text:
    Ronald ROSE, doing business as Florida Real Estate Exchange, Appellant, v. Charles L. YUILLE and Eleanor Yuille, husband and wife, Appellees.
    Supreme Court of Florida. Division A.
    May 30, 1956.
    Rehearing Denied July 9, 1956.
    Sommer, Frank & Weston, Miami Beach, for appellant.
    Wm. J. Pruitt, Miami, for appellees.
   TERRELL, Justice.

Appellant, a real estate broker, alleged he entered into a contract with appellees to sell certain real estate in Monroe County. Contending that he produced a purchaser, ready, able and willing to buy at the consideration agreed on and that appellees refused to sell, appellant instituted this suit to recover damages against defendants for -their refusal to comply with the contract. In their amended answer defendants denied the material allegations of the complaint or that they ever employed plaintiff to sell their lands. A pretrial conference was ordered for February 4, 1955, and the cause was set for trial before the court without a jury February 21 following the pretrial conference.

At the pretrial conference the court ordered the plaintiff to reveal the names of all witnesses he expected to question at the trial. Later the plaintiff learned of a material witness and by his counsel filed “Notice of Disclosure” with Clerk of Circuit Court and mailed copy thereof to defendants giving the name of said witness as C. L. Macurda. The cause came on for trial as set, during the course of which the plaintiff called the witness C. L. Macurda to the stand. No objection was made to the witness testifying. Plaintiff advised the court that at the pretrial conference the name of the witness was not familiar to him, however, several days before the trial by “Notice of Disclosure,” defendants’ counsel was notified that the witness would be called. The court refused to permit the witness to testify stating, “I am determined to prevent any surprises at trial.” At the conclusion of the trial, the court entered judgment for defendants from which this appeal was prosecuted.

The point for determination is whether or not the trial court committed error in refusing to permit the witness C. L. Ma-curda to testify at the trial.

Circumstances might arise in which such a refusal would have been an abuse of discretion but not so in this case. While it is shown that the name of the witness was not disclosed at the pretrial conference as the court directed, it is shown that the plaintiff acted promptly to secure attendance of the witness when he was located; he gave appellees’ counsel notice foirr days before the trial and told him he was not advised of Macurda’s whereabouts at the time of the pretrial conference. In his notice he did not advise counsel, the court or defendants what Macurda would testify to, whether or not his testimony was material or would have been admissible if proffered. Since the testimony of Macurda was not proffered at any stage of the proceedings, there is no way to tell whether or not its rejection was injurious to the plaintiff.

In his “Notice of Disclosure” counsel for plaintiff should have advised the court and opposing counsel what Macurda would testify to, that his testimony was material and essential to prove his case and that there could be no lawful objection to its introduction in evidence. This is substantially the practice followed in moving for continuance account of the absence of a material witness and should have been followed here.

Failing in this, in view of the fact that the trial court has a broad discretion in conducting a trial, we find no abuse of discretion in rejecting Macurda’s testimony. The judgment appealed from is therefore affirmed.

Affirmed.

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


source: Caselaw Access Project

author: TERRELL, Justice.

license: Public Domain

text:
    Rose SONN and William Sonn, her husband, Appellants, v. SWINDAL-POWELL COMPANY, a Florida corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    May 25, 1956.
    Rehearing Denied July 9, 1956.

      Wicker & Smith, Miami, for appellants.
    Brown, Dean & Hill, Miami, for Swin-dal-Powell Co.
    Roland Granat, Miami Beach, for World Wide Liquor Co.
   TERRELL, Justice.

Rose Sonn, joined by her husband, William Sonn, instituted this action against World Wide Liquor Company and Swindal-Powell Company, Florida corporations, jointly and severally to recover damages for personal injuries. The amended complaint alleges that defendants failed to maintain certain wooden stairs owned and used by them on their premises in a safe and stable condition and that each of them knew or, in the exercise of reasonable care, should have known of the unsafe condition of said stairs. Account of which negligence Rose Sonn was on November 23, 1953, caused to fall and suffer serious and permanent injuries.

The wooden stairs were portable and were carried from place to place wherever needed. At the time Rose Sonn was alleged to have been hurt they were placed against a loading platform at the rear of a warehouse which was leased by both defendants. The platform was about four feet high, extended all the way across the rear of the warehouse, had concrete steps at each end and was used by both defendants. The amended complaint proceeds on the theory that defendants had a joint duty to keep the platform and wooden stairs in safe condition though it is shown that the areas of the platform occupied or used by each were separate and distinct. There was no wall or partition allotting or defining each defendant his part of the platform, nor is there any showing that it was to be used by them in common, or that either tenant had authority to use any portion of the platform except that opposite or adjacent to the portion of the warehouse leased by each defendant.

Answers were filed by both defendants denying the material allegations of the complaint, charging contributory negligence on the part of plaintiff in that she failed to use the concrete steps at either end of the platform that were provided for invitees of defendants; that Mrs. Sonn was a trespasser on the premises of World Wide Liquor Company and that there was no actionable negligence on the part of Swindal-Powell Company. Interrogatories were propounded to co-defendants and depositions of Mr. and Mrs. Sonn were taken. On the basis of the answers, the depositions and the interrogatories, both parties to the cause moved for summary judgment. The motion of Swindal-Powell Company was granted but that of World Wide Liquor Company was overruled. This appeal is from the order granting summary final judgment as to Swindal-Powell Company.

Three points are urged for determination but they read like the old pattern of casting counts in an indictment — one point repeated three times. The real question is whether or not Swindal-Powell Company owed any duty to Mr. and Mrs. Sonn to keep the wooden steps from which Mrs. Sonn is said to have fallen in a safe condition.

In granting summary final judgment in favor of Swindal-Powell Company, the trial court necessarily found that it was not guilty of actionable negligence as a matter of law. It is perfectly clear that Mrs. Sonn’s alleged injury was caused by falling from the wooden stairs or that the stairs collapsed and she fell; that said stairs were owned by World Wide Liquor Company; that they were portable and could he moved from place to place to mount the platform or other part of the premises anywhere desired; that Swindal-Powell Company did not own or have any interest in or control over them; that they were some distance from that part of the platform under control of Swindal-Powell Company at the time Mrs. Sonn fell and that Swindal-Powell Company had no reason to think or know that Mr. and Mrs. Sonn would use said wooden stairs to get on the platform. Under such circumstances we can see no reason why Swindal-Powell Company would be expected to give appellants notice of hidden defects in the wooden steps.

Appellants base their right to recover on the contention that there was a joint duty on the part of both defendants, Swindal-Powell Company and World Wide Liquor Company, to keep the platform and the wooden stairs in good and safe condition. We have read the cases relied on to support this contention but we do not think they conclude the point. It is admitted that plaintiffs were invitees of Swindal-Powell Company who owed them the duty to keep their premises in safe condition and give them notice of hidden defects, if known to them, or that should have been known by the exercise of reasonable care. We find nothing in the record to show that the wooden stairs were shared by Swindal-Powell Company; it is shown on the other hand that they were owned and used by employees of World Wide Liquor Company and were used exclusively by the employees of that company.

It follows that the judgment appealed from must be, and is hereby, affirmed.

Affirmed.

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


author: FOURNET, Chief Justice.

text:
    230 La. 299
    Elino LE BLANC et al. v. HAYNESVILLE MERCANTILE COMPANY, Inc., Trustee.
    No. 42396.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.
    Walter B. Gordy, Jr., Abbeville, W. S. Waller, W. M. Phillips, Shreveport, for appellant.
    Kibbe & Bailey, Abbeville, for plaintiffs-appellees.
   FOURNET, Chief Justice.

The defendant, Haynesville Mercantile Company, Inc., Trustee, is appealing from a judgment of the district court decreeing a certain mineral royalty interest conveyed to it on March 19, 1940, by instrument executed in its favor by the landowners, plaintiff Elia Dugas and her husband, Alcide Le-Blanc, to have prescribed, and in addition ordering it to pay attorney’s fees of $300. The case was submitted to the trial judge on an agreed statement of facts which are stipulated in the record and are substantially as follows:

The royalty interest in dispute conveyed a Veith of the oil, gas or other minerals on, under and to be produced from three tracts of land (one in Sec. 25, two in Sec. 26, T. 13 S., R. 4 E.) in Vermilion Parish, subject to a lease then affecting the lands, but not limited to royalties accruing under said lease — the rights granted in the deed to “remain a charge and burden on the land * * * and binding on any future owners or lessees.” The grantors reserved the right to grant future leases affecting the lands, “so long as there shall be included therein, for the benefit of the grantee herein the royalty rights herein conveyed;” and the grantors further reserved “the right to collect and retain all bonuses and rentals paid for or in connection with any future lease or accruing under the lease now outstanding.”

On February 16, 1945, Elia Dugas and Alcide LeBlanc executed an oil, gas and mineral lease, having a primary term of five years from date, in favor of Union Oil Company of California, covering the land included in the royalty deed described above, along with other lands; a provision of the lease (Paragraph 3) stipulated that in the event gas was discovered for which there was lack of a market at the well, the lessor could pay to the lessee, on or before the first of January of each year after production had ceased for lack of market, $100 “as royalty for each such well, * * * and while such royalty is so paid such well or wells shall be considered as producing in commercial quantities for all purposes hereunder.” The lease was amended on August 5, 1948, to provide that “in lieu of the shut-in gas royalty clause” (Paragraph 3), “Lessee may maintain its rights hereunder from month to month” if there were on the leased land a well capable of producing gas or gas condensate and the lease was not then being maintained by production or by operations on the land, by paying lessors “for rentals herein elsewhei-e named a sum equal to Yizth of the amount of annual rentals” based on the number of acres then covered by the lease, “each payment to extend Lessee’s rights for a period of one month from the due date thereof * * *.” In lieu of another paragraph (No. 5) of the original agreement, under which th'e lessee had been given the right to combine leases, royalty and mineral rights to create one or more operating units of 40 acres, there was substituted a paragraph amplifying the original provisions, again granting to lessee the right to pool or combine the “acreage, royalty, or mineral interest covered by this lease, or any portion thereof, with other land, lease or leases, royalty and mineral interests in the immediate vicinity thereof * * * to form one contiguous body of land for each unit” not to exceed substantially 320 acres each for each gas or gas-condensate well — lessee to execute and record an instrument identifying and describing the pooled acreage, “and upon such recordation, the unit or units shall thereby become effective.” The paragraph further provided “Lessor shall receive * * * regardless of whether or not such production is from any part of the land hereinabove described, a royalty equal to such portion of a one-eighth royalty as the number of acres out of this lease and included in any such operating unit bears to the total number of acres included in the respective operating unit. * * * such portion of a one-eighth royalty shall be in lieu of any other royalties which would accrue to Lessor hereunder on account of production of oil, gas, * * Production from any portion of the unit was to have the same effect as if a well were commenced or completed on the land embi'aced by the lease.

The lease was maintained to February 16, 1950, by delay rental payments, timely made by the lessee. On February 13, 1950, the lessee executed and had recorded a declaration of unitization, creating, for the purpose of production of gas, the “A. D. LeBlanc Unit III.” That unit included a portion of the property covered 'by the royalty sale to the defendant and by the mineral lease to the Union Oil Co. of California, and embraced land on which there was already a well, one which had been brought in some 7 months before, on July 30, 1949, and which, though capable of producing gas and condensate in paying quantities, had been immediately shut in, after testing, for lack of a market. That well, located on acreage belonging to A. D. LeBlanc and others, is known as “A. D. LeBlanc No. 1.”

The lease having been maintained to February 16, 1950, as mentioned above, by delay rental payments, beginning on that date and continuing to January 16, 1951, the plaintiff received timely monthly “shut-in” gas royalty payments; on January 18, 1951, the well was placed in production and has continued to produce gas and condensate in commercial and paying quantities. While the defendant did not join in either 'the original lease to the Union Oil Co. of California, or the amendment thereto, all parties recognize that the lease is valid and subsisting, in full force and effect; the royalties accruing to defendant under its terms have been held in suspense pending the outcome of this suit.

Following trial on the merits — in which the plaintiff contended that the royalty interest conveyed to the defendant on March 19, 1940, had prescribed because of non-production during the ten year period following the sale and that those rights had reverted to the owners of the land as of March 19, 1950; and defendant resisted on the ground that prescription had been interrupted (a) by the declaration of unitization recorded by the lessee on February 13, 1950, (b) by the payment of delay rentals and “shut-in” gas royalties under the lease as amended, (c) by completion of the A. D. Le-Blanc No. 1 well as a producer on July 30, 1949, and (d) by production from that well beginning on January 15, 1951 — the trial judge held that “Such production as was incidental to the completion and testing of the well is not sufficient to enable the royalty owner to share in such production, and will not be considered sufficient to interrupt the running of prescription.” Attorney’s fees were allowed, under the authority of LSA-K..S. 30:101, as a result of the refusal of the defendant, despite demand more than thirty days prior to institution of suit, to furnish plaintiffs with an acknowledged instrument directing the cancellation of the royalty deed.

The defendant-appellant is still contending that production began during the ten year period and has been continuous ever since and that its rights have been preserved thereby, arguing that under the plain provisions of the lease there was production, that it was evidenced by the “shut-in” gas royalty payments made by the lessee, and that the inclusion within a validly unitized area of land on which there was a well capable of producing gas in paying quantities interrupted prescription. Counsel submit that this Court has already decided the point favorably to the defendant in the recent case of Union Oil Company of California v. Touchet, 229 La. 316, 86 So.2d 50.

The plaintiffs-appellees, on the contrary, contend that the creation of the A. D. Le-Blanc Unit III did not, and could not, have the effect of interrupting prescription against the royalties claimed by defendant, arguing that in the creation of said unit there was no privity of contract between plaintiffs and defendant; that the defendant did not authorize the pooling of its royalties into a unit and cannot now take advantage of the provisions of a lease authorizing the creation of such a unit for the purpose of interrupting prescription; and that they, the plaintiffs-landowners, had no power to authorize pooling in so far as defendant’s rights were concerned, those rights having arisen under a royalty sale which had taken place years before and which specifically secured, as to any future leases, the royalty rights therein conveyed and prohibited the plaintiffs-landowners from entering into any lease contract without the consent of the defendant as a result of which the defendant would receive less than the %4th royalty interest conveyed to it — which was exactly the effect produced by the unitization, since the Veith royalty was “reduced and spread out over the 320.19 acres contained in the entire unit.” In addition, counsel now advance the alternative plea (not specially pleaded nor ruled on by the trial judge, and urged here for the first time) that should this Court hold prescription was interrupted, then the interruption affected only that portion of the land which was included in said unit, and not the remainder of the acreage covered by the royalty deed but not so included.

In Vincent v. Bullock, 192 La. 1, 187 So. 35, this Court was squarely faced with a determination of the legal attributes of the type of royalty reserved by a vendor in the sale of his land, as distinguished from royalty which was the consideration for a lease or which arose from or accompanied such a contract; and we held that such a reservation was not a servitude but was governed by the rules of suspensive conditional obligations, and subject to prescription of ten years liberandi causa if the event did not happen prior thereto. The rule announced in that case was reapproved in general principles and extended to cover the converse situation—that of a sale instead of a reservation of royalty with no right to search the land—in Humble Oil & Refining Co. v. Guillory, 212 La. 646, 33 So. 2d 182, and its companion cases, St. Martin Land Co. v. Pinckney, 212 La. 605, 33 So.2d 169, and Union Sulphur Co. v. Lognion, 212 La. 632, 33 So.2d 178. It is also well settled that the right to search and explore, which belongs to the owner of the servitude, is not given to the royalty owner; that the latter must await such time as the land has been developed, and his right is restricted to a sharing in production if and when it is obtained by the landowner or a lessee, Vincent v. Bullock, supra; Union Sulphur Co. v. Andrau, 217 La. 662, 47 So. 2d 38, and authorities cited therein. It follows that the defendant was not a necessary party to the lease, Gulf Refining Co. v. Goode, 212 La. 502, 32 So.2d 904, the landowners having full power to enter into any lease contract they saw fit affecting the property—and that would include the power to grant a lessee the authority to pool and combine the leased acreage or any portion thereof with any lands or leases and mineral interests in the immediate vicinity— subject only to the right of the royalty owner to receive its Yeith of the oil, gas or other minerals allocated to the acreage included in the unit.

The well designated A. D. LeBlanc No. 1 was capable of producing gas and gas condensate in paying quantities, and was on land included within the unit which was formed within ten years from the date of the royalty sale; consequently, the defendant was entitled to Ya4th royalty. The fact that the well was shut in for want of a market and that no gas was sold from it until after the expiration of ten years from the date of the royalty sale cannot defeat the rights of the defendant to share in the production, once begun. Sohio Petroleum Co. v. V. S. & P. R. R., 222 La. 383, 62 So. 2d 615; Union Oil Company of California v. Touchet, 229 La. 316, 86 So.2d 50; and it has been held in numerous cases that mineral leases are maintained beyond their primary term when the leased tracts are embraced within legally established units on which there is production in paying quantities, even though no drilling is conducted on the tracts themselves.

The alternative plea (that the interruption of prescription affected only that portion of the land included within the unit), having been neither urged below nor passed upon by the trial judge, and not having been specially pleaded here, presents nothing for our consideration.

For the reasons assigned, the judgment appealed from is reversed and set aside, and the plaintiffs’ suit dismissed.

      . Before suit was filed, Alcide LeBlane bad died and the children of the union were jointed in this suit as parties plaintiff; those children were substituted additionally to take the place of their mother, Elia Dugas, who died during the pend-ency of the suit, and are Elino LeBlane, Emite LeBlane, Carmelite LeBlane, Si-monet LeBlane, Lorina LeBlane, Claude LeBlane and Martha LeBlane.

      . “Whenever, by reason of the accrual of prescription, any mineral rights expire, the owner or claimant thereof shall within thirty days after written demand by the land owner furnish him with an acknowledged instrument, directing the cancellation of these mineral rights on the records. Thereafter, if the owner or claimant shall fail or refuse to comply within thirty days, he shall be liable to the land owner for a reasonable attorney’s fee incurred in bringing suit to have the cancellation adjudged. * * * ”

      . See Boddie v. Drewett, where the authorities are cited in sequence; 229 La. 1017, 87 So.2d 516.


author: McCALEB, Justice. HAMITER, Justice HAWTHORNE, Justice

text:
    230 La. 310

    Reverend Samuel David MEYERS v. SOUTHWEST REGION CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTISTS et al.
    No. 42453.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.

      Lemle & Kelleher, Carl J. Schumacher, Jr., New Orleans, for defendants-appel-fants.
    Meyer Sabludowsky, Jorda S. Derbes, New Orleans, for relators.
   McCALEB, Justice.

Plaintiff, a salaried minister in the employ of the Southwest Region Conference Association of Seventh Day Adventists, an incorporated body organized under the laws of the State of Texas “for the purpose of supporting public worship and benevolent, charitable, educational and missionary undertakings”, sustained severe personal injuries during December of 1952 in an automobile accident near Colfax, Louisiana while making a trip with another minister, Reverend Jeter E. Cox, to attend a conference of the church corporation scheduled in Dallas, Texas. Claiming total and permanent disability as a consequence of the accident, plaintiff seeks recovery of workmen’s compensation from the church corporation and its liability insurance carrier, the Indemnity Insurance Company of North America, at the rate of $30 per week for 400 weeks, together with the maximum legal allowance for hospital and medical expenses.

The defendants, while admitting the employment and the occurrence of the accident in the course thereof, resist liability for compensation on several grounds. Initially, they contend that the activities of the church corporation is not a trade, business or occupation within the meaning of our workmen’s compensation statute, R.S. 23:1035. Secondly, it is asserted that a minister is not engaged in a hazardous employment and that the operation of a church corporation is not a hazardous trade, business or occupation, notwithstanding that the minister may be required to use an automobile in conducting church work. Thirdly, defendants maintain that, in any event, the workmen’s compensation law should not be construed so as to include the operations of church corporations for, to do so, would be violative of the religious freedom provision contained in Section 4 of Article 1 of our Constitution and also the First and Fourteenth Amendments to the Federal Constitution. In addition, defendants deny that plaintiff has been permanently disabled.

In the district court, there was judgment for plaintiff and against both defendants for compensation, as prayed for, and for $1000 medical expenses, it being provided that defendants would be entitled to credit against the judgment in the sum of $6500, which plaintiff had already obtained as damages in a compromise settlement of his tort claim against the other parties involved in the accident. The defendants appealed to the Court of Appeal for the Parish of Orleans and plaintiff answered the appeal, praying that the judgment be amended by eliminating therefrom the credit allowed to defendants. Thereafter, the Court of Appeal reversed the judgment of the district court and dismissed the suit, holding that the accident was not com-pensable (1) because the church corporation is not engaged in a trade, business or occupation and (2) that, even if it is, its activities are not hazardous since the use of motor vehicles does not constitute an essential feature of its pursuits. See 79 So.2d 595.

We granted certiorari and the case has been submitted for our decision.

The record shows that plaintiff was assigned a parish by the President of the Conference and that his duties consisted of conducting services three times a week, officiating at baptisms and funerals, responsibility for the financial and recreational programs of the church, parochial calls and voluntary service in church-school activities. Plaintiff owned an automobile which was used in making his calls and the church corporation, in addition to his monthly salary, granted him an allowance for depreciation and for expenses growing out of the use of his automobile and also paid for liability insurance protecting him against loss

for his legal liability which might result from the use of his car. The car was used extensively in his employment, covering approximately 1500 miles each month. Accordingly, it would appear that, for all intents and purposes, the use of the automobile was contemplated under his employment and was essential in the performance of his duties.

The primary question to be resolved in the case is whether or not a church corporation, being a charitable and non-profit organization, is a trade, business or occupation within the meaning of our workmen’s compensation law.

The Court of Appeal [79 So.2d 597], was of the opinion that “trade, business or occupation” does not comprehend a charitable or religious organization, since the purpose of the Act is to place the economic burden of employee injury initially on industry and ultimately upon the consumer. From this premise, it reasoned that nonprofitable enterprises were not intended to be covered by the Act. Comments by Professor Wex S. Malone, in his able treatise on Louisiana Workmen’s Compensation Law and Practice, and cases from New York, California and South Carolina are said to fortify this conclusion.

The comment of Professor Malone (found on page 34 of his work) is merely a statement of the economic principle upon which ■ workmen’s compensation laws rest, 1. e., the shifting of the burden of accidental injuries incident to employment from the injured employee onto the public through the employer. But this principle affords no ground for concluding that the compensation law does not apply to employers who do not engage in a trade, business or occupation for profit. The Act, unlike the laws of some other states (e. g.; New York Workmen’s Compensation Law prior to its 1928 amendment), does not, either in letter or spirit, limit its scope to businesses conducted for profit. On the contrary, its comprehensive provisions would seem to encompass an unrestricted field of operation. For example, R.S. 23 :- 1034 includes within the scope of the statute all public employees in the service of the State or other political subdivisions, incorporated public boards, etc. This, alone, manifests that it was never intended by the Legislature that the Act was to be confined to individuals and corporations engaged only in trades or businesses operated for. profit.

The Workmen’s Compensation Act, as we have many times said, is paternal legislation and is to be given a liberal construction by the Courts. Hence, in determining whether a particular calling is within the purview of the law, the meaning of the language “trade, business, or occupation” should, be considered in its broadest aspect so as to include all types of pursuits and we must assume that, if the Legislature intended to exclude any particular enterprise, it' would have specially excepted it.

The term “business” has no definite- or legal meaning. See Black’s Law Dictionary, 4th Ed., page 248. It is a general term with widely variegated meanings and has been defined as “That which busies, or engages time, attention, or labor, as a principal serious concern or interest”. Webster’s New International Dictionary, 2d Ed.

Thus we see that, by giving the term “trade, business, or occupation” the comprehensive meaning to which it is entitled, no difficulty is encountered in reaching the conclusion that the defendant church corporation is conducting a business. The Supreme Court of Iowa expressed the same view, but more emphatically, in Gardner v. Trustees of Main Street Methodist E. Church, 217 Iowa 1390, 250 N.W. 740, 746, where, in interpreting similar language of the Workmen’s Compensation Law of that State, it said:

“To claim that a church has no business is the height of absurdity. The greatest business in this Christian nation is that conducted by its churches. That it is not conducted for pecuniary gain makes it none the less a business.”

The cases cited by the Court of Appeal are inapposite and do not sustain the conclusion reached by it that the operation o.f a church corporation is not a trade, business or occupation.-

In Dillon v. Trustees of St. Patrick’s Cathedral, 234 N.Y. 225, 137 N.E. 311, 312, it was held that the religious corporation was not engaged in a trade, business or occupation within contemplation of the Workmen’s Compensation Law of the State of New York because the law of New York, at that time, was applicable only to trades, businesses or occupations “ ‘carried on by the employer for pecuniary gain, * * * ’ ”, Workmen’s Compensation Law, § 3, subd. 5.

The decisions in Hartford Accident and Indemnity Co. v. Department of Industrial Relations, 139 Cal.App. 632, 34 P.2d 826; Caughman v. Columbia Y.M.C.A., 212 S.C. 337, 47 S.E.2d 788, as well as Zoulalian v. New England Sanatorium and Benevolent Association, 230 Mass. 102, 119 N.E. 686, L.R.A.1918F, 185, all denying compensation to employees of charitable institutions, were based on the premise that, since the compensation acts in those states did not specifically include charitable institutions and since there was no common law liability imposed on such institutions under the doctrine of respondeat superior, such corporations would have had to be specifically included in the statutes in order for them to be liable for workmen’s compensation. These rulings, of course, have no pertinence here in Louisiana, or in the majority of the states, where it is well settled that charitable corporations are not exempt from responsibility for personal injuries to third persons and servants under the “Trust Fund Doctrine”. See 10 Am. Jur. Verbo “Charities” Sections 153 and 154; Bougon v. Volunteers of America, La.App., 151 So. 797; Unser v. Baptist Rescue Mission, La.App., 157 So. 298 and Lusk v. United States Fidelity & Guaranty Co., La.App., 199 So. 666.

Since we are of the opinion that the church corporation conducts a business within the meaning of the Act, we next consider defendants’ contention that its operations are not hazardous and, further, that plaintiff's employment is likewise not hazardous.

Although the conducting of a church organization is not hazardous per se, this does not mean that such a body is not amenable to the provisions of the Compensation Act if its operations are such as to entail the use of automobiles as a necessary incident thereto. Haddad v. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, 9 A.L.R. 1380; Crews v. Levitan Smart Shops, La.App., 171 So. 608; Franz v. Sun Indemnity Co. of New York, La.App., 7 So.2d 636 and Reagor v. First Nat. Life Insurance Co., 212 La. 789, 33 So.2d 521. Indeed, it is well established by the foregoing authorities and others too numerous to mention that, if a business normally nonhazardous has hazardous features, any employee regularly exposed to the hazardous features is entitled to workmen’s compensation even though, when injured, he is engaged in the nonhazardous branch of his work. Byas v. Hotel Bentley Inc., 157 La. 1030, 103 So. 303.

As we have above indicated, we think it manifest in the case at bar that the functions of the agents and employees of the church corporation could not be efficiently performed without the.aid of motor vehicles and we have no doubt that the plaintiff’s use of his automobile in the various aspects of his work was not only expected by the church corporation but was deemed by it to be essential, as evidenced by the fact that it assumed the cost thereof.

The Court of Appeal, in concluding otherwise, relied in the main on Brownfield v. Southern Amusement Co., 196 La. 73, 198 So. 656. Even if the Brownfield case could be considered as authority, the facts of that matter are not comparable to those of the instant suit and hence it could not be regarded as parallel. There, it was found on first hearing that plaintiff, employed in a clerical capacity, was not covered by the compensation law merely because she occasionally used her personal automobile in checking outdoor advertising matter and in transporting delayed motion picture films from Shreveport to Mansfield. The rationale of the decision is that the use of the automobile was so remotely connected with the employer’s business as to make the risk from its operation negligible. Surely, the same cannot be said of the use by plaintiff of his automobile in the instant case. This was an every day affair necessitated by the work of the church and the demands of plaintiff’s calling.

Nor are we impressed with defendants’ claim that application of the compensation law to the church corporation would violate the State and Federal Constitutions. Section 4 of Article 1 of the State Constitution guarantees religious freedom and prohibits discrimination against any church, sect or creed of religion. It does not exempt a church corporation, in the absence of special exception, from the laws of the State which apply equally to all without regard to their race, color or creed.

Defendants’ assertion of a supposed violation of the First and Fourteenth Amendments to the Federal Constitution is insubstantial for the reason given above.

We also note that defendants are contending that plaintiff was not an employee within the contemplation of the Workmen’s Compensation Act. We think our recent decision in Trappey v. Lumbermen’s Mutual Casualty Co., 229 La. 632, 86 So.2d 515 disposes of this contention. There, it was held that a partner in a commercial business was an employee within the meaning of the Act. The rationale' of that decision would apply a fortiori to the instant case where plaintiff was employed at a definite monthly salary and had placed his time and service at the call of a superior. See Taylor v. St. Paul’s Universalist Church, 109 Conn. 178, 145 A. 887; Bernstein v. Beth Israel Hospital, 236 N.Y. 268, 140 N.E. 694, 30 A.L.R. 598 and Gomber v. Industrial Commission, 219 Wis. 91, 261 N. W. 409.

We therefore conclude that the accident out of which this suit stems is com-pensable, provided, of course, that plaintiff has suffered disability therefrom. As this question and certain other contentions raised by the litigants have not been passed on by the Court of Appeal, we will remand the case to that court for further proceedings in conformity with our policy in these matters. See Thomas v. Checker Cab Company, 229 La. 1079, 87 So.2d 605 and authorities there cited.

The judgment of the Court of Appeal is therefore reversed and the case is now remanded to said court for further proceedings in accordance with law and consistent with the views herein expressed. The costs of the proceedings in this court are to be paid by defendants.

HAMITER, Justice

(concurring).

If the decision in this cause depended entirely on a consideration of the demand in the light of the provisions of the Louisiana Workmen’s Compensation Act as written, LSA-R.S. 23:1035,1 should be inclined to the view that a church corporation does not engage in a hazardous trade, business or occupation as contemplated by the statute and, hence, that the claim of this plaintiff is not compensable.

However, through extremely liberal interpretations given in connection with numerous decisions of this court and of our Courts of Appeal (with many of which I have disagreed) those statutory provisions have been extended so as to include “all types of pursuits” (as stated in the majority opinion) in which motor vehicles are used; and the Legislature, although it has often met in regular session, has consistently permitted such interpretations and extensions to go unchallenged. For this reason I am forced to the conclusion that the Louisiana Workmen’s Compensation Act is here applicable and that plaintiff is entitled to the benefits which it affords.

I respectfully concur.

HAWTHORNE, Justice

(dissenting).

I am of the opinion that the judgment of the Court of Appeal is correct and should be affirmed. See 79 So.2d 600.

      . R..S. 23:1035 provides, in part, that: “Tlie provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation in the following hazardous trades, businesses and occupations: * * * (Emphasis ours.)

      . Nor can it be said that it would be viola-tive of the economic principle of workmen’s compensation to hold that the law applies to charitable and religious organizations as well as to businesses conducted for profit. In both cases, the costs of the injuries are ultimately passed on to the public — specifically, to those supporting the charity or religious institutions in the first instance, and those who purchase the goods or services, in the latter.

      . For our most recent expression see Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522.

      . “Business” is also specifically defined in Webster’s Dictionary as “(a) Constant employment; regular occupation ; work; as, the business of living; business before pleasure, (b) Any particular occupation or employment habitually engaged in, especially for livelihood or gain. (c) A particular subject of labor or attention; a temporary or special occupation or concern. ‘Wist ye not that I must be about my Father’s business V Luke ii. 49”.

      . See also Mussolini v. Driscoll, 114 Conn. 546, 159 A. 480, where it was held that the disposal of ashes or rubbish by a city was a business, within the meaning of the Workmen’s Compensation Act of Connecticut; Schneider v. Salvation Army, 217 Minn. 448, 14 N.W.2d 467, 468, where it was found that the defendant was not exempted from liability for compensation, the court pointing out that “the fact that it is a purely charitable enterprise does not of itself release it from the obligations of our Workmen’s Compensation Act, * • * which, unlike the acts of some states, does not except charitable or religious institutions, as such, from its operation, nor exclude their employes from its benefits”; Hope v. Barnes Hospital, 227 Mo.App. 1055, 55 S.W.2d 319, holding that the term “employer”, as used in the Missouri Act, included charitable institutions since the Legislature did not specifically exempt them. And Taylor v. St. Paul’s Universalist Church, 109 Conn. 178, 145 A. 887, where a minister injured while obtaining material to be used for church lectures was awarded compensation under the law of that State.

      . But see Hall v. Salvation Army, 261 N. Y. 110, 184 N.E. 691, where the Court of Appeals held that workmen employed in the Salvation Army came within the New York Workmen’s Compensation Law, as amended in 1928 and again in 1929.

      . The Court of Appeal also cited Tregre v. Kratzer, La.App., 148 So. 271, the doc-triné of which had been previously rejected by the same court in Crews v. Levitan Smart Shops, La.App., 171 So. 608; Comeaux v. South Coast Corporation, La App., 175 So. 177 and Franz v. Sun Indemnity Co. of New York, La.App., 7 So. 2d 636.

      . It is not, as a rehearing was granted and the case compromised after it had been argued and submitted on the rehearing. The granting of a rehearing bad the effect of setting aside the original opinion and decree.


author: MOISE, Justice.

text:
    230 La. 327
    STATE of Louisiana v. Edward “Nig” HOWARD.
    No. 42791.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.

      A. V. Pavy, Edward V. Pavy, Opelousas, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., J. Y. Fontenot, Dist. Atty., Morgan J. Goudeau, III, Asst. Dist. Atty., Opelousas, for appellee.
   MOISE, Justice.

Edward “Nig” Howard was charged by indictment with having committed a battery with a dangerous weapon upon Mario Termini. He was tried, convicted, and sentenced to serve four years at hard labor in the State Penitentiary. From that conviction and sentence, he appeals.

The State’s answer to a motion for a bill of particulars discloses that the defendant was charged with having shot Mario Termini. At the time of the alleged crime, the defendant, a caretaker for the Second Lake Pleasure Club located on Second Lake, was on the club’s private property and Termini was in a boat on Second Lake, a public body of water.

Eight bills of exceptions were reserved during the course of the trial.

Bill of Exceptions No. Six was reserved to the action of the trial judge in overruling the motion to quash the indictment. This motion was predicated on the contention that the sessions of- the Grand Jury were not conducted in conformity with LSA-Revised Statutes 15:215, in that the testimony of witnesses was transcribed by a recording machine instead of by a sworn stenographer. Having waived his immunity, the defendant was present at the session of the Grand Jury.

LSA-Revised Statutes 15:215 provides:

“The sessions of the grand jury shall be secret, but the district attorney, as their legal adviser, shall have free access to said sessions; the district attorney may cause the testimony taken before the grand jury to be reported by a stenographer, who must be first sworn by the foreman of the grand jury; and whenever a witness is unable to speak the English language, the grand jury shall have the right, at its discretion, to employ an interpreter to translate the testimony of the witness, but such interpreter shall be first sworn to keep secret the proceedings of the grand jury.”

The above statute permits the district attorney to have access to the sessions of the Grand Jury and to have the testimony taken by a sworn stenographer. He is the legal adviser of the Grand Jury, and as a rule the testimony is taken for his use.

Bill of Exceptions No. Six does not disclose that any unauthorized person appeared before the grand jury, nor does it disclose that any unauthorized person played the record or that anyone who had not taken an oath of secrecy transcribed the recorded testimony.

Defendant relies on the case of State v. Watson, 34 La.Ann. 669, in which we held that the judge’s appointment of a citizen, who was not a member of the Grand Jury, as a clerk of that body was unauthorized by law and could be made the ground of a motion in arrest of judgment. That case is inapplicable, as in the instant case there was no unauthorized person before the Grand Jury.

Bill of Exceptions No. One was taken to the ruling of the trial judge in sustaining the State’s objection to the cross-examination of Mrs. Ed Phillips, a State witness. The defendant was attempting to prove, by cross-examination of Mrs. Phillips, hostility, interest and bias in the case, by showing that there was a previous difficulty between Mrs. Phillips and Mr. Lawrence Thistle-thwaite, a member of the Board of Managers of defendant’s employer, Second Lake Pleasure Club.

The State contends that the cross-examination of Mrs. Phillips, relative to a previous difficulty with someone other than the accused, was entirely foreign to the case, and that the evidence would have been irrelevant and immaterial.

LSA-Revised Statutes 15:492 provides:

“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.”

Jn the case of State v. Graziani, 168 La. 297, 121 So. 872, 874, this Court stated:

“ * * * a witness may always be cross-examined touching his interest, or want of interest, in the case on trial; that is a matter affecting his credibility, and a proper matter for the consideration of the jury in passing thereon.”

In State v. Leahy, 175 La. 659, 144 So. 138, 140, we further said:

“This court has held repeatedly that: ‘It is always competent in a criminal case to show the feeling entertained by a witness towards the person against whom he is called upon to testify.’ State v. Cullens, 168 La. 976, 123 So. 645, 647; State v. Graziani, 168 La. 297, 121 So. 872; State v. Wilson, 163 La. 29, 111 So. 484.”

The purpose of the cross-examination in the instant case was to show a dispute with a third person, not with the accused.

In the case of State v. Cullens, 168 La. 976, 123 So. 645, 647, this Court held that the trial court was correct in sustaining an objection to testimony on cross-examination as to whether the defendant’s father had the witness’ father arrested on a charge of highway robbery. The question was propounded for the alleged purpose of showing bias or prejudice on the part of the witness against the defendant. We stated: •

“If defendant’s theory be accepted, nevertheless it does not establish an actual or direct bias or prejudice on the part of the witness against him, but only a circumstance from which bias or prejudice might exist or be inferred. The circumstance, itself, is too remote. The fact that defendant’s father caused the arrest of the witness’ father on a criminal charge unconnected with the offense for which defendant, himself, is being prosecuted, may be a reason for the existence of an unfriendly feeling on the part of the witness against defendant’s father, but it by no means follows that it has also produced in his mind a feeling of hostility towards the defendant. If testimony of this character can be introduced to discredit a witness, the question then recurs: Where is the limit to the introduction of testimony on collateral facts for that purpose? If a quarrel or ill feeling between the parent of a witness and a parent of an accused can be relied on to discredit the testimony of the witness, family quarrels, disputes, and hostilities ad infinitum can be inquired into for the purpose of disqualifying a member of one of the families from giving impartial testimony against a member of the other family. This would result in no end of collateral issues in a criminal prosecution, and it would have a far reaching effect in impairing public confidence in the accuracy and impartiality of human testimony.”

We believe that the above reasoning applies to the present prosecution and that this Bill of Exceptions No. One is not well founded.

Bill of Exceptions No. Two was reserved to the trial court’s permitting the district attorney to cross-examine the defendant as to facts and circumstances surrounding a plea of guilty in the Parish of Pointe Coupee to the charge of manslaughter some twenty-five years prior to the commission of the crime in the instant case.

In answer to questions propounded to him by his own counsel, the defendant admitted his prior conviction, but he testified that he changed his plea of “Not Guilty of Murder” to “Guilty of Manslaughter”, because after being in jail for two years he got tired and plead guilty.

In its per curiam the trial court stated:

“This witness on direct examination testified that in the Parish of Pointe Coupee when he was seventeen or eighteen years of age, he had been charged with killing a man by the name of Goudeau and that after remaining in jail for some two years, he got tired and plead guilty. Now, on cross-examination, the District Attorney has inquired if it were not a fact that the defendant at that time was represented by a gentleman by the name of Ferd Claiborne, who obtained a continuance for him after being indicted for murder and that in a subsequent term of Court represented by an attorney by the name of Albin Provosty, another continuance was obtained and at the time the question was asked of the witness if it were not a fact that subsequent to those two continuances, he changed his plea- of not guilty and entered a plea of guilty to manslaughter at which point counsel for the defendant objected.
“The objection is overruled because of the prior testimony brought out on direct examination by the defendant and the District Attorney is permitted consequently to test his credibility as to various steps and reasons why the plea was changed and the time involved and reasons for the delay.”

Defendant relies on LSA-Revised Statutes 15:495, as amended in 1952, which reads:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

While it is true that ordinarily the only inquiry that may be made is whether the accused has or has not been previously convicted, that does not preclude the State from contradicting the defendant’s testimony given in his examination in chief upon an issue which he has brought into the case. State v. Walters, 135 La. 1070, 66 So. 364. The trial judge was correct in his ruling.

Bill of Exceptions No. Three was reserved to the ruling of the trial judge, which permitted the State to introduce a certified copy of the minutes of the Court of Pointe Coupee Parish for the years 1929 and 1930 (relative to the charge referred to in Bill of Exceptions No. Two), for the purpose of showing that two motions for a continuance in that case were made by defendant’s own counsel.

Since we have ruled that the cross-examination by the State, as to incidents connected with the defendant’s prior pleas of “Guilty”, was permissible to rebut the defendant’s own testimony with regard to the reason for delay, we, likewise, concur in the ruling of the district judge in this instance.

Bills of Exceptions Nos. Four and Five were reserved to the restriction the trial court placed upon the testimony of two character witnesses summoned by the defendant after he had taken the stand. These witnesses were not permitted to express their personal opinion as to the reputation of the accused. Both testified that they had never heard his general reputation discussed.

LSA-Revised Statutes 15:479 expresses the general rule that character is determined by general reputation and not by individual opinion. It reads:

“Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.”

In State v. Ciaccio, 163 La. 563, 112 So. 486, 488, we said:

“ * * * A witness is not in a position to testify affirmatively to the reputation of the accused unless he has heard it discussed.”

We do not think that the defendant was prejudiced by the ruling of the trial judge, especially since the jury had the advantage of considering the testimony of the two character witnesses to the effect that they had never heard the reputation of the defendant discussed. Consequently, the trial court was correct in restricting the testimony of these character witnesses, and there is no merit in Bills of Exceptions Nos. Four and Five.

Undoubtedly, Bills of Exceptions Nos. Seven and Eight have been abandoned by defendant’s counsel. We find the following statement in brief:

“Bills of Exception VII and VIII were based upon action of the District Court in overruling the motions in arrest of judgment and for a new trial and which motions present nothing new to the Court except as would appear under the discussion of the other bills reserved.”

Accordingly, no further comment is necessary on Bills of Exceptions Nos. Seven and Eight.

For the reasons assigned, the conviction and sentence are affirmed.


author: HARDY, Judge.

text:
    Robert J. NEWSON, Plaintiff-Appellant, v. C. D. BAILEY, Defendant-Appellee.
    No. 8524.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.

      Robert J. Newson, Shreveport, for appellant.
    Bryan E. Bush, Shreveport, for appellee.
   HARDY, Judge.

Plaintiff prosecutes this appeal from a judgment dismissing his suit for- want of prosecution, responsive to a motion by counsel for defendant and rule to show cause fixed in accordance therewith.

Plaintiff instituted this suit in the City Court for the Fourth Ward of Caddo Parish on December 8, 1949, and the case was tried on the merits on September 7, 1950. On February 23, 1956, counsel for defendant filed a motion to dismiss on the ground of want of prosecution for more than five years, and prayed for the issuance of a rule to show cause. Responsive to this motion plaintiff was ordered to show cause on February 29, 1956, why the suit should not be dismissed. Responding to the rule, plaintiff filed an exception of no right nor cause of action and an answer in which he denied the basis for defendant’s motion and further alleged that he had never “contemplated a voluntary, active and intentional abandonment of this suit; has committed no acts to imply such an intention; but on the other hand that all delays ‘have been caused by matters beyond his control’.” Further detailing his opposition to the motion, plaintiff asserted that his failure to hasten the case to a conclusion had been caused by numerous acts on the part of counsel for defendant. Study of the allegations of plaintiff’s answer to the rule convinces us that there is nothing in his allegations with reference to the action of defendant’s counsel which serves to excuse, much less to justify or reasonably explain, plaintiff’s failure to prosecute his action.

Before this court plaintiff urges that he should have been permitted the right to establish the facts set forth in his answer by appropriate evidence. This contention might be valid if the allegations of fact were entitled to be accorded any merit by way of justification for plaintiff’s failure to prosecute his suit, but since, as above observed, an examination of these allegations is convincing on the point that they are without substance in this respect, this contention is not entitled to consideration.

Reference to the minutes of the court establishes the fact that from date of trial of the case, September 6, 1950, to date of filing of the motion to dismiss for want of prosecution on February 23, 1956, no action of any kind was taken in the case. It is shown by the record that the transcript of evidence was filed February 3, 1956, but this was not such an action as constituted an active step in the' prosecution of this suit. This identical point was recently decided by this court in Reagor v. First National Life Ins. Co., La.App., 85 So.2d 312 (writs denied by Supreme Court May 7, 1956).

In the above cited case we quoted from the opinion of the Supreme Court in Sliman v. Araguel, 196 La. 859, 200 So. 280, 281, in which the court declared:

“A step in the prosecution of a suit means something done in court towards the progress of the suit in court. Lips v. Royal Ins. Co., 149 La. 359, 89 So. 213.”

Actions taken for the purpose of procuring the dismissal of a suit for want of prosecution are founded upon the provisions of Article 3519 of the LSA-Civil Code which reads as follows:

“If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.
“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

Plaintiff insists that the codal article contemplates a voluntary, active and intentional abandonment of the suit, and in support of this position cites Gaines v. Hennen, 24 How. 553, 563, 65 U.S. 553, 563, 16 L.Ed. 770; Sheldon v. Reynolds, 14 La.Ann. 692; Bell v. Elliott, 8 La.Ann. 453; Wilson v. Marshall, 10 La.Ann. 327, and Price v. Emerson, 16 La.Ann. 95.

None of the above authorities are appropriate, since all the cases cited were decided prior to the amendment of Article 3519 by Act No. 107 of 1898, which amendment added the second paragraph of the article, quoted supra. Prior to this amendment there had been considerable confusion as to the interpretation of the article and it was the purpose of the amendment to clarify the meaning. We think there is no longer any question as to the interpretation thereof. The step in the prosecution of a suit as required by the amendment has been clearly defined. Cf. Sliman v. Araguel; Lips v. Royal Ins. Co.; Reagor v. First National Life Ins. Co., all cited supra.

Appellant attempts to excuse his delay or neglect of prosecution by the claim that the delay has been caused by matters beyond his control induced by the acts of defendant’s counsel. Negotiations between counsel have no bearing upon the interpretation and application of the article, Sliman v. Araguel, supra.

Nor has plaintiff asserted any facts which indicate that the delay or lack of prosecution was induced by circumstances beyond his control. The cases which he cites in support of this proposition, Barton v. Burbank, 138 La. 997, 71 So. 134, and Zatarain v. Portera, La.App., 63 So.2d 477, involved facts which have no analogy to those existing in the instant case.

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


author: GLADNEY, Judge.

text:
    Joe COSTANZA, Sr., et al., Plaintiffs-Appellees, v. GREAT AMERICAN INDEMNITY COMPANY OF NEW YORK et al., Defendants-Appellants.
    No. 8507.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Rehearing Denied July 11, 1956.

      Morgan Baker & Skeels, Shreveport, for appellants.
    Charles M. Peters, John L. Schober, Jr., Shreveport, for appellees.
   GLADNEY, Judge.

Plaintiffs, Joe Costanza, Sr., Beth B. Costanza, wife of J. A. Costanza, J. A. Costanza, individually as master of the community and as administrator of the estate of his minor child, John Thomas Co-stanza, have brought this suit for property loss and personal injuries sustained in an automobile collision which occurred November 6, 1955 about 2:00 o’clock P.M. on the Blanchard Road just south of its intersection with Fail-view Road and which point is situated north of Cross Lake in Caddo Parish, Louisiana. Made defendants are Arthur H. Loe and his public liability insurer, Great American Indemnity Company of New York. The appeal is by defendants from a judgment which casts them for stated amounts. Mrs. Beth B. Costanza has answered the appeal to have this court increase the award in her favor.

At the time aforesaid, Joe Costanza, Sr., with weather normal and the blacktopped highway dry, was driving a Willys station wagon in a northerly direction on the Blanchard Road. He was accompanied by Mrs. Beth B. Costanza and her minor child, John Thomas Costanza, aged five years, seated on the front seat next to him, and was engaged in taking his daughter-in-law and grandson to their home at Mrs. Beth Costanza’s request. Approaching from the south and meeting the station wagon was a Ford automobile owned by Arthur H. Loe being driven by an employee, Bobby Stephens. Following the Costanza vehicle at a distance of several hundred feet was another vehicle operated by Mr. Tyre Johnson. The collision between the two vehicles occurred slightly south of a “Y” intersection of Blanchard Road with Fairview Road, the roads forming an acute angle •with Fairview Road entering from the northwest. The trial judge who personally-viewed the locus of the accident described the general scene in the following language:

"South of this intersection and the point of impact about 150 or 200 feet the road makes a turn to the east of almost 90° and then continues straight in an easterly direction for several hundred feet through an underpass under the Kansas City Southern Railroad. About 150 or 200 feet north of this intersection and the point of impact is the crest of a rise. From this crest southward to the intersection and the point of impact and on around the curve and through the underpass above mentioned, the road declines. To the north of the crest of the rise above referred to the road declines to the north for a short distance and then levels out on a level straight course. In addition to the intersection with Fairview Road above mentioned there is, about 50 or 75 feet north of that intersection and the crest, another intersecting road which leaves the Blanchard Road on the west and continues in a southwesterly direction. Neither of these roads completely intersects the Blanchard Road, that is, neither one continues across and on the east side. These two intersecting roads cross each other slightly west of the Blanchard 'Road, forming the top of a ‘Y’ with the Blanchard Road.”

Several legal issues are presented embracing charges of negligence against both drivers, a plea of contributory negligence by Arthur H. Loe and his insurer and the validity of a third party action. The third party action was filed on behalf of the Great American Indemnity Company of New York and Arthur H. Loe, against Standard Accident Insurance Company, the liability insurer of Joe Costanza, Sr., under LSA-R.S. 13:3381 et seq. Arthur H. Loe also filed a reconventional demand for recovery of property loss to his automobile.

In the trial court Standard Accident Insurance Company, made third party defendant, filed an exception of no cause or right of action, which exception was sustained and judgment thereon signed on June 8, 1955, the judge a quo handing down written reasons for his decision. There was no direct appeal from this judgment, but following a judgment rendered after a trial of the case on its merits, signed January 27,, 1956, the present defendants perfected orders for suspensive and devolutive appeals. Although counsel for both sides of the third party action have cautiously briefed the issues raised through the exceptions, we are convinced and conclude that the issue is now moot, especially in view of the findings set forth in this decree.

Turning now to a consideration of issues involving the negligence of the two drivers, we think it clear that the decisive issue in the case is solely one of fact. Appellees assert the evidence discloses that the point of impact between the two vehicles occurred on Costanza’s side of the road about a foot and one-half or two feet east of the center, that Mr. Costanza was at all times immediately prior to the collision traveling on his proper side of the road at a moderate rate of speed and that at no time did he ever cross the center of the road, and, therefore, the driver of the Loe vehicle negligently left his proper side of the road and invaded that in which the station wagon was traveling. It is further charged that Bobby Stephens was driving at an excessive rate of speed under the circumstances and did not have his automobile under proper control. The defense is that Mr. Costanza just before Stephens applied his brakes signalled for a left turn and began to turn his vehicle to the left in front of Stephens, and the latter, believing that Costanza was going to cross in front of him, applied his brakes and cut to the left in order to avoid a collision, but that Costanza then cut back to the right after having crossed the center of the road.

After hearing the testimony of Mr. Co-stanza, his daughter-in-law, Tyre Johnson and Bobby Stephens, and personally viewing the scene of the accident, the district judge held the case to be with plaintiffs and that the driver of the Willys station wagon was free of negligence. In addition to the eyewitnesses above mentioned, photographs taken immediately following the accident and.the testimony of a police officer shed some -light on the question of fault.

Mr. Costanza and his daughter-in-law testified that they approached the intersection with the intention of turning left and proceeding out Fairview Road, that Co-stanza signalled his intention of making a left turn primarily because of the Johnson car which was following him in the rear, and that the hand signal so given was quickly withdrawn when he observed the approach of the Ford automobile. Both of these witnesses testified that at no time did Costanza ever cross the center line, nor did he ever actually begin the movement for a left turn. Mr. Johnson, the driver of the vehicle following the Willys, testified he had been following for some distance and that Mr.- Costanza was traveling about twenty or twenty-five miles per hour, that he remained at all times on his right and proper side of the road, and never at any time began his intended left turn. All three testified that as the Loe vehicle came close to the station wagon Stephens cut over into the left or the east lane of travel and Mr. Costanza cut his car sharply to the right and -wound up in the ditch on that side of the road.

Counsel for appellants argue strenuously that the testimony of Mr. Costanza, his daughter-in-law and Mr. Johnson indicates that the left turn had actually been commenced by Mr. Costanza and this caused Bobby Stephens, who was driving in his proper lane of traffic, to apply his brakes, and because he was expecting the driver of the station wagon would continue with his left turn, Stephens attempted to turn his vehicle to the left for the purpose of avoiding the collision. Pointing out that these three witnesses testified Mr. Costanza turned his vehicle to the right prior to the occurrence of -the collision, and that the locus of impact was approximately in the center or slightly to the left of the-center 'or east side of the road, counsel argue the conclusion is inescapable that the Costanza vehicle was on its left side of the road and had commenced the turning movement prior to the impact. But this contention is supported only by the testimony of Bobby Stephens, whereas the three witnesses testified positively that the Costanza automobile never left its right lane of travel prior to the collision. This factor is the turning point of the case, for arguendo, if the evidence proved Costanza had commenced a turning movement and had, or was about to invade Stephens’ lane of travel, Costanza then would be guilty of negligence. The preponderance of the evidence, however, was with plaintiffs and the judge a quo so held. We see no error in this holding. In assigning reasons for his decision our brother of the trial court made the following observations:

“The writer of this opinion visited the locus of this accident and it is manifestly a dangerous set-up. Approaching from the north on the Blanchard Road a driver is unable to see cars that have come under the underpass and are rounding the curve until he has almost arrived at the crest; and the driver of a car approaching from the south and coming through the underpass is able to see around the curve and to the north after he has gone only about 100 feet away from the underpass. To the north of the crest of the rise north of the intersection are road signs on the west side of the road facing southbound traffic indicating the intersection and the S-turn in the road through the underpass. Under these circumstances it is our opinion the driver of a car from the north approaching this site is amply notified of the situation and should, in the exercise of reasonable care, proceed at reduced speed and have his car under such control as would enable him to safely negotiate the area.

“About the time Mr. Costanza thus sig-nalled his intention to make a left turn the Loe vehicle driven by Stephens suddenly appeared over the crest of the hill at a rapid rate of speed, estimated by the witnesses at from 45 to 50 miles an hour. The evidence satisfies us that Mr. Costonza was driving his station wagon, or- Jeep, at 20 or 25 miles an hour as he approached the point at which he intended to turn. After the Loe vehicle had topped the crest of this rise and proceeded down the incline toward the Costanza vehicle, Stephens, the driver of the Ford, applied the brakes on his car causing it to begin to slide and veer towards his left and it continued on in this manner across the center of the highway pointed directly at the Costanza vehicle approaching from the opposite direction. Seeing this, Costanza undertook to cut his vehicle to his right, that is to the east, but he was unable to do so in time to avoid being struck by the Loe vehicle. The left front corner of the Costanza car was struck by the left front corner of the Loe vehicle, the Costanza car continuing on into the ditch on the right or east side of the highway where it came to rest. The Loe car was spun around about 90° and came to rest almost squarely across the highway.”

We have noted and examined the authorities cited by counsel for appellants, consisting of Daigle v. Cobb, 1931, 18 La.App. 212, 138 So. 213; Austin v. Sumrall, 1932, 19 La.App. 868, 141 So. 772; Tyler v. Marquette Casualty Company, La.App.1955, 79 So.2d 376. The cited cases are inap-posite. Daigle v. Cobb turned upon a left signal which the court held sufficient to cause the other driver to believe his left lane was about to be invaded and justified the steps taken by the driver in the emergency created thereby. In the instant case Bobby Stephens testified he never saw Costanza give a left or turning signal. He, therefore, could not have justified his action under the facts of the cited case. In Austin v. Sumrall and Tyler v. Marquette Casualty Company, the drivers in each instance had actually commenced the execution of the turning movement and were held responsible for the emergencies which resulted therefrom.

The judgment from which appealed was predicated on holding that Mr. Co-stanza was free of negligence and that the sole proximate cause of the accident was the negligence of Bobby Stephens: in not having his car under proper control, driving at an excessive rate of speed under the circumstances, and in leaving his own side of the road and invading the lane of travel in which Costanza was lawfully proceeding. We are in agreement with these findings.

Nor do we feel warranted in changing any of the awards granted to plaintiffs as damages. There can be, and in fact there is no serious controversy as to the amounts determined in favor of Joe Co-stanza, Sr. and J. A. Costanza, individually and as administrator of the estate of John Thomas Costanza. We are also of the opinion that the award made in favor of Beth B. Costanza is neither excessive nor inadequate. However, there is dissatisfaction as to the allowance by counsel on both sides, and consequently we here give further consideration to the nature and extent of the injuries received by her. Her total claim for personal injuries was for $14,750 and she was awarded the sum of $2,500. The medical evidence indicates quite clearly that Mrs. Costanza received severe contusions, lacerations and abrasions on both her knees and a rather severe blow on the side of her face. The force and suddenness of the collision caused a typical whiplash injury to the neck muscles and ligaments. She was hospitalized for shock and pain for a period of eight days, during which time complete medical examinations were had. The X-rays revealed no bony pathology and the principal injury was diagnosed as a cervical sprain. Treatment consisted of traction and the wearing of a neck brace for six weeks after the patient left the hospital. Mrs. Costanza was also required to take periodic diathermy treatments. She was able to return to her work as nurse at the hospital on January 14, 1955. For some time thereafter she complained of frequent headaches and neuralgia pains in her neck, shoulders and upper back; At the time of trial Mrs. Costanza still suffered some ill effects from the accident and in the opinion of the doctors who testified these would continue indefinitely. After weighing carefully the opinions of the doctors who testified, we find our conclusions are entirely consistent with that of the district court.

Therefore, for the reasons hereinabove assigned, the judgment from which appealed is affirmed at appellants’ cost.


text:
    John BEVIS, Plaintiff-Appellee, v. Mrs. J. M. ALEXANDER, Defendant-Appellant.
    No. 8522.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Rehearing Denied July 11, 1956.
    Eugene J. Coen, Shreveport, for appellant.
    Booth, Lockard, Jack & Pleasant, Shreveport, for appellee.
   HARDY, Judge.

This is a suit by which plaintiff seeks to collect the sum of $258, being the amount of a check made and signed by the defendant. From a judgment in favor of plaintiff the defendant has appealed.

We think it desirable, because of the unusual nature of the case and the general lack of certainty which afflicted most of the testimony in the record, to set forth the principal recitals of the pleadings of the parties plaintiff and defendant.

Plaintiff’s petition alleged:

“1.
“That Mrs. J. M. Alexander, who resides at 3106 West Laurel Street in the City of Shreveport, Louisiana, is justly and truly indebted unto your petitioner in the sum of $258.00 with legal interest from July 1, 1554 and all costs of this suit.
“2.
“Petitioner avers that he advanced money to the defendant in the form of loans for a period of several months prior to July 1, 1954, on which date the defendant issued her check in the amount of $258.00 payable to ‘Cash’, and delivered the same to your petitioner with the request that he hold the same for a short time prior to depositing it in the bank.
“3. '
“Petitioner shows that in September the defendant authorized him to deposit the check in the bank, but that after doing so the defendant stopped payment, all of which will be more fully shown by the check which is attached to and made a part of this petition.”

Defendant made answer to the above allegations as follows:

“1.
“That she admits her name and address; otherwise, the allegations of Article One of plaintiff’s petition are denied.
“2.
“That she denies the allegations of Article Two of plaintiff’s petition as written. That in this connection respondent shows that on or about July 1, 1954 the plaintiff came to her home and insisted and threatened her that unless she committed immoral acts with him on that occasion and in the future that he would look to her to pay certain monies advanced to her parents and brother. He admitted that she did not owe him anything or that she had received any money from him whatever. That she informed the plaintiff that she was not an immoral woman and that she would not commit any immoral acts with him then or at any other time in the future and that if he claimed $258.00 due by her people that she would issue him a check for that amount with the understanding that he would never come about her again. That she issued the check for the $258.00 due to the threats made by the plaintiff but she denies that she owes the plaintiff anything or issued the check for any money that she was due and owing to the plaintiff whatever.
“3.
“That she denies the allegations of Article Three of plaintiff’s petition. That on or about September 3rd or 4th, 1954, the defendant again came to your respondent’s home and threatened her that unless she committed immoral acts with him that he would file suit for monies that he claimed to have advanced to her parents and brother. He again admitted that she had not received any money from him whatever and that she did not personally owe him anything. That on or about September 7th or 8th, 1954 she stopped payment on the check for the simple reason that she had issued the check to get the plaintiff to leave her home and not because that she owed him anything and the additional fact that he had admitted upon several occasions that she did not owe him anything.”

On motion of plaintiff for judgment on the face of the pleadings a rule to show cause was issued, and judgment was rendered by the Judge of the City Court of the City of Shreveport, Caddo Parish, in favor of plaintiff as prayed. From this judgment defendant appealed and, after hearing on the appeal, we annulled the judgment and remanded the case for further proceedings. Bevis v. Alexander, La.App., 81 So.2d 113.

Pursuant to our decree the case was tried on the merits, and, as above noted, is now before us on defendant’s appeal from judgment in favor of plaintiff.

In our opinion in the above cited case we observed :

“A careful scrutiny of the pleadings has convinced us the effect of respondent’s answer is to urge failure of consideration for the instrument sued upon.”

We are now confronted with the necessity of determining whether the record before us sufficiently sustains defendant’s plea of want of consideration. On trial below the check was introduced and plaintiff testified that it was given in payment of money loaned. The check, which defendant acknowledges she made and signed, when introduced in evidence was sufficient to make out a prima facie case, and the burden of proof then fell upon defendant requiring the presentation of sufficient evidence to cast doubt upon the reality of the consideration. This principle is well established and is clearly set forth in the opinion of the Supreme Court, and the cases cited in its opinion, in Moss v. Robinson, 216 La. 295, 43 So.2d 613, 617, in which the court declared:

“But if the defendant offers evidence which overcomes the prima facie case, that is, casts doubt upon the reality of the consideration, the ultimate burden of proving consideration, by evidence that preponderates, is on the plaintiff!’ (Emphasis supplied.)

The application of the above principle requires that we examine and determine two questions; first, did defendant successfully offer evidence which cast doubt upon the reality of the consideration for the check, and, second, if we answer the foregoing question affirmatively, did the plaintiff successfully discharge his ultimate burden of proving consideration by a preponderance of the evidence?

Éxamination of the record before us is convincing on the point that defendant succeeded in raising a substantial doubt as to the reality and validity of the consideration. The doubt is established, not only by the testimony of defendant in which she positively denied any obligation to plaintiff, but by a number of strange and apparently unexplained circumstances surrounding the transaction, and by the testimony of the plaintiff himself.

Plaintiff testified that the check was given him in repayment of money which he had loaned to defendant at various times and in varying amounts. Plaintiff asserted that he had kept a record of these loans on the back of an envelope which he carried in his pocket and which he used to refresh his memory on trial of the case. Despite this assistance from a so-called record, we think it remarkable that plaintiff made no effort to testify with any certainty as to the amounts loaned on different occasions, and frankly admitted that he could not give any dates in connection with these advances. After testifying that he had advanced defendant money to the extent of $258, plaintiff testified as follows, on cross-examination :

“Q. Do you have any record, any written record whatever of the dates and the amounts that you 'advanced it? Now, I am speaking specifically of this check, Two Hundred Fifty-eight Dollars. A. Yes, I have the ones in my pocket that I wrote down. She said she wrote hers down.
“Q. What sort of a record is that? A. Why, it is just my personal record that I wrote down on the back of an envelope.
“Q. When did you make that record ? A. At the time she got the money from me.
“Q. Do you have the envelope? A. Yes, sir.
“Q. Where is it ? A. In my pocket.
“Q. Could I see it?”
Mr. Le Sage: “Go ahead.” (Whereupon the witness produced the requested document and tendered it to counsel for the defendant.)
By Mr. Coen.
“Q. Now, this is your record of the Two Hundred Fifty-eight Dollars? A. That is all I have, sir.
“Q. That you claimed to have loaned to Mrs. Alexander? A. I don’t claim it; I did it.
“Q. I understand; but that is the only record you have? A. That is all I have except the check.
“Q. Let me have that again. I am not going to destroy it. Mr. Bevis, I am going to ask you is this the different amounts that you advanced to Mrs. Alexander, you say, from different times? A. Yes, sir. Fifty Dollars, One Hundred Dollars, and just like she picked it up, sir.
“Q. And that is the only record you have? A. It is all I have; yes, sir.
“Q. Now, you say that was advanced to her in cash money? A. Yes, sir. I didn’t charge her anything for the labor. I did a lot of labor, but didn’t charge anything.
“Q. I understand; but that was advanced in the way of cash money. Is that right? A. Yes, sir.
“Q. And, of course, you couldn’t give us the dates that this money was advanced to her? A. I don’t think I could, sir.”

Previously, on direct examination, plaintiff had testified as follows:

“Q. When had you lent this money to her? A. About — I would say about two months, a part of it, the One Hundred Dollars, about two months before that. She gave me good reasons for it, and I had lent her money before, her and her husband. And she paid me cheerfully and signed the check. And I put the check in on something that I owed.
“Q. I show here on the rear of the check the word, the name and signature, ‘John Bevis’. Is that your signature? A. Yes, sir. I always leave my initial out. I just sign ‘John Bevis.’
“Q. Did you present this check to the bank for payment? A. Yes, sir, out at the Pioneer Bank, and they turned it down the first time. She called down there and said she had the money but she hadn’t okayed the check. And she asked me to hold this check until she did okay it. And I did hold the check. And I kept on and kept on, and one Saturday morning I go over and told her that I was about to wear the check out. I was soiling it and wanted her to do something about it, and told her I would go with hér down there. And she said, no, she didn’t need me, she would go. And she carried the boys with her. And I stayed there at her house. And the lady that was here before was at her house. And I showed her this check. She is not here this morning.
“Q. The check is dated July 1, 1954. Was that the date that she gave it to you? A. Yes, sir.
“Q. When was the date that you carried it to the bank, if you recall, approximately? A. I really don’t — I couldn’t tell you definitely the time, but, anyhow, it was after the period of time that I kept asking her if she had okayed it. She said she just hadn’t had time, Mr. Bevis, was the word she used.
“Q. Why was it that she had to okay it; do you know? A. Yes, sir. She told me that she had had her money on saving, and they wouldn’t pay it down there until she did okay it. And she told me the reason she wanted to borrow the money was that she had put up $1,500.00 each for her two little boys for their education, and that was— if I can go into that — was why I let her have it.” (Emphasis supplied.)

Defendant denied having received any money from plaintiff with the exception of $100 which was given to her by plaintiff as a loan to her brother, which fact is conclusively established by the testimony of all witnesses with any knowledge of this particular item.

It must be borne in mind that the check sued upon bears the date of July 1, 1954. Despite plaintiff’s testimony, as above quoted, that he put the check in on something he owed and that he presented the check to the Pioneer Bank for payment where it was turned down, after which he continued to hold the check for a considerable period of time, it is noted from the bank stamps on the reverse of the check that it was presented to the Pioneer Bank and accepted by them on September 11, 1954. The stamps further indicate that in due course the check was received-by the Commercial National Bank, the drawee, on September 13, 1954, at which time it must be assumed that payment was refused, in evidence of which the check bears several “Payment Stopped” stamps. It also appears from the bank stamps that the Pioneer Bank cancelled its previous endorsement. These stamps, as revealed by the instrument itself, are more than sufficient to contradict plaintiff’s testimony, and this circumstance gives added weight to defendant’s contention of lack of consideration.

There are other facts established which bear consideration, namely, that defendant carried bank accounts, both savings and checking; that she had received a lump sum payment of $5,500 following her husband’s death and was receiving an additional payment of $5,000 over a period of ten years; that she was regularly employed by the Southwestern Gas & Electric Company in a secretarial or stenographic capacity, and that she had a regular monthly income, according to her uncontroverted testimony, of approximately $425 per month. These facts have a bearing upon defendant’s insistence that she had no need to borrow money from plaintiff, and, indeed, had not borrowed money from him, which bearing, though indirect, is nonetheless highly corroborative.

In consideration of the above factors, as well as other details which we think it unnecessary to discuss in this opinion, we can only conclude that defendant has successfully raised a very real doubt as to the validity of the consideration for the instrument sued upon. This being so, as we have above observed, the burden of proof then shifted to plaintiff.

Cayeful examination completely fails to justify the finding that plaintiff discharged this ultimate burden. Indeed, there is nothing which adds to the strength and credibility of his original prima facie proof, and it must, therefore, be concluded that plaintiff failed to satisfactorily establish a real consideration by a preponderance of the evidence.

Because we believe the reasons above set forth dispose of the issues, we think it unnecessary to address ourselves to any discussion of defendant’s affirmative defense of coercion. We deem it sufficient to observe that, despite what we regard as the very strange and inexplicable circumstances of the transaction, the evidence on this particular point, consisting merely of assertion by one party and denial by the other, does not justify a conclusion and, in any event, the determination of this proposition is unnecessary to dispose of the appeal.

For the reasons- assigned the judgment appealed from is reversed and set aside and there is now judgment in favor of defendant rejecting plaintiff’s demands at his cost.

GLADNEY, J., dissents.

Rehearing denied; GLADNEY, J., dissenting.


text:
    WASHINGTON FIRE & MARINE INSURANCE COMPANY, Plaintiff-Appellee, v. FIREMEN’S INSURANCE COMPANY, Defendant-Appellant.
    No. 8517.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Rehearing Denied July 11, 1956.

      Jackson, Smith, Mayer & Kennedy, Shreveport, for appellant.
    Roy M. Fish, Springhill, for appellee.
   GLADNEY, Judge.

This appeal presents an action for property damages sustained in an automobile collision which occurred after dark on June 19, 1955, on South Main Street in Spring-hill, Louisiana. After a trial of the case on its merits, there was judgment in favor of plaintiff, subrogee of its insured, Jewell Nix, against defendant, public liability insurer of Dewey Butts. Defendant has appealed, assigning error to the decree in holding: that Dewey Butts was guilty of any negligence constituting a proximate cause of the accident, and that Jewell Nix was not guilty of contributory negligence.

At the time above mentioned Dewey Butts, accompanied by Raydell Smith, was traveling north on South Main Street, and Jewell Nix, accompanied by Peggy Sue Edwards, was driving south on said street. The automobile collision occurred partially in the west lane of traffic while Butts was attempting a left turn into the driveway of The Dothal House, a drive-in restaurant located off the west side of South Main Street. The place at which Butts sought to enter the driveway was about thirty to forty yards south of an intersection controlled by an electric traffic signal light. Prior to commencing his left turn, Butts signalled his intention to do so with directional blinker lights, and when the accident happened he had completed his turn to such an extent that only the rear wheels of his automobile were occupying the west lane of traffic on South Main Street. There is no serious dispute as to the aforestated facts.

The appellee charges Butts was negligent in that he turned left into the path of Nix’ automobile on a straight street, under circumstances that did not afford Nix an opportunity to stop, due either to the fact that he did not see the Nix vehicle in time or, if he did see it, he misjudged the distance the vehicles were apart or the speed of the Nix automobile. Appellant answers with the assertion that Nix was at fault in several particulars which brought about the collision, averring: excessive speed, improper control of his motor vehicle, failing to maintain a proper lookout, and in running a red traffic light.

Forasmuch as defendant makes no counterclaim for damages, but alleges negligence by Nix was the sole cause of the accident and, pleading alternatively, charges Nix with contributory negligence and that he had a last clear chance to avoid the accident, the defense is in essence one of confession and avoidance. Consequently, we pretermit a discussion of the issue relating to defendant’s negligence, and address our principal inquiry to the determination of whether vel non any negligent acts of Nix contributed to the accident.

Nix and his companion testified as they approached the intersection north of The Dothal House a traffic signal light controlling that intersection was green for southbound traffic. Nix further testified he saw the automobile driven by Butts when he was about thirty to forty yards away and a short distance north of the intersection, and at that time Butts was in front of The Dothal House with his blinker lights on, signalling his intention to make a left turn into the driveway across the street. Nix and Miss Edwards testified that as they crossed the intersection they were traveling about twenty or twenty-five miles per hour. Nix testified also that he slowed down when he saw Butts signalling and the latter did not actually begin turning until the two vehicles were about twenty yards apart, at which time Nix testified he applied his brakes and attempted to bring his automobile to a stop.

Butts and his passenger, Raydell Smith, testified that when the turning movement was commenced Nix’ automobile was north of the intersection and at that moment the traffic light at the intersection was red.

Additional testimony was given by Joe David Williams, who observed Nix’ automobile just before the collision and estimated its speed at about forty miles per hour. He stated the impact was sufficient to knock Butts’ automobile several yards to the south and into his own vehicle which was moved about a foot. E. T. Barnard, a city police officer, testified Butts’ car was knocked into the Williams automobile and the two vehicles were moved in the manner about as testified to by Williams. He fixed the point of impact as being about two feet from the west curb.

In assigning reasons for judgment, the trial court stated the negligence of Butts was apparent from the fact that he had turned left in the lane of traffic of the automobile being driven by Nix, and that the only serious question presented was the contributory negligence of Nix, in that Nix did not heed the warning of an overhead traffic signal light at the intersection, that he went past the intersection when the light was red to him, that he was not keeping a proper lookout, that he was apparently going too fast, and that he could have avoided the accident. While commenting that the burden of proof was upon the party making a special plea of contributory negligence, the judge a quo found the testimony relative to whether Nix ran a red light or not was a standoff, that other charges were not substantiated, and that .consequently defendant had failed to substantiate the plea of contributory negligence.

Taking exception to the court’s stated inability to determine whether Nix ran through a red light just before the accident occurred, counsel for appellant insists that error was committed in that, notwithstanding the court’s inability to resolve this coñtrolling' factual issue, it held that the defendant’s driver did not ascertain that he could make a" left turn with safety and was, therefore, guilty of negligence. We think the argument is not entirely sound. Although unquestionably the general rule is that a plaintiff who claims damages must allege and prove the facts necessary to establish defendant’s negligence upon which he predicates his demand, it is also a recognized principle of law that the one pleading contributory negligence on the part of a plaintiff must bear the burden of establishing such plea by a preponderance of the evidence. In the instant case we are of the opinion that plaintiff established a prima facie case in its favor when it adduced evidence showing that Butts was engaged in executing a left turn and an accident occurred in Nix’ lane of traffic. The provisions of the state highway regulatory statute require that a driver shall ascertain before turning upon any highway that there is no traffic approaching from either direction which will be unduly delayed and shall yield the right-of-way to such approaching traffic and not attempt to make a turn unless the way is clear. See: LSA-R.S. 32:235, subd. A, 32:236, subd. A, and 32:237, subd. B. The defendant alleged as a part of its affirmative defense and in support of a plea of contributory negligence that at the time Butts commenced his turning movement the traffic light was red. The contention is that Nix ran a red light, except for which the left turn could have been completed with safety. Whether or not Nix did run the red light is, therefore, pertinent to the plea of contributory negligence and the burden of proof rested upon the defendant to sustain this issue by a preponderance of the evidence.

After reviewing the record we are unable to determine with legal certainty that Nix ran the red light or that he was traveling at an excessive rate of speed. On the other hand, we think it is clear that Nix was negligent and that his negligence was a contributing factor to and a proximate cause of the accident, in that after observing the left turn signal being given from a distance of thirty yards or more, he did nothing more than to reduce the speed of his vehicle to twenty miles per hour. In the instant case the testimony of not only Butts and Smith, but also that of Nix, preponderates to prove Nix had ample distance to anticipate the turning maneuver by Butts and that Nix actually observed the blinking of the Ford lights signalling the left turn. From such a distance and traveling at the rate of speed which Nix claims for his vehicle, from twenty to twenty-five miles per hour, it was the grossest sort of aiegli-gence not to bring his vehicle under more complete control and thus avoid the collision which occurred. Certainly, if Nix was fully observant of the maneuver by Butts, to which he did, in fact, testify, his negligence in not yielding his right-of-way and permit Butts to complete the maneuver was a proximate cause of the accident and a bar to the recovery of damages by plaintiff. H. & G. Furniture Co. v. Duhon, La.App. 1950, 46 So.2d 521; Dickinson v. Hammett, La.App.1947, 30 So.2d 152; Fletcher v. Allstate Insurance Co., La.App., 88 So.2d 445.

We are reluctant to reverse the findings of fact by the trial judge, but in this instance we feel impelled to do so. For the reasons above assigned, we are of the opinion that the accident was due to negligence-of plaintiff, which was a proximate cause of the accident. The judgment from which appealed is reversed and set aside and plaintiff’s action is dismissed at its cost.