the employee and the Commission had but a discretionary power to alter statutory allocation of benefits on. its own motion or application of an interested party. It further held that the Deputy Commissioner was correct in his holding that'“this can only mean that the employer or carrier may pay in accordance with the provisions of Section 440.16(2) (a) and (c), F.S. [F.S. A.], and then after payments have been commenced, the Commission or some interested party, feeling that such percentages are not just and proper, asks that consideration be given to changing them, Tn the instant case, had the carrier paid in accordance with Section 440.16(2) (a) and (c), F.S. [F.S.A.], it would have been entitled to credit for such payments even if thereafter the Commission, by its Order, required payment in a different ratio. Sec-tiqn 440.16 obviously does not intend to compel the Commission to enter an order in each and every death case, directing to whom compensation should be paid. If the-carrier’s contention with respect to this' section is correct, then death benefits could never be paid except after an order by the Commission.”

The dissenting Commissioner contended that the carrier should not have been impressed with claims totalling more than 1.05% of the average weekly wage; that there were many contradictory statements about who was the father of one of the children, whether the widow left the deceased for cause and that it was inequitable -to require the carrier to pay an attorney’s fee assessed on the same basis as if the carrier had denied liability for the accident or had controverted dependency of any and all claimants. The dissentingj Commissioner also contended that it was difficult to visualize a set of facts which more strongly indicated that the full Commission should make the investigation.provided in See. 440.25, even though Sec. 440.-20(8) was technically limited. In this connection, the minority of the Commission contended that if the legislature had intended that if failure to pay a claim .within 20 days after the carrier had notice'thereof, would obligate the carrier to pay an attorney’s’ fee, regardless of the circumstances, it would have been extremely simple for Sec. 440.34(1), F.S., F.S-.A., to have Used the word “fail” rather than “decline.”

The sole 'question raised .in. this court is the same as that which confronted the full. Commission, that is to say, are the successful claimants under Sec. 440,34(1), F.S., P'.S.A., entitled to an award of attorneys fees to- be paid by the carrier?

The answer to this question turns in the main on the interpretation of Sec. 4'40.34(1), F.S., F.S.A., as follows:

“If the employer or carrier shall file notice of controversy as provided in §' 440.20 of this chapter, of shall decline to pay a claim on or before the twenty^ first day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured person shall have employed an attorney at law in the successful prosecution of his claim, there shall, in addition to the award for compensation' be awarded reasonable attorneys fee, to be approved by the commission .which may be paid direct to the attorney for the claimant in a lump sum. If any proceedings are, had for review of any .claim, award or compensation order before any court, the court may allow or increase the attorney’s fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the court may direct.”

' In our view the letter from the carrier, quoted above, advising that it stood ready and willing- to pay compensation was not such a compliance with the requirements of the act as would -avoid invoking its re- ■ quirement to pay the claim. The pertinent part of the said statute as applied to this case is that the carrier did decline to pay a “claim” on or before the 21st day after they had notice of. same. Willing to pay “compensation” is not the same as willing to pay a specific claim.

In this connection it is not amiss to point out that the carrier, raised the point of decision'in good faith and reasons might be recited to relieve i.t from payment but we think that in view of the philosophy and purpose of workmen’s compensation, there are countervailing reasons which require it to pay. There were five claimants to compensation, the mother, wife ahd three children, one of whom was á' stepchild. The paternity of the children was 'in question as was the question of whether or not the putative wife was-'entitled to recover compensation. It was necessary -to determine which offfhese parties were entitled to compensation. The carrier was vitally interested in the answer to these questions as was the Industrial Commission. While the act does not in terms say so, we think the burden was on the Industrial Commission or the Deputy Commissioner to make the investigation to determine these questions and that the claimants were entitled to representation at’ the investigation. This may- not be true in all cases but when as here' it is found to be true, attorneys fees may be imposed tinder the statute, Sec. 440.34(1), F.S., F.S.A.. In this holding we do n’ot overlook Balatsos v. Nebraska Ave. Cafe and Liquor Store, 159 Fla. 71, 30 So.2d 633, relied on by the carrier, but we do not think .it rules the case at bar. •

We have frequently held that the purpose of the Workmen’s Compensation Act is to provide for the injured Workman and in the event of his death from injuries received in his employment, to provide for the dependents so that the burden does not fall on society but on the industry served. Any other conclusion than that reached in this case would not serve the purpose of the act. Whitehead v. Keene Roofing. Co., Fla., 43.So.2d 464; Florida Game & Fresh Water Fish Commission v. Driggers, Fla., 65 So.2d 723. Moreover in construing the act, the court must read the statute in the light of .the whole act, since, only. from, the whole can the legislative intent be. gained. Zee v. Gary, 137 Fla. 741, 189 So. 34. Even in doubtful cases under th'e Workmen’s Compensation Act, this co’urt has-held that such doubt should be resolved in favor of claimant. Sanford v. A. P. Clark Motors, Fla., 45 So.2d 185. We -are not unmindful of the rule that the awa-rd of áttorneys'-feés is'in-derogation of common law and that acts for that purpose should be construed strictly. Weathers for Use and Benefit of Ocean Accident & Guarantee Corp. v. Cauthen, 152 Fla. 420, 12 So.2d 294. Moreover we are - inclined ;to the view that the carrier was, as,' the Deputy .Commissioner found, such an interested party in the proceedings as to. justify imposition of attorneys fees under Sec. 440:34, F.S., F.S.A. This'court has on numerous occasions held that dependency within the-act is a question of fact and the -status of the marriage at the time of the death is an .important factor in entitling the wife to compensa-: tion. See Tigertail Quarries v. Ward, 154 Fla. 122, 127, 16 So.2d 812; Hillyer & Lovan v. Florida Industrial Commission, 155 Fla. 144, 19 So.2d 838.

We are mindful of the ambiguities in the statute and the fact that in everyone’s opinion there is said to be a residuum of error but we think this interpretation is in accord with- the exigencies ©f the situation. : . ' - - ..

Certiorari is accordingly deniedi

..DREW, . C. J., - and HOBSON ■ and Q’CONNELL, JJ„ concur.--


author: O’CONNELL, Justice. O’Connell; justice.

text:
    WARSHAW-SEATTLE, Inc., a Florida Corporation, Petitioner, v. Patricia CLARK, Wavel S. Clark, and Malcolm Lewis Kneale, Respondent.
    Supreme Court of Florida. Special Division B.
    Dec. 14, 1955.
    Rehearing Denied Feb. 22, 1956.

      Anderson & Nadeau, Miami, for petitioner.
    Caldwell, Parker, Foster, Wigginton & Miller and Malcolm S. H. Kneale, Miami, for respondent.
   O’CONNELL, Justice.

Warshaw-Seattle, Inc., the petitioner here and plaintiff below, on January 22, 1953 brought a common law action, in contract, in the Civil Court of Record, Dade County, Florida, against Patricia Clark and Wavel S. Clark, defendants below, to recover the sum of $233.33. Plaintiff also filed its attachment affidavit, its attachment bond in amount of $466.67, and Writ of Attachment was issued to the Sheriff who promptly seized an automobile owned by the defendant, Wavel S. Clark. Thereupon, Wa-vel S. Clark filed an affidavit claiming said automobile to be exempt under the constitution of this state and the automobile was released. Malcolm • Lewis Kneale, attorney for Wavel S. Clark, the owner of the car, then filed a motion to dissolve attachment and traverse of the attachment affidavit. Plaintiff amended its complaint and an: swers were ultimately filed by the defendants.

The issue joined by defendants’ traverse of plaintiff’s attachment affidavit was tried before a jury, which on March 26, 1953, rendered a verdict that the “plaintiff did not have the right to attach the property of the defendants.” Final judgment in accordance with the verdict was rendered and filed on April 8, 1953.

On June 23, 1953, plaintiff filed its Motion for Order of Dismissal, on the ground that “the cause has been amicably settled by the parties hereto.” A hearing was had on said motion, at which counsel for the parties were present, after which hearing on July 15, 1953, the court entered an order denying the plaintiff’s motion to dismiss the cause and giving the defendants’1 attorney until August 1, 1953j to file a claim for attorney’s fees.

On July 27, 1953, Malcolm Lewis Kneale filed a Bill of Intervention in which he alleged .that:

“ * * * said Defendants, Patricia Clark and Wavel S. Clark, sought the service "of your Intervenor, as their attorney, in regard to said attachment, and agreed to pay your Intervenor a reasonable attorney’s fee for his service in attempting to dissolve said attachment, ' * * * ”

Said Bill of Intervention further alleged that Intervenor was successful in securing dissolution of said attachment and that he rendered his skill, labor and time in so doing ; that on about April 10, 1953, he made demand on plaintiff, through its counsel, for “a reasonable attorney’s fee for services rendered in Dissolving Plaintiff’s Attachment”; that plaintiff was aware that Inter-venor had not been paid for his services; that nevertheless on or about April 10, 1953,> plaintiff, acting through its president; made a settlement with the defendants, where-underthe defendants released plaintiff from all liability for the wrongful attachment of defendants’ automobile, defendants received Fifty ($50.00) Dollars in cash and gave plaintiff a promissory note for. the full amount claimed by it in the suit, but made-no provision for payment of Intervenor’s fees; that he had no knowledge of and did not consent to said settlement. There was no allegation that the settlement was made with the intent to deprive the Intervenor of his fees.

On August 5, 1953, Malcolm Lewis Kneale, as Intervenor, filed a Motion for Summary Judgment with a supporting affidavit. On September 16, 1953, plaintiff filed a motion to dismiss all of the proceedings.

On November 5, 1953, the court entered an order in which it dismissed the plaintiff’s claim against the defendants, and the defendants’ claim against the plaintiff; denied the Motion to Dismiss the Bill for Intervention and authorized the Intervenor to intervene and prosecute his claim; and simultaneously, in the same order, granted Intervenor Kneale’s Motion for Summary Judgment on the issue of liability, ordering that the case proceed for the sole purpose of determining the amount of Intervenor’s damage. (Attorney’s fees.)

Trial before jury on the question of amount of attorney’s fee was held and the jury awarded the Intervenor Seven Hundred Fifteen ($715.00) Dollars.

Plaintiff moved for new trial, which was denied, and then appealed to the Circuit Court of Dade County, where the following order was entered on May 24, 1955 :•

“Carroll, J.
“This is an appeal from the judgment of the Civil Court of Record for certain attorney’s fees in the amount of $715.00. The bond was $500.00. Without going into the facts, it can be stated as the conclusion of this court that there was no basis for the allowance of judgment .beyond the $500.00 amount of the bond, and the judgment should be reduced to that figure.
“Accordingly, the cause is remanded for further proceedings in conformance with this opinion.

“It is so ordered.”

Plaintiff filed its petition for certiorari and Malcolm Lewis Kneale filed a cross petition for certiorari, plaintiff also filed a motion to dismiss defendants’ petition because not filed within thirty (30) days from filing of the- order from which relief is sought. Said Motion to Dismiss is without merit. 30 F.S.A.Supreme Court Rules rule 22.

The briefs filed herein by the petitioner and cross petitioner raise fourteen questions. We feel it necessary to answer only one, to-wit:

Does an attorney, representing an attachment defendant in a successful dissolution of the Writ of Attachment have a right to intervene in the main action, which was in contract, and sue the plaintiff for his fees rendered in dissolving the writ, where the plaintiffs, without the knowledge and consent of the' attorney, settle the main action with the defendants 'and secure a release from defendants of a possible claim for damages for the wrongful attachment.

“Persons who are not parties of record to a suit have no standing therein which will enable them to take part in or control the proceedings. If they have occasion to ask relief in relation to the matters involved, they must either contrive to obtain the status of parties in such suit or they must institute an independent suit.” 39 Am.Jur., Parties, Sec. 55. “In our jurisprudence, the right of one to intervene in an action, suit, or proceeding between others is generally regarded as a purely statutory right, or a right of statutory origin, and as one which is to be exercised according to the statute authorizing it. * * * It was unknown to.'-- common-law- procedure.”- 39 Am.Jur., Parties; Sec. 56.

There was no statute or rule of court applicable ■ to the case involved in this proceeding, and in the absence of such a statute or rule of court Florida follows the common law. It therefore follows that the intervention of -Malcolm Lewis Kneale should not have been allowed.

There are other errors which would warrant issuance of the writ, but which peed not be dealt, with here in view of the conclusion reached above.

The petition for Writ of Certiorari' is granted, and-the cross petition denied. The order of the Circuit Court in the premise, is accordingly vacated, and the cause'remanded for the; entry of-an -order directing the disposition of the proceeding in the Civil-Court of Record in conformance with this opinion;

It is. so, ordered.

DREW, C. J., and THOMAS and THORNAL, JJ., concur, - ■ ■

On Petition fór-Rehearing

O’Connell; justice.

■ The • respondent and cross-petitioner, ’ Malcolm Lewis Kneale, complains that in rendering its -opinion -filed here on December 14, 1955, this Court overlooked the prior decisions of-this Court in Mabry v. Knabb, 151 Fla. 432, 10 So.2d 330, and Miller v. Scobie, 152 Fla. 328, 11 So.2d 892.

'.W.e have carefully, ■ reviewed the record and the briefs .filed in this case, and the published . opinions and original. r'ecords in-the two cases above ci-tedi

While this Court did not overlook either of .the'cases above cited,'a comparison of the facts in those' cases to the facts of' the instant' 'case .will indicate that the principals of law followed in those, cases do .not appiy under the facts in this case!

-,In the case of Mabry v. Knabb, supra, the ' attorneys represented Durierp as-’ Trustee, the lessor of certain- lands, -iff defense of an action to foreclose tax certificates brought'by the. lessee, Knabb. In the answer.filed by, Mabry, Reaves, Carlton & White and William H. Frecker, Attorneys,on behalf of the lessor, affirmative -relief,, i'.e. an accounting and adjudication 1 of rentals due to lessor by lessee, was sought; Under the terms of'the lease between the parties, the lessee-plaintiff Knabb was- obligated to" pay a reasonable attorney’s fefe and all-costs of any proceedings necessary to be brought to collect from lessee >any; sums due thereunder. A full and complete settlement was made by Knabb and the-lessor, client of' Mabry, et al., during -the-time of taking of testimony in the court' below., Knabb moved to vacate the order of reference on the ground that the cause had been settled between the parties. The, court refused to. grant this motion on grounds not pertinent here. In the proceedings Mabry, Reaves, Carlton & White and William PI. Frecker moved the coúrt for- permission to continue the action, fpr accounting between Knabb , and the lessor “for the purpo.se, of paying and to the .extent necessary to pay the fees due them, severally by the trustee (lessor) for, legal services performed in this suit. * *-

A motion was made to strike the motion of Mabry, et al., above referred to, but neither motion appears to have been dis-. posed of. The court below, however, ,in its final decree denied an, allowance of attorney’s fees. One of the findings, on which the lower court based its denial of attorney’s fees, was that, the-settlement-between Knabb and Duner, as Trustee, the lessor, was not fraudulently made as to the attorneys. The lower court also held that the settlement between Knabb and Duner left Kna-bb’s -cl'aitti for taxes standing Unimpaired and that therefore Knabb was not found to have owed any monies under the1 lease such as to require payment óf fees. It does not appear that Mabry, et al., intervened in the cause, but they "did prosecute the appeal-‘in their-own names‘and raised and argued-questions which 'indicate that they-were parties to the'appeal-'and were accepted'as'such.

This Court found, that Knabb owed $29,073.67 under the lease, allowed the attorneys to recover their 'fees from Knabb, holding in effect that Knább could nof, by settling' the case with lessor, escape his obligation to pay fees which he had contracted to pay under the lease provisions.

In the case of Miller v. Scobie, supra, the attorneys Ruff and Ready, had undertaken to represent the plaintiff in a breach of promise suit. The attorneys were, by con-tract, to receive 50% of all sums recovered. A settlement was made between the' parties without the knowledge or consent of Ruff and Ready. This Court said,- in its opinion allowing Ruff and- Ready to prosecute the cause -in the’name"of the plaintiff to recover their fee:

“Ruff- and Ready had a very material right in the. fruits of this litigation,;” [152 Fla. 328, 11 So.2d 894].

In comparing fhe two cases above cited' with ’the case before us' it is to be noted that:' (1) In Mabry v. Knább, supra, intervention does not appear to have been' allowed by formal order, however, the result' was the same as if intervention were allowed, but intervention, is allowed in equity. In Miller v. Scobie,: supra, the attorneys were • not allowed to intervene, but were allowed to continue- a pending suit in the name of their client.

(2) In those cases the attorneys were representing their clients in seeking affirmative relief, not merely defending. The purpose of the litigation in each case was-to create a fund or res to which their charging liens could attach and in which the at-, torneys would share. • .

(3) In the Mabry v. Knabb case Knabb was obligated by the lease to pay attorney’s fees.

Whereas in the case before us, which was at law, the-attorney Kneale sought to intervene in his own name. Further, he only performed services ■ which were defensive.'He did the following:

(1),:.Traversed the attachment affidavit and dissolved the writ of attachment, which action had the effect of terminating the attachment proceedings leaving pending only the main suit brought in contract, by Warshaw-Seattle, Inc. against the defendants Clarks, represented by Kneale.

(2) Filed an answer in the main suit. No affirmative relief was sought and none could have been obtained by the defendants in the cause below, under the pleadings as they stood at the time of settlement.

.While it is true that Kneale, by the successful dissolution of the writ of attachment, may have .created a possible cause, of action in wrongful attachment, either on- the, attachment bond or separate therefrom -in torf,. no suit was filed therefor. While we do not hold that defendants Clarks could have filed a counterclaim, for wrongful attachment in the main action brought by Warshaw-Seattle, Inc., the matter not being before us to decide, the record reveals they did not do so. The'only results which could have been achieved by litigating the suit which the parties settled was a judgment that defendants did or did not owe the plaintiff the sums claimed by it. There was in fact no suit then pending which Kneale could have continued in the name of his clients which could have resulted in a judgment to which his attorneys charging lien could have attached.

Having again carefully studied the record, the briefs • and the cases cited therein, it is our opinion that the petition for rehearing should be and it is denied.

DREW, C. J., and THOMAS and' THORNAL, JJ., concur.


author: TERRELLv Justice.

text:
    FELLOWSHIP FOUNDATION, Inc., a Florida nonprofit corporation, and West Virginia Training School, a West Virginia corporation authorized to do business in the State of Florida, Appellants, v. B. M. SOULE and wife, Anna S. Soule, Appellees.
    Supreme Court of Florida. Special Division A.
    Jan. 13, 1956.
    Rehearing Denied March 13, 1956.
    Thacker & Thacker, Kissimmee, for appellants.
    Nichols & Whitehurst and Owen S. All-britton, III, Clearwater, for appellees.
   TERRELLv Justice.

.Fellowship Foundation, Inc., is a Florida corporation, not for profit. West Virginia Training School is a West Virginia Corporation, authorized to do business in Florida, through a designated resident agent, Clarence A. Maddy. B. M. and Anna S. Soule brought this action • against Fellowship Foundation, Inc., to recover on a promissory note, endorsed by West Virginia Training School. The note was executed by C. A. Maddy, President of Fellowship Foundation, Inc. The complaint alleged the designated resident agent of West Virginia Training School to be “Clarence A. Maddy-whose address is % Thacker and Thacker, Attorneys at Law, Thacker Building, Kissimmee, Florida.” A motion to dismiss on the part of West Virginia Training School was denied; default judgment was entered-against the movánt who suffered a final judgment to be ' entered against it. Later summary judgment was entered against Fellowship Foundation, Inc. The joint defendants have appealed from both the summary judgment and -the final judgment entered in the cause.

Several questions are urged for determination but the only material one is that challenging the jurisdiction of the Circuit Court on the ground that service of process was not secured on defendant West Virginia Training School.

It appears that there were two judgments entered by the trial court.' The first was entered February 19, 1954, 'pursuant to default by West Virginia Training School. The second -was entered August 17, 1954, against'Fellowship Foundation, Inc. Appellants seek review of both judgments by notice of appeal filed October 16, 1954. As to.West Virginia Training School, it is apparent that the appeal was not taken within 60 days from entry of the judgment appealed from as required by Sec. 59.08, Florida Statutes, F.S.A. See also Donin v. Goss, Fla., 69 So.2d 316, and Dustin v. Latzko, 155 Fla. 824, 21 So.2d 904.

It follows that this court did not acquire jurisdiction of West Virginia Training School and being so, there is no theory-under which we would be authorized to' explore and adjudicate the first or main question raised. As to Fellowship Foundation, Inc., the questions raised are without merit and are not discussed.

Affirmed.

DREW, C. J., HOBSON, J„ and' STANLY, Associate Justice, concur.


author: O’CONNELL, Justice.

text:
    Diamante URGA, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division B.
    Feb. 22, 1956.
    Whitaker Brothers and V. R. Fisher, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., and Paul B. Johnson, Pros. Atty. Hillsborough County, Tampa, for appellee.
   O’CONNELL, Justice.

The appellant contends, upon this appeal from a verdict and judgment of conviction for the crime of abortion, that the court below committed reversible error in striking certain testimony elicited by her counsel from the chief prosecuting witness with the aid of a transcript of a previous interview by counsel with such witness. The propriety of referring to such document in framing questions for the purpose of impeachment, and counsel’s right to refuse to surrender same to his adversary for use in redirect examination, has been settled and determined by a prior adjudication of this Court in an appeal from a contempt order against defense counsel in this cause. Whitaker v. Blackburn, Fla., 74 So.2d 794.

In view of the latter ruling, and the conceded fact that the testimony stricken had a direct bearing upon the credibility of the witness and upon appellant’s defense in general, it would appear that the action of the court below was highly prejudicial, requiring reversal of the judgment and sentence against appellant, and that the cause be remanded for a new trial. The argument by the State, addressed to the soundness of the decision in the above cited case of Whitaker v. Blackburn, and its alleged conflict with the conclusion of the Court in Williams v. State, Fla., 74 So.2d 797, released simultaneously, is not well taken. The opinion in the latter case shows clearly that the ruling, to the-'effect that the document there in question must be produced upon demand for inspection by opposing counsel, was expressly predicated on the nature of the particular extrajudicial statement involved as a declaration against interest governed by the rules applicable to confessions, and the fact that if such'statements could be so used “the safeguards which have been built around the process of introducing extrajudicial.confessions in evidence could be circumvented by their purported use solely for impeachment.” Williams v. State, supra, 74 So.2d at page 800. No such circumstance requires that the transcript of memoranda in this case, used only by counsel in framing inquiries' or cross, should be classed separately from any notes of counsel which may be made and kept privately in preparing for and conducting a' trial, under the rule adopted in the Whitaker case.

In1 view of the conclusion which we have reached on the first question it is unnecessary to consider the other question raised.

For the reasons above stated, this cause is reversed and remanded for a new trial.

DREW, C. J., and THOMAS and ROBERTS, JJ., concur.


text:
    Tom BARRETT, Petitioner, v. Sam PICKARD and Francke Palmer Pickard, his wife, Respondents.
    Supreme Court of Florida. Special Division A.
    Feb. 22, 1956.
    Mann, Harrison, Roney, Mann & Master-son and McKinney Barton, St. Petersburg* for petitioner.
    M. C. Scofield, Inverness, for respondents.
   O’CONNELL, Justice.

This is a petition for certiorari directed to an order entered in the Circuit Court* Fifth Judicial .Circuit, Citrus-County.

The pleadings in the lower court-ánd'the briefs of the parties reflect that they, -plaintiffs below-, the respondents here,- ás lessors and'owners did-on or about October 11, 1954 lease certain lands, improvements, furnishings and equipment t.o the defendant below, the petitioner here, as lessee, for a term ending September 30, 1955, rental to be paid by lessee on a percentage of gross receipts from the operation of the leased premises, plus a provision for division of net profits under certain, circumstances. The premises demised consisted of rental units and a restaurant known as Paradise Point Villas and Port Paradise Hotel. It further appears that the lessee did not have sufficient monies for operating capital and that lessors advanced $2,000 in cash and $950 in merchandise and that lessee executed two notes for these sums. Lessee operated said premises until February 19, 1955, on which date lessors delivered to lessee a letter in which lessors informed him that “You are temporarily relieved from the direct management of the Paradise Point Villas and Port Paradise Hotel until we can have a meeting to interpret the terms of our contract.” Lessors further stated in said letter that “I temporarily assume responsibilities of the inventory and cash on hand as of 4:00 P.M., Saturday, February 19th.” The lessee apparently allowed lessors to take possession of the demised premises on the date set in said letter.

On March 20, 1955 the respondents filed a bill of complaint in the court below against the lessee, praying that the court “Enter a Declaratory Decree or Judgment and adjudicate the rights, status and equitable and legal relations between the parties to this suit * * * and the plaintiffs pray for an[y] additional alternative, coercive, subsequent, or supplemental relief which the parties to this suit are entitled to under a construction of the instrument attached to this complaint, marked ‘Exhibit A’ and likewise all of the surrounding facts, * * ” There was attached to the bill of complaint as Exhibit A a copy of lease, which copy of lease defendants admit in their answer to be a copy of the lease executed and delivered by and between the parties.

To-the bill of-complaint filed’by-respondents the petitioner filed an answer in which he incorporated a- motion, to dismiss and'a ■counterclaim. The respondents filed a motion to strike counterclaim. On October-12, 1955, but as of August 19, 1955 nunc pro tunc, the petitioner filed a motion to transfer the cause to the law side of the court.

■The Circuit Court on hearing denied defendant’s motion to dismiss' the bill of complaint,- granted the plaintiffs’ motion1 t'o 'strike defendant’s counterclaim and- denied defendant’s 'motion 'to transfer -the cause t'o the law side of the court.

The petitioner complains that the Circuit Court erred on two grounds: 1. In denying defendant’s motion to transfer the cause to the law side of the court. 2. In granting plaintiffs’ motion to strike defendant’s counterclaim.

It should first be said that it appears to us that the terms of the lease between the parties are clear and unambiguous, nor do the plaintiffs in the bill of complaint allege with any particularity what doubt exists as to their rights or status or which terms of the lease cause them to be in doubt as to their rights, status or relationship with the defendant. No sufficient allegations are made in the complaint which would indicate that the parties abandoned or modified the written lease agreement.

The real dispute between the parties appears to be who breached the lease first, the amount of damages due for the breach, and the amounts due for rent and other sums required to be paid by the respective parties under the terms of the lease.

This Court has said before that doubt, because of disputed questions of fact alone, is not sufficient to make available to litigants the provisions of the Declaratory Judgments Act, F.S.A. § 87.01 et seq. Halpert v. Oleksy (Fla.), 65 So.2d 762, and cases cited therein.

We find no questions of doubt as to the rights of the parties set forth by the pleadings and the record, such as should enable the plaintiffs below to proceed under the Declaratory Judgments Act and are of the opinion, therefore, that the court below should have granted the defendant’s motion to transfer this cause to the law side of the court.

It is apparent to us from the pleadings that the claim asserted by defendant in his counterclaim arose out of the transaction or occurrence that is the subject matter of the action initiated by plaintiffs. The claim did not require the presence of third parties for its adjudication. We must conclude that it was a compulsory counterclaim under our construction of Florida Rules of Civil Procedure, Rule 1.13, Vol. 30 F.S.A. The counterclaim stated a cause of action. It was error to strike’ it.

The petition for certiorari is granted. Those portions of the order attacked are quashed. The cause is remanded for entry of a proper order in conformity with this opinion.

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


author: LOTTINGER, Judge.

text:
    PRICE-DUNHAM-FENET BRICK MANUFACTURING COMPANY, Inc., v. Blanchard H. REEVES.
    No. 4146.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.
    Joe J. Tritico, Lake Charles, for appellant. ■ '
    Lawes, Cavanaugh, Hickman & • Brame, Lake Charles, for appellee.
   LOTTINGER, Judge.

This matter and the companion suit entitled Travelers Insurance Company v. Reeves, La.App., 85 So.2d 639 are the result of a certain automobile.collision which occurred in the .Parish of Calcasieu on or about the 21st.day of October, 1954. In the suit filed by Price-Dunham-Fenet Brick Manufacturing Company, Inc., the plaintiff seeks the sum of .$627-96, being the amount of damages incurred plaintiff’s truck which was involved in the acqident, together with the sum of $380 for the-loss of the use of the truck.. In the other suit, the plaintiff, The Travelers Insurance Company, seeks to recover the sum of $1,139.70, being the amount paid by it to Joseph M. Decluet in workmen’s compensation benefits. Both suits were consolidated for purposes of trial and this appeal.

The petition alleges that on or about October 21, 1954, at approximately 9:20 A.M., an employee of the Price-Dunhám-Feriet Brick Manufacturing Company, Inc., Joseph M. Decluet, was driving'a 1948 Diamond T truck, owned by petitioner and used in its business, in an easterly direction on U. S. Highway 90 on the Calcasieu River Bridge. west of Lake Charles, Louisiana. The further allegation is made that the said employee, Decluet, was driving the truck at the time at a safe and reasonable speed in his proper lane of traffic when he was suddenly struck from the rear by a 1954 Plymouth Sedan automobile owned and driven by the defendant. Negligence is pleaded against Reeves in that he was not keeping -a proper lookout, did not have his vehicle under control, and was traveling at an excessive and dangerous rate of speed. Alternatively, -the plaintiff claims that as the truck was struck from the rear by the defendant, the latter had exclusive knowledge of the facts succeeding the accident and that thus the doctrine of res ipsa loqui-tur is applicable and should be applied.

The defendant’s answer admits that the plaintiff’s truck was struck from the rear by the Plymouth Sedan owned and driven by the defendant on the day and at the time alleged, but generally denies the remaining allegations of the petition. The answer then goes on to allege that immediately prior to the collision the defendant was proceeding in an easterly direction in his right-hand lane of traffic on the upgrade of the Calcasieu River Bridge following at a safe distance behind a certain panel truck. It is then set out that at a point approximately half way up the west side of the Calcasieu River Bridge (which is a four-lane highway) the panel truck which the defendant had been following suddenly turned into the left-hand lane of traffic used by vehicles traveling in an easterly direction and that the defendant continued in his lane for approximately 30 feet before he saw the plaintiff’s truck which was stopped in the right-hand lane of traffic some 10 or 15 feet ahead of him. The defendant avers that he was unable to see the plaintiff’s truck beforehand because of the fact that there was a large fire below and to the south side of the bridge which caused a great volume of smoke which had formed a dense screen along the south lane of traffic on the bridge. The further allegation is made that the smoke screen obscured the plaintiff’s truck until it was too late to avoid the accident. Negligence is pleaded against the driver of plaintiff’s truck in stopping in his lane of traffic within the smoke screen and defendant reconvened for the amount of $5,304 representing the physical and property damage sustained by him.

It was stipulated in the Court below that the damages sustained by the Price-Dun-ham-Fenet Brick Manufacturing Company, Inc. insofar as damage to the truck was concerned, amounted to $627.96, and that the compensation benefits expended by the Travelers Insurance Company for Joseph Decluet amounted to $1,139.70. It was further stipulated that the defendant expended the amount of $304 for doctor and hospital expenses and repairs to his automobile. Following trial on the merits, judgment was rendered in favor of the Price-Dunham-Fenet Brick Manufacturing Company, Inc. for $627.96 and in favor of the Travelers Insurance Company for $1,-139.70. Following the denial of an application for a rehearing, the defendant effected suspensive appeals to us in both cases.

The issues presented are purely factual and, unfortunately, as so often the case, the testimony is in direct conflict. According to Joseph Decluet, the driver of the truck, the defendant was first noticed by him when he was about 100 feet from the top of the bridge at which time the defendant was at the foot thereof. He stated that the defendant at that time appeared to be going very fast. According to him, the accident occurred when he was about fifty feet from the top of the bridge in his own right-hand lane of travel driving at a speed of between 20 and 25 miles per hour. On cross-examination, he testified that he never observed any automobiles between his truck and defendant’s car. He stated further that there was a fire and some smoke but not enough smoke to have obstructed vision in either a westerly or easterly direction on the approach to the bridge and further that the smoke was not within the immediate vicinity of where the accident took place.

John Decluet, a brother of Joseph De-cluet, testified that at the time of the accident he also was employed by the Price-Dunham-Fenet Brick Manufacturing Company, Inc. and was riding on the right in the truck- cab. This witness stated that they were proceeding east in their right-hand lane of traffic but that he never saw the Reeves automobile before the accident. He stated that at the time of the accident his brother was proceeding at approximately 20 to 25 miles per hour. On cross-examination he testified that when they were about half way up the bridge, he noticed a fire, and that the truck at that time was going maybe 5 or 10 miles faster than it was when the accident actually' occurred. According to him, the accident occurred in the vicinity of where the smoke was on the bridge,, but, as he termed it, there “wasn’t much smoke.” On redirect examination, he. reiterated .that there was .not too much smoke and added that one could see all the way from the bottom of the bridge to the top..

The testimony of defendant, Blanchard Reeves, is 'in complete conflict with that given by the two witnesses mentioned above. According to this witness, he was proceeding at a speed of approximately 40 miles per hour'as he approached the west end of the bridge, at which time there was a panel truck immediately in front of him in the same lane of traffic. Reeves stated that he did not immediately pass this truck but continued to follow it as they both went up the bridge. He stated that at the locale of the accident, there was a lot of smoke which obscured his vision and which he could not see through. He testified that as he traveled up the bridge,, he followed the panel truck at á distance’of from 6 to 10 feet; that the truck entered the smoke first arid that upon so doing it slowed down and then cut over to its left. According to him, he traveled only a few feet after the truck turned and then’, for the first time, saw the truck when it was too late to stop. This witness testified positively that the smoke was dense, that the plaintiff’s truck was stopped and that its left door was open.

There were several other witnesses who testified, but as none of them actually saw the accident, we are of the opinion, as was the trial judge, that their testimony is of little value. There is no physical evidence in the record and to resolve the issue presented we must base our opinion entirely upon the credibility of the witnesses. The trial judge believed the testimony given by the DecJuet brothers, who, incidentally, were no longer in the Price-Dunham-Fenet Brick Manufacturing Company, Inc.’s employ at the time of the trial, and we are not in a position to state that in so doing, he committed manifest error. We are like-vrise of the opinion that the density of the smoke at the place of collision was not such 'as to impair the vision of defendant when we consider the height of the bridge and the source of the smoke. The defendant testified that the panel truck he was following at'a distance of 6 to 10 feet moved into the left-hand lane of traffic in order to pass around plaintiff’s- truck. .Assuming that this' -panel truck was actually in front of defendant, if the driver of the panel truck was able to see and pass around the Price-Dunham truck, then the same opportunity was or should have been available to defendant. It is clearly seen, therefore, that- smoke did not cause- the driver of the panel truck to run into- the rear end of plaintiff’s truck nor did an alleged stopped vehicle cause the panel truck any difficulty whatsoever. We must conclude, therefore, that it was the excessive' speed, failure to observe what he should have observed and the act of. following the panel truck too closely on the part of defendant that proximately caused the accident.

Further, assuming for the sake of argument that defendant’s version -of this accident is true, we are of the opinion that the case would be similar to that of Thiaville v. Toups, La.App., 25 So.2d 361, 362 wherein the plaintiff suddenly encountered a thick fog bank and stopped her car. While she was-parked in the fog, the defendant struck her from the rear and Justice McCaleb, the then organ of the Court, found and stated as follows:

“An examination of the record of the- case exhibits beyond any doubt that Toups was guilty of the grossest sort of negligence. The accident occurred on the Gentilly Highway on a dark and foggy morning. Gentilly Highway is the main artery for vehicular traffic leading from and into the city of New Orleans to and from the east. It is a wide, paved, four lane highway separated by a neutral ground. There are two outbound lanes and two inbound lanes. On the morning of the accident, plaintiff, accompanied by her sister and two colored workmen, was travelling east on the highway. As she neared ‘Nine Mile Post’, she encoun- ■ tered a heavy fog which was so dense that her visibility of the roadway-was obscured. Confronted by this fog, she stopped her. car either on the right-hand, shoulder- of- the roadway or. partially thereon, where she remained, with her lights burning, for approximately ten or fifteen minutes. While thus parked, Toups, driving his automobile' into the fog at an admitted speed of 35 miles an hour, crashed1 into the -rear of plaintiff’s car. The impact, was, so violent that,, as a result thereof, plaintiff’s car was propelled forward from .its parked position a distance of between 75 and 100 feet, where it finally came to rest against a fence on' the right-hand side of the road and sustained damages amounting' to $597.38. The' Toups . car-- was. also damaged-, to the extent of $443.12.
“The only' explanation offered .by Toups for the. accident is' that he was suddenly confronted with a blanket of fog and that he struck plaintiff’s car while he was attempting to bring- his automobile to a ■ stop. This weak .excuse can avail .Toups naught for-he owed a legal duty to the public to have his car under control and to refrain from operating it at a speed, and in such manner as -might cause injury to ■ others. . ■
“We further fail to see any .merit in defendant’s plea that plaintiff was guilty of contributory negligence.' The record reveals to our satisfaction that' she followed a 'most reasonable course and' acted with prudence in stopping her car when she drove into the heavy' fog. She says (and three other' witnesses corroborate her) that her car was brought to ‘a stop on the shoulder of the road. Toups denies this and asserts that'it was stopped in the right; or slow lane, of the highway. The judge evidently accepted plaintiff’s tes- . timony on this disputed : fact and we .think he was justified in so doing.
“Apart from this, even though we-thought 'that Toups’ testimony (that-plaintiff’s car was parked in the slow traffic lane) should prevail, this'would not furnish, df itself, a sufficient reason to condemn plaintiff as negligent. Since the record discloses that the fog was. very thick and that vision was limited to a few feet, plaintiff manifestly encountered considerable difficulty in determining the width, of the shoulder of the road and it might have been exceedingly hazardous for her to proceed too far thereon. Hence, if .she failed to park entirely on the shoulder, we cann.ot -regard her error as legal fault.
“Moreover, even if'-We believed that plaintiff parked wholly in the roadway and was at fault in so doing, her negligence in this respect had--become pás-sive at-the time of the accident. In such ■ case, the^ doctrine of last clear chance would'be applicable under the wel-l-estabished' jurisprudence of this state. See Raziano v. Trauth, 15 La.App. 650, 131 So. 212; and O’Rourke v. McConaughey, La.App., 157 So. 598; and authorities there ’ cited.” ’ .

It is apparent that the accident was caused solely by the negligence of defendant and he, must accordingly be held liable. Though the judgment of the trial court did not award to the plaintiff Price-Dunham-Fenet Brick Manufacturing Company, I'nc. ' the $380 for loss of use of the truck, inasmuch as the plaintiff has neither appealed nor answered the' appeal, we are not called upon to consider this item of damages. : -

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

Judgment affirmed;


text:
    The TRAVELERS INSURANCE COMPANY v. Blanchard H. REEVES.
    No. 4147.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.
    Joe J. Tritico, Lake Charles, for appellant. ' '' - •
    Lawes, Cavanaugh, Hickman , & Brame, Lake Charles, for appellee.
   LOTTINGER, Judge.

For' the reasons assigned in the case entitled Price-Dunham-Fenet Brick Mfg. Co., Inc., v. Reeves, La.App., 85 So.2d 635, the judgment appealed from is affirmed.


author: ELLIS, Judge.

text:
    Clarence MERSHON et al. v. R. V. CUTRER et al.
    No. 4133.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.
    ■1 Broyles & Funderburk,. Leesvil-le, H. N. Knight, Jennings, for appellants.
    King, Anderson & Swift, R. W. Farrar, Jr., Lake Charles, for appellees.
   ELLIS, Judge.

At -ahout,5 A.-M:. on the 13th of March, 1954 the defendant, with two young ladies as , his guests, was traveling east on highway 190 just west of the town of Elton when -he collided with an automobile, being driven in a westerly direction on said highway by the plaintiff Rizley, with whom the plaintiffs Mersh'on and Meade were riding as1 guest passengers. Also a passenger was First Class Sgt. Kirk, who filed no suit.

As a result of the collision the three suits were filed against R. V. Cutrer and his public liability insurer, the All State Insurance Company. The’' issues' in all are essentially the same except as to -quantum.

It was alleged'that the head-on collision occurred in-the plaintiff’s-lane of. travel and was caused solely by the -.negligence of R. V. Cutrer, whereas the answer of the. defendants admitted the occurrence of the ac-cídent denied any negligence on the part of .the defendant Cutrer and, in the alternative, plead contributory negligence on the part of plaintiffs.

The Lower Court, in a well written opinion which considered in detail the evidence .and with a full discussion of the law, rendered judgment dismissing plaintiffs’ suits at their costs. It is from this judgment that the plaintiffs have appealed.

The pertinent facts shown by the record .are as follows: The defendant, R. V. Cut-rer, got off from work at his job with Jefferson Chemical Company at , Port Neches, Texas, at approximately 10:45 P.M. on Friday, March 12, and went to his Rome and slept from about 11 P.M. to 2:30 A.M. March 13, and then drove to Groves, 'Texas, where he picked up his two passengers, viz.: his cousin, Flora Jean Miller •and her friend, Betty Webb. They left the latter town at about 3 A.M. going to KLent-•wood, La., and it is shown that both young ladies were awake until they reached Kin■der, La., and slept from then until the accident which occurred at approximately 5 A.M. either just inside or just outside the recently extended western city limits of the Town of Elton. The Lower Court found mo negligence as to either party resulting from excessive speed at the time of the accident, and with this finding of fact, we .agree. It was dark up to the time of the .accident and both vehicles had their headlights burning. While visibility was apparently good, it had been drizzling rain periodically.

The Lower Court has described Highway 190 in detail in the vicinity of the collision and we quote:

“This highway is an 18 foot wide concrete road at the point where the headon collision occurred. However, .about 2S0. feet west of the point of impact, the highway was of a different width. It seems that in 1950 some culverts were installed under this portion ■of Highway 190. At that time, for some unknown reason there was an ■extra concrete strip added to both sides of the road. These strips are partly shown in exhibits D-2 through and including D-5. These extra concrete strips are about 500 feet in length and there are no warnings posted to show the beginning and end of the strips. The extra strips do not start or end gradually, but both at the beginning and end, each strip is about one foot wide. From that point it widens so that in the middle, each strip is about two feet wide. This makes Highway 190 approximately 22 feet wide at the middle of the 500' strips. Then the highway narrows for the next 250 feet so that at a point approximately 250 feet east of the center of the. strip (also 250' west of the point of impact), Highway 190 is 20 feet wide. There the strip suddenly ends so that the concrete portion of Highway 190 from that point on is only 18 feet wide. At the end of the 20 foot wide portion of the highway, there is not necessarily a drop off, for the dirt shoulder of the highway gives Highway 190 an additional width of approximately six to eight feet on each side. However, all cars traveling so that the right wheels are on the added concrete strip, run off the concrete where the Highway suddenly narrows and the dirt shoulder usually presents a slight drop off at that point. On the morning when this accident occurred, these dirt shoulders ‘were very wet and slippery,’ according to the State Police.”

The only parties who actually saw the accident were the drivers of the two cars involved, however, Sgt. Rizley could not estimate how fast he had been or was driving at the time of the accident, would not be specific as to whether he had been drinking or not and, as the District Judge stated, “did not even know where he and his passengers, has been since they left Camp Polk at 9 P.M. Friday night.” The only thing that this driver was certain about was the fact that he was in his lane of travel at the time of the collision, and that it happened so fast that • it was impossible for him to avoid the accident.

Of the defendant Cutrer’s testimony, the district court found the following:

“ * * * Defendant explains, the details leading up to the accident as follows: ‘Well, we came through Kinder, and as soon as we got around the curve, and out of the city limits of Kinder we started meeting trucks, and as we were meeting these trucks, they were on their side of the road, there’s no doubt, but beings the pavement was narrow, I presume they was holding as close to the center as they could, anyway it made the road rather crowded, the way it was built, we came on. to this spot where I noticed I had a little more room to move over. So I moved over. It was unbeknowns to me that the road had been widened in that particular spot, and there wasn’t any markers at all placed there, and when the pavement stopped at a square end, well I ran off the square end of the pavement. That extra addition that had been added.’

According to defendant, it was' drizzling while he drove from Kinder to Elton and the headlights of these trucks cut his vision down. He estimated that he was driving between 45 or 50, but didn’t check his speedometer after Kinder. At the time Cutrer reached this widened part of the road, there was a truck coming and he eased over on the widened road to give the truck more room. After defendant ran off the square end of the pavement his car skidded out of control. He doesn’t know which lane of traffic he was in at the time of the collision. It is known that plaintiff’s vehicle remained heading west on the highway in its proper lane of traffic after the accident. Defendant’s vehicle was against a tree partly in the north ditch and partly on the north shoulder of the road. The State Troopers expressed their opinion based on the location of the cars and the debris that the point of impact was in the north lane of traffic. It is to be noted that some of the debris had been picked up and other bits had been scattered by passing traffic which went through the south lane before the Troopers arrived. This court finds as a matter of fact that the point of impact was in the plaintiff’s lane of traffic — the north lane.”

In view of the fact that the collision occurred in the north or westbound traffic lane, which was the plaintiffs’ lan'e of travel, it is argued by counsel for plaintiffs and conceded by counsel‘for defendant and followed by the District Judge that the plaintiffs had shown a prima facie case of negligence on the part of defendant Cutrer. The Lower Court, however, found that the defendants had refuted the prima facie showing of negligence by establishing a legal.reason why the vehicle driven by Cutrer was on the left-hand side of the road, citing the following authorities:

“Blashfield, Cyclopedia of Automobile Law and Practice, Volume 4, Part 2, Section 2702, at pages 205-208 which states:
‘As supplemental to, or a corollary of, the rule laid down in the preceding section, it may be stated as a rule of general application that, while a presumption of negligence arises against a driver of a motor vehicle found on the wrong side'of the road at the time of a collision with another traveler, which, if not excused by the circumstances shown, is sufficient proof to support recovery by one injured by such violation, and while an unexplained collision between meeting vehicles on a highway is conclusive .of carelessness against the party on the' wrong side of the middle of the traveled part of the road, such a presumption is rebuttable and only casts the burden of justifying his position upon the driver upon the wrong side of the road.
“ ‘A motorist’s presence on the wrong side of the road is excusable if, without fault on his part, his machine skids - across the center line of the street, or he turns to avoid a.threatened. collision, but usually it is a question of fact for the jury whether a motorist is negligent in being on the wrong side of the street, where evidence is presented in rebuttal of the presumption arising by such fact.’
“Huddy, Cyclopedia of Automobile Law, Volume 3-4, Se-ction 109 at page 1-76, which reads as follows:
“ ‘The failure of the driver of a motor vehicle to keep to the right side of the highway is excused where, without fault on his part, the machine skids across the center line of the road, but where skidding results from negligence, the driver is liable.’
“Giglio v. Toups, [La.App.] 1st Cir., 1949, 192 So. 553—The fact that a car suddenly pulled in front of the driver, making him apply his brakes on slippery pavement, was a justifiable reason for skidding to the left side of the road;
“Hunt v. Jones, 1st Cir., 1930, [14 La.App. 520] 130 So. 138—The fact that a car stopped suddenly in front of a defendant, as a result of which defendant skidded to the left, was a justifiable reason so as to rebut the inference;
“Smith v. Interurban Transportation Co., 2 Cir., 1927, 5 La.App. 704—A car pulling out in front of a bus from a private driveway, causing the bus to pull to the left, constituted a justifiable reason;
“Smith v. Rouche, [La.App.] Or. Cir., 1934, 153 So. 485 [487]—A car skidding to the left side of a slippery surface which the driver should not have anticipated, sufficiently explained his presence on the left hand side of the road;
“Vaccaro v. Favrot, Or.Cir., 1929, [13 La.App. 120] 125 So. 296, 297, in which the following language is found:
“ 'The excuse which is offered is that, as the vehicles were approaching each other, each on its own side of the road, a small car came out from behind the plaintiff’s and passed it in the same direction; that the driver of the defendant’s autotruck, thinking to avoid' collision with the small car, which seemed imminent, put on his brakes strongly and suddenly; that it was raining at the time, and the pavement was wet; and that the application of the brakes caused the truck to skid over against the plaintiff’s car.
“ ‘There is no doubt that, if the facts would be found as the defendant’s witnesses state them, the defendant’s driver would be free of fault, for his acts would, in that case, have been forced upon him by necessity.' ”

The Lower Court then concluded that the defendant’s presence on the north side of the highway was caused solely by the termination of the portion of the pavement upon which his right wheels had been traveling, when “the highway ran out from under him.”

The District Judge then found that there was no negligence upon the part of defendant Cutrer by virtue of his having failed to observe the end of this concrete slab, being controlled by the exception to the general rule that one is required to have his vehicle under such control as to be able to stop within the distance covered by his headlights, and therefore, one who strikes a discernible object on the highway at night is presumed to be guilty of negligence. The Lower Court very aptly cited the case of Hogg v. Department of Highways, La.App., 80 So.2d 182, 185, and quoted therefrom as follows, and stated that the present case is distinguishable from those cited by plaintiff on the same basis explained in the Hogg case:

“A legal distinction is found in a motorist’s liability between a case where the object projects above the surface of the highway and a case where the cause of the accident is a hole or depression below the surface. In either case an important factor is whether or not the accident occurs at night. Arceneaux v. Louisiana Highway Commission, La.App. 1941, 5 So.2d 20. In Moore v. New Amsterdam Casualty Company, La.App. 1951, 52 So.2d 766, the court stated:
“ 'It is the duty of the operator of an automobile to maintain a speed sufficiently slow and to have such control of his automobile that he can stop within the distance in which he could plainly see an obstruction or danger ahead but the rule has no application where the motorist has no reason to anticipate or expect that a dangerous situation will suddenly emerge in front of the vehicle.’
“Hogg testified that he did not see the defective condition of the bridge until he was within eighteen feet of it and when it was too late for him to avoid the accident. He said in attempting to avoid the piece of concrete he struck the hole. The pavement was •wet at the time and he was traveling about forty-five miles per hour. The weather was clear at the time. The record, in our opinion, does not indicate Hogg was traveling at an excessive rate of speed under the existing conditions, or that he should have observed the hole in the pavement sooner.” (Emphasis added by Lower Court.)

See also Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L.R.A.1917F, 253; General Securities Co., Inc. v. City of Hammond, 11 La.App. 306, 123 So. 399; German v. City of New Orleans, La.App., 3 So.2d 181; Reeves v. State, La.App., 80 So.2d 206.

In German v. City of New Orleans [3 So.2d 182], supra, the Court stated:

“Counsel for defendant cites several cases in which it has been held that the driver of an automobile is negligent ■ when he operates it at such speed as to render it impossible that it be stopped within the distance illuminated by its headlights. But this rule is not without exception, and it has never been held that under no circumstances may an automobile owner recover for damage sustained by his car if it appears that the operator could have stopped before striking an obstruction, or before running into a hole in the roadway. All of the surrounding circumstances must be investigated, and from them it can be determined whether the failure of the driver to stop constituted negligence on his part. In this connection we have always recognized the distinction between striking an obstruction extending above the surface of the highway, which obstruction should be illuminated by headlights, and the running into a hole or depression in the road against which the lights did not shine and which might be no more noticeable than a shadow on the surface of the road.”

The District Court also cited the following cases:

“Stafford v. Nelson Bros., 1st Cir. 1930, 15 La.App. 51, 130 So. 234—Driver relieved of negligence in striking an excavating machine by reason of being blinded;
“Evans v. Kirby, [La.App.] 1st Cir. 1951, 53 So.2d 412—In this case, the driver was not found negligent in colliding with an unlighted truck on the road, by reason of the fact that he was blinded by oncoming lights;
“Great American Indemnity Co. v. Cormier, 5 Cir., 1951, 187 F.2d 107—Again driver relieved of negligence in colliding with unlighted truck, where he was blinded by oncoming lights;
“Carter v. LeBlanc Lumber Co., [La.App.] 1st Cir. 1948, 37 So.2d 471—The Court of Appeals found that the character, nature and size of the object must be considered, and found that the driver was not negligent in colliding i with an unlighted truck;
“Gaiennie v. Cooperative Produce Co., Inc., 1940, 196 La. 417, 199 So. 377—his is a Supreme Court decision relieving the driver of negligence in colliding with an unlighted truck, although he was temporarily blinded by oncoming lights, and which is cited often by the appellate courts.
“Dodge v. Bituminous Casualty Corp., [La.App.] 1st Cir. 1947, 33 So.2d 95 — Another case in which driver was not negligent in striking an unlighted truck.”

and logically reasoned that if the law excuses a party from negligence in striking a truck or trailer under the facts and circumstances shown in the above cited cases, that the defendant Cutrer cannot be held negligent under the facts in this case for failing to discern the unmarked sudden end to a concrete strip which had been added to the highway and which had been left unmarked as to any kind of sign to warn or give notice to the public of its ending. We believe that the .District Judge was' correct in his finding of fact, his application of the proper law and his conclusions therefrom. We will, however, briefly discuss the objections to the facts and conclusions reached by the Lower Court made by counsel for plaintiffs in their brief on appeal.

It is contended that the trial court was in error in holding that the sole cause of the accident was a “peculiar road condition” or a road condition which Cutrer had no way of anticipating. They point to the testimony of Cutrer to the effect that he did not know what happened and a denial that his car ever actually left the highway, and the fact that' Cutrer stated that he noticed he “had more room”, yet he contended that he did not know the road had been widened. It is true that Cutrer could not have known what happened until after the accident, and there is no testimony to refute Cutrer’s version of what happened. It is clear that the accident was caused by his absolute inability to see the end of this narrow strip of pavement, and under the facts such failure did not constitute negligence on his part. His testimony that he had more room and that he did not know the road had been widened is immaterial for even had he realized that the road had been widened he would not be chargeable with the knowledge of expectation that it would suddenly and abruptly end without any warning or markers. He could have accepted the widening of the road with the same assurance that he accepted the width of the highway from Kinder to the point of the accident.

Again counsel for plaintiffs points to Cutrer’s statement that he first observed plaintiff’s vehicle when they were “right on one another”, yet in his discovery deposition he stated that he had first seen the plaintiff’s vehicle when it was approximately 500 feet behind an oncoming truck, and counsel argues that this contradiction is especially important in view of his testimony that he could not see the end of the added “strip” because of a truck which he was meeting “just as the pavement ended.” Whether he was blinded by truck lights or not, under the conditions, the ending of this narrow, added, concrete strip was not so discernible that it would constitute negligence on the part of Cutrer. for having failed to see it, and particularly is this true under the jurisprudence heretofore cited.

Counsel for plaintiffs further argues that there was no proof other than the testimony of Cutrer that he ran off the road where the strip of concrete ended. Cutrer’s testimony is correctly accepted by the District Judge as being true for there is nothing in the record to dispute it and no reason shown to disbelieve it.

It is next argued that Cutrer gave no good reason as to why he was traveling “tight wire” fashion on this narrow strip, in other words, they state that Cutrer testified he had “more room to move over” so he “moved over.” It is argued that Cutrer could not attribute his moving over to a sudden emergency. It is .not necessary for a sudden emergency to exist before one can use the full width of the pavement in his lane of travel. From the facts, it was perfectly natural, when the defendant was passing these trucks or when he saw the plaintiff’s vehicle approaching, for him to pull further away from the center line. He had every right to use the added strip and not to expect it to end abruptly as it did without any warning signs.

This added strip constituted a part of the concrete highway and motorists could and would be expected to use it.

Finally, counsel for plaintiffs contend that it was not shown that there was actually a defect in the highway and, in the alternative, that such defect if it existed was a proximate cause of the accident. The record is full of facts justifying the conclusions reached by the trial judge and his judgment is clearly not manifestly erroneous, in fact, it is, in our opinion, correct. Not only do we have the testimony of the witnesses that the defect did exist and had caused other accidents but there are pictures which show this dangerous defect where the added concrete strip abruptly ended without warning, allowing the right wheels of a motor vehicle to somewhat drop or at least run onto the shoulder of the highway. In the present case it would appear that the front wheel ran off the end of this added concrete strip and as a result the rear wheel struck the edge of the original 18 foot concrete slab causing the car to veer suddenly into the path of the oncoming automobile of the plaintiffs.

Negligence and liability in this case, if any, must be charged to the State of Louisiana, and it would be necessary to obtain an Act of the Legislature before such a suit could be filed.

For the reasons assigned, the judgment of the lower court is affirmed.


text:
    Levert R. RIZLEY v. R. V. CUTRER et al.
    No. 4134.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.
    Broyles & Funderburk, Leesville, H. N. Knight, Jennings, for appellant.
    King, Anderson & Swift, R. W. Farrar, Jr., Lake Charles, for appellees.
   ELLIS, Judge.

For the reasons this day assigned in the case of Mershon v. Cutrer, La.App., 85 So.2d 639, it is ordered that the judgment of the District Court be affirmed.


text:
    William F. MEADE v. R. V. CUTRER et al.
    No. 4135.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.
    Broyles & Funderburk, Leesville, H. N. Knight, Jennings, for appellant.
    King, Anderson & Swift, R. W. Far-rar, Jr., Lake Charles, for appellees.
   ELLIS, Judge.

For the reasons this day assigned in the case of Mershon v. Cutrer, La.App., 85 So.2d 639, it ordered that the judgment of the District Court be affirmed. . .