author: TATE, Judge.

text:
    Mrs. Margaret Lill STARING et al., Plaintiffs-Appellees, v. William L. GRACE, Jr., Defendant-Appellant.
    No. 4438.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Rehearing Denied Nov. 19, 1957.
    Writ of Certiorari Denied Jan. 9, 1958.

      Obier & Middleton, Plaquemine, for appellant.
    Borron, Owen, Borron & Delahaye, Plaquemine, for appellee.

      . Tie Shell Oil Company, defendant’s mineral lessee, was originally a co-defendant; but said lease having expired, Shell is not a party to this appeal.

   TATE, Judge.

The widow and children of Dr. Houston Staring brought this jacitory action to establish their right to possession of a certain 61-acre tract in Iberville Parish and to annul a 1939 tax sale thereof to defendant Grace. By defendant’s answer claiming title, this suit was converted by defendant into a petitory action, with defendant having the burden of proving his title to the land.

Defendant appeals from adverse judgment recognizing plaintiffs’ ownership of the property in question and annulling the tax deed upon which defendant relies as the basis of his title.

This tract originally belonged to Dr. Staring’s father, Joseph Staring, who died in 1920. (Dr. Staring himself passed away in 1928.) The property was assessed on the tax rolls of Iberville Parish to the “Estate of Joseph Starring” from 1920 right on up at least through 1951, immediately prior to the present suit; and it was under this assessment that the land was sold on July 1, 1939, for the unpaid taxes of 1938 by tax sale deed recorded on July 6, 1939.

Plaintiffs urge the invalidity of the tax sale due to lack of notice to the true owners, relying upon such cases as Di Giovanni v. Cortinas, 216 La. 687, 44 So.2d 818; Gottlieb v. Babin, 197 La. 802, 2 So.2d 218; see also Scheller v. Goode, La.App. 1 Cir., 69 So.2d 96. The record indicates this contention as to the original invalidity of the tax sale to be correct.

The serious question before us, however, is whether despite this original invalidity, plaintiffs are barred from attacking the tax sale by the constitutional peremption of five years, Article 10, Section 11, La. Constitution, of 1921, LSA-Const., which applies even when no notice of the tax sale is given.

Only two grounds are recognized to evade application of this peremptive bar to annulment of tax sales despite any original invalidities thereof: (1) proof of prior payment of taxes for which the property was sold; (2) continued corporeal, physical possession of the property after the tax sale, by the tax debtor previously owning the property, sufficient to prevent the accrual of the five years’ peremption in favor of the tax purchaser at the tax sale— such open and active possession being said to constitute a constant protest against the tax title preventing the accrual of prescription. Magnolia Petroleum Co. v. Marks, 225 La. 805, 74 So.2d 36; Thurmon v. Hogg, 225 La. 263, 72 So.2d 500; Cortinas v. Murray, 224 La. 686, 70 So.2d 589; King v. Moresi, 223 La. 54, 64 So.2d 841; Allen v. Morgan, La.App. 2 Cir., 80 So.2d 202; Scheller v. Goode, La.App. 1 Cir., 69 So.2d 96.

There is and was no habitation upon the tract in question, which was (except for the cultivateable front 5-15 acres) mostly wood and marsh land. Tenants of the plaintiffs were proved to have exercised open, corporeal, and physical possession by agricultural cultivation of the property up to 1933, and from 1946 up to the date of the trial. During the period between 1933 and 1946, there was no agricultural cultivation, occupancy by tenants, or timber cutting exercising possession by or for plaintiffs; and although on three sides the neighboring landowners (not the tax debtors) maintained the fences, the barbed wire strands were down along the tract’s front, or road side, and the land was an open pasture for the neighborhood cattle. During this interval (1933-1946) that the tract was unrented, the property was periodically inspected for timber trespassing by plaintiffs, their relatives, or Harry Reece, a friend who lived near the property.

Based upon the burden of proving his title placed upon defendant Grace, as plaintiff in the petitory action, the learned trial court held that Grace, as tax sale purchaser, had the burden of proving that possession of the tax debtors had not suspended the peremptive five years. The trial court then held that in view of the admitted non-possession of the tax purchaser following the tax sale, the sole possession over the tract in question had continued to be exercised by the tax debtors through their general supervision of the tract and through their continued payment of the subsequent taxes thereupon.

It is with some regret that we must disagree with the conclusions of our learned brother below, recognizing as we must that our contrary resolution of this legal question forces us to reach a result which does not strike us as being as fair as that which he reached. (For by the simple payment of $10.98 back in 1939, without taking the slightest step to take possession of the land or to notify the widow of her lapse in the-tax payment, the tax purchaser obtains by the result we have reached title to this valuable tract of land, upon which he never paid the taxes and upon which the widow has paid the taxes for herself and the other owners — her children — every year from. 1920 up to the present, except for those-of the year 1938.)

But the party relying upon possession as an avoidance of the prescription in-favor of the tax purchaser appears to have the burden of proving same, Board of Com’rs, etc. v. Sperling, 205 La. 494, 17 So.2d 720. Further, such prescription does-accrue in favor of the tax sale purchaser if the possession by the tax debtor is merely civil or constructive, such as by payment of taxes or that following an initial corporeal possession; for the only type of possession permitted by its nature of continuous protest to serve to prevent the perfection of the peremptive bar to annulment of the tax sale is an actual, physical, active, open, and continuing exercise of the right of possession by the tax debtor, Meshell v. Bauer, 215 La. 619, 41 So.2d 237; Stone v. Kimball’s Heirs, 199 La. 240, 5 So.2d 758; Pill v. Morgan, 186 La. 329, 172 So. 409; Levenberg v. Shanks, 165 La. 419, 115 So. 641; Allen v. Morgan, La.App. 2 Cir., 80 So.2d 202, 203.

For instance, in Board of Com’rs v. Sperling, 205 La. 494, 17 So.2d 720, at pages 722-723, it is stated that the burden of the tax debtors seeking to avoid the peremptive bar to annulment of the tax sale is “to show actual corporeal possession by which they exercised some claim of exclusive dominion over the property, a claim operating as a continuing protest against the tax title.” (Italics ours.)

That the nominal supervision over the land exercised by plaintiffs’ friend during the years 1933 and 1946 (and specifically from July 6, 1939, when the tax sale was recorded, through July 6, 1944, when the peremptive five years expired) does not constitute such apparent corporeal detention of the tract as to satisfy this jurisprudential test of the possession required, can we think best be shown by the actual testimony of plaintiff Mrs. Staring and Harry Reece as to the nature of his supervision over the property.

Mrs. Staring’s testimony is as follows:

“A. Well, that was beginning on the termination [in 1933] of the lease with Barnes; then is when I asked Harry Reece, or he asked me if he might run his cattle in there, and I said he might, with the consideration of looking after the property for me, and he did so until the time that I leased to the Thomases. (Tr-32)
« * * * * * *
“A. Well, if it was at his discretion to cultivate that — he had permission to do what he wanted with the land — [although Reece did not actually cultivate the land] I wouldn’t have objected to it. I didn’t receive any return from it because my agreement with him was as I stated to you.
“Q. Mrs. Staring, then you received no rent from this arrangement that you had?
“A. I considered the fact that lie looked after the property and acted as overseer as rent.
“Q. Were you ever given any information as to whether or not there was any fences around the property at that time?
“A. Well, if he wanted to keep them up, that was his responsibility.” (Tr-33)

In the words of Harry Reece, the relationship is set forth as follows:

“Q. Then what did she ask you to help her with down there? What were you to do with the property? A. She told me this: ‘Harry, I want you to look over my property, because sometimes I am up on the Highland and when I need a man or something on the place, you look out and get me a good man,’ and I did do that which she asked me. Sometime ago, after looking over it, and seeing how things were, she come to be short for a man, and I looked out and got her one.
“Q. I don’t want you to say anything you don’t know, Harry; but before you went on there, before you got him on there, you had been talking to Mrs. Staring and you were looking after somebody to put on the property? A. That’s right. She used to come down all the time and tell me, Harry, you try to find me a good man. I was out looking and trying to find a man.
"Q. Did she ask you to watch out after the timber on the property? A. She sure did ask me that.
"Q. Did you check it from time to time? A. I did. I’d go across the field and go back in there sometimes and check it.” (Tr-117-8)
“Q. Did she tell you that you could have part of the timber if you needed it? A. She told me I could have anything I wanted on that place if I needed it, anything I wanted.
“Q. Did you ever need or take any of this? A. No, sir; I wouldn’t take her timber, I never would use any of her timber.
“Q. But you had a right to do so? A. I could have done it if I wanted to. I could have did it, yes. I never would do it though.” (Tr-119)

Thus, although as between Mrs. Staring and Barnes, the latter may have had the right to exercise open, active, corporeal possession of the property by cultivation, fencing, timber cutting, or otherwise; this right to corporeal detention was not actually exercised by Barnes so as to constitute an open and apparent and obvious protest against the tax sale preventing the running of the peremptive five years after which the tax deed was constitutionally immune from attack.

In oral argument, very able counsel for appellee also contended that the record could support a finding that the 1938 taxes were paid, since the tax rolls were marked “Paid” for the 1938 tax liability for the tract and since Mrs. Staring testified that she thought she had paid the taxes every year. The burden, however, is upon the tax debtor to prove payment of the taxes for which the property was sold, Stone v. Kimball’s Heirs, 199 La. 240, 5 So.2d 758. Although Mrs. Staring stated that she had receipts for most of the taxes paid, she did not introduce any receipt for the 1938 taxes. We may take judicial notice that in many parishes after the annual tax sales the unpaid taxes are marked “paid” upon receipt of the payment by the tax purchaser, see e. g. Wright v. Cyprian, La.App., 96 So.2d 882; and, as in that case, rely upon the general presumption that public officials properly carry out their duties so that, in the absence of evidence to the contrary, it is properly presumed that the tax sale of the property would not have been made had the taxes been paid prior thereto.

As in the present case, in Cortinas v. Murray, 224 La. 686, 70 So.2d 589, the purchaser at tax sale, beyond recording his title, did nothing to take possession of the land sold at tax sale and further permitted the tax debtor to pay the taxes through the succeeding years without attempting to pay them himself. The following remarks therein at 70 So.2d 591 seem to be applicable to the present case:

“ * * * It is settled by a long line of cases that a tax purchaser is not required to take corporeal possession of the property; it suffices in cases of vacant land, for him to record his tax deed which results in giving him civil or constructive possession and is all that is required to entitle him to the protection of the constitutional peremption. * * *
“Nor does the fact that plaintiff [tax sale purchaser] permitted the tax debt- or to pay taxes on the property during the five year period after the legal situation. If the taxes had not been paid, plaintiff stood to lose the property, but his mere silence in not informing the tax debtor of his purchase and in allowing her to pay the tax in the belief that she was still owner, while uncom-mendable, does not provide a legal ground for denying to him the benefit of the constitutional peremption.”

Viewing the harsh results of the present case, we note the argument that the strong public policy previously favoring validity of tax sales — that is, to protect the public fisc, see e. g. Mayer v. Ozenne, La.App. 1 Cir., 87 So.2d 135—no longer should apply in the present decade when land taxes no longer form a substantial portion of governmental revenues. But this argument, perhaps, addresses itself to the legislature rather than the courts.

For the foregoing reasons the judgment Of the District Court is reversed, and it is Ordered and decreed that the tax title of W. L. Grace, Jr., be quieted and that he be recognized to be the owner of:

A certain tract of land lying and situated in the Parish of Iberville, Louisiana, on the south bank of Bayou Manchac and described as Lots 4 and 5 of Section 27, Township 8 South, Range 1 East, Southeastern District East of the Mississippi River, containing 61.56 acres.

Plaintiffs-appellees to pay all costs thereof.

Reversed and rendered.


source: Caselaw Access Project

license: Public Domain

text:
    Clarence V. JOHNSON et al., Plaintiff, Defendants in Reconvention, Appellants, v. James R. WILSON, Defendant, Plaintiff in Reconvention, Appellee.
    No. 4453.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Rehearing Denied Nov. 19, 1957.

      Seale, Kelton & Hayes, Baton .Rouge, for appellant.
    Joseph A. Gladney, Baton Rouge, for appellee.
   TATE, Judge.

This damage suit results from a collision between appellant' Johnson’s overtaking automobile and appellee Wilson’s left-turning pickup truck. Johnson and his liability insurer appeal from adverse judgment in favor of Wilson upon the latter’s reconven-tional demand, after trial before a jury.

The accident in question occurred at approximately 1:00 p.m. on November 28, 1955, about eight miles north of Baton Rouge on the Plank Road, a two-lane, hard-surfaced State highway. Prior to the accident, both vehicles were travelling northwards. Wilson was bringing his servant to her home, which was on the west (or his left) side of the highway.

As is not unusual, testimony produced on behalf of Wilson and that produced on behalf of Johnson is sharply contradictory. We see no need to detail the discrepancies. In reaching a verdict for appellee Wilson, the jury must necessarily have accepted Wilson’s version of the accident. The factual determinations of the trier of fact, particularly when based upon an evaluation of the credibility of opposing witnesses, should not be disturbed on appeal unless manifestly erroneous. Jones v. Jones, 232 La. 102, 93 So.2d 917; Fouquier v. Fouquier, 231 La. 430, 91 So.2d 591; Guidry v. Crowther, La.App. 1 Cir., 96 So.2d 71. Furthermore, the District Court, who saw and heard the witnesses, refused to grant a new trial upon the appellants’ application for same.

We think, therefore, that for appellate purposes the facts as shown by the testimony accepted by the trier of fact as correct, somewhat corroborated by the physical circumstances of the accident, must be taken to be proved to be as follows:

At the place of the accident, the highway passes through open country, and was a relatively straight stretch. Approximately 500' from where he was to turn left into his maid’s gravelled driveway, Wilson observed Johnson’s car approaching from his rear at a distance of from one-fourth to one-half mile; and he commenced rolling his glass down and made his manual left turn signal approximately 400' from the intended turn. When Wilson was 80-100' from his turning point, he saw the Johnson car again in his rear view mirror this time 300-400' behind; he looked for traffic coming from the north and, seeing none coming, pulled over astraddle the center line. At the time of commencing this gradual left turn, Wilson was some 70' south of his maid’s driveway, and had slowed the speed of his vehicle from 35 m. p. h. to 20 m. p. h.

Wilson’s truck was struck when his front wheel was approximately four feet to the left of the center line and the rear wheel approximately two feet left thereof, and when he was 35' south of his maid’s driveway. His left rear wheel was knocked forward, and his truck overturned; impact was made by Johnson’s right front fender.

Although Wilson stated that it was not apparent from his rear view mirror that Johnson’s overtaking vehicle was approaching him at an excessive rate of speed, the testimony of Johnson and his passengers indicated a speed of at least 60-70 m. p. h., and that Johnson was inattentive and did not observe the traffic ahead partly because of his greater interest in selling one of his passengers an automobile. That Johnson in his overtaking vehicle was grossly negligent does not require extended discussion.

The chief question before us is whether Wilson is barred from recovery by any contributory negligence on his part in his turning left in the manner he did and with the knowledge he had that Johnson’s vehicle was overtaking his own. Our resolution of this question requires some discussion of the relative duties of forward vehicles intending to make a left turn and of overtaking vehicles intending to pass.

In Crow v. Alesi, La.App., 55 So.2d 16, certiorari denied, this Court held that the sole proximate cause of an accident involving an overtaking panel truck and a stopping or stopped gravel truck, was the failure of the overtaking driver to observe the signalled gradual stop of the forward vehicle. The accident in question, like the present, occurred on the Plank Road highway north of Baton Rouge. In discussing the duties of the forward driver, we stated, 55 So.2d 17, citing many cases:

“According to the law and jurisprudence of this state, when two automobiles are being driven along a public road in the same direction, on a country road, the driver of the front car holds no duty to the car in the rear, except to use the road in the usual way in keeping with the laws of the road, and until he has been made aware of the presence of such rear car by signal or otherwise, he has a right to1 assume that there is no other vehicle in close proximity in his rear or, if there is one there, it is under such control as not to interfere with his free use of the road in any lawful manner. And in the absence of facts or circumstances that would put the driver of an automobile on notice of the near approach of another machine from the rear, he may drive slow or fast, select the parts of the road best suited to travel, stop or start at will. And where two automobiles are being driven along a highway in the same direction, the forward car has the superior right.”

See also: 5 Am.Jur. 656, “Automobiles” Section 280; 2 Blashfield, Automobile Law and Practice 107, Section 931.

At 2 Blashfield, Automobile Law and Practice 170, Section 952, “Duty of Rear Driver on Signal of Driver of Front Car of Intention to Turn”, it is stated (footnotes omitted):

“Where two vehicles are travelling in the same direction on the same street, one in the rear of the other, it is the duty of the driver of the rear car to exercise reasonable care with respect to the forward car, and, if the driver of the latter indicates by the proper signal his intention of turning into another or cross street or private drive, to yield to him that right; and upon the signal of the front driver of an intent to turn, the drivers of trailing vehicles must use ordinary care to keep their vehicles under such control as to avoid coming into collision with the vehicle from which the signals were given. But, after the driver of rear vehicle has sounded his horn to indicate his desire to pass, the driver in front should use ordinary care to avoid interference in executing such maneuver, and if the driver in front, although signalling his intention to turn to the left, turns so suddenly as to collide with the rear vehicle so attempting to pass, the former must be deemed negligent.
“A driver of an overtaken vehicle suddenly turning left without seeing the overtaking automobile, or without giving a warning signal, is negligent, and the overtaking driver is not bound to anticipate that the forward driver intends to turn.
“Questions sometimes arise as to the respective rights and duties of the drivers of front and rear cars or vehicles, when the driver in front desires to turn to the left, not at a street intersection, for the purpose of reaching his home or for some other legitimate purpose. In such case the rule is that, when the driver in front gives the statutory signal of his intention to turn to the left to a particular destination on the left side of the road, it is the duty of the overtaking driver to use reasonable care to so control his car as not to injure him, either by slowing up or by passing to the'rear as the law of the road requires. Under such circumstances their respective rights are correlative, the driver in front having the right to turn into his home, using reasonable care in doing so, and the rear driver having the right to pass him, exercising reasonable care and observation, and incidentally observing the law of the road if he can do so reasonably under the circumstances.
“When the driver in the rear, notwithstanding such signal, attempts to pass to the left as the former is making his turning movement and collides with him, he is guilty of negligence, making him liable for the consequences of the collision. Where neither the passing driver nor the turning driver gave signals of their intentions it has been held that the passing driver, because of his failure to signal his intention to pass, could not recover for injuries resulting from a collision when the forward car turned left.”

Louisiana statute provides as to the overtaking driver: “The driver of a motor vehicle shall not follow another vehicle more closely then is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and condition of the highway,” LSA-R.S. 32:234, subd. A. A vehicle overtaking another “shall pass at a safe distance to the left thereof” and “shall give audible and sufficient warning of his intention before overtaking, passing or attempting to pass a vehicle proceeding in the same direction”, LSA-R.S. 32:233, subds. A, B.

The following other statutory provisions pertinently affect the duty of forward drivers intending to make a left turn.

LSA-R.S. 32:236 provides:

“A. The driver of any vehicle upon a highway of this state, before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, and, if any pedestrian may be affected by such movement, shall give clearly audible signal by sounding the horn; and, whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this Section, plainly visible to the driver of such other vehicle, of the intention to make such movement.”

LSA-R.S. 32:235 provides:

“B. * * * [T] driver of a vehicle * * * intending to turn to the left shall approach such intersection in the lane for traffic to the right of and nearest the center line of the highway and in turning shall pass beyond the center of the intersection, passing as closely as practicable to the right thereof before turning to the left. * * *”

LSA-R.S. 32:237, subd. E provides:

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

As we recently reiterated in Jenkins v. Fidelity & Cas. Co., La.App., 92 So.2d 120, at page 123:

“It is well settled in Louisiana that the operator of a motor vehicle who desires to make a left turn, carries the responsibility of being certain that the turn can be made without danger to normal overtaking or oncoming traffic, and he must yield the right of way to such vehicles.” (Italics ours.)

Applying these general principles to the infinitely variable circumstances of the accidents concerned, cases involving the left-turning forward driver struck by an overtaking or oncoming vehicle fall into at least three general patterns:

(1) Cases holding that the sole proximate cause of the accident was the negligence of the driver turning left suddenly and/or without signal and in the immediate path of and without yielding the right of way to approaching traffic. Washington Fire & Marine Ins. Co. v. Firemen’s Ins. Co., 232 La. 379, 94 So.2d 295; Castille v. Houston Fire & Cas. Ins. Co., La.App. 1 Cir., 92 So.2d 137; Aetna Cas. & Surety Co. v. Crow, La.App. 1 Cir., 86 So.2d 212; Messina v. Audubon Ins. Co., La.App. 1 Cir., 67 So.2d 143; Graves v. Riser, La.App. 2 Cir., 62 So.2d 163; Day v. Roberts, La.App. 2 Cir., 55 So.2d 316; or holding that the left-turning driver had the clear chance to avoid the accident, Cassar v. Mansfield Lbr. Co., 215 La. 533, 41 So.2d 209.

(2) Cases holding that the negligence of the left-turning driver in doing so without signalling and/or yielding the right of way and/or observing the rear vehicle; and of the overtaking driver in not making sufficient observation and/or failing to slow and/or continuing to approach the turning vehicle at a high speed; both contributed to the accident so as to bar recovery by either party. Leonard v. Holmes & Barnes, Ltd., 232 La. 229, 94 So.2d 241; Fox v. Haynes, La.App. 2 Cir., 86 So.2d 583; LaBarre v. Booth, La.App. 1 Cir., 84 So.2d 626; Saba v. Brown, La.App. Orleans, 61 So.2d 593; Fidelity & Cas. Co. of New York v. Major Oil Co., La.App. 2 Cir., 55 So.2d 326; Seaboard Ins. Co. v. Maryland Cas. Co., La.App. 2 Cir., 47 So.2d 353. See also: Washington Fire & Marine Ins. Co. v. Wallace Co., La.App. 2 Cir., 92 So.2d 777 and Jenkins v. Fidelity & Cas. Co., La.App. 1 Cir., 92 So.2d 120.

(3) Cases holding free of negligence the left-turning driver, who made proper signal and commenced a left turn upon a reasonable belief after observing approaching traffic that such turn would not unduly interfere with the progress of such approaching traffic despite which an accident occurred; the sole proximate cause of which was held to be the excessive speed, lack of lookout, and/or lack of control on the part of the approaching vehicle in failing to observe the seasonably-signalled left-turn intent of the other vehicle and continuing an approach theretowards without attempting to bring the approaching vehicle under control. Delaune v. Crawford, La.App. 1 Cir., 39 So.2d 94; Chandler v. Sentell, La.App. 1 Cir., 35 So.2d 260; Deffez v. Stephens, La.App. 1 Cir., 30 So.2d 154; Goynes v. St. Charles Dairy, Inc., La.App. 1 Cir., 197 So. 819; White v. American Employers Ins. Co., La.App. 1 Cir., 197 So. 803. See also: Moncrieff v. Lacobie, La.App. 1 Cir., 92 So.2d 471; Moore v. Benson, La.App. 2 Cir., 68 So.2d 250; Sumrall v. Myles, La.App. 1 Cir., 51 So.2d 411; Russo v. Aucoin, La.App. 1 Cir., 7 So.2d 744; Weit-kam v. Johnston, La.App. Orleans, 5 So.2d 582.

We do not think to be manifestly erroneous the determination of the trier of fact that the instant accident falls within the group of cases of the latter factual pattern, so that the negligence of the overtaking driver herein constitutes the sole proximate cause of the present accident.

We find the instant facts to be very similar to those in DeLaune v. Crawford, La.App., 39 So.2d 94, decided by this court, where we held that the plaintiff’s recovery was not barred, when his driver made (as here) a “slow turn” left and was struck from behind by an overtaking vehicle. The latter’s driver’s excessive speed, lack of lookout, and imprudent attempt to pass plaintiff’s vehicle were held to be the sole proximate cause of the accident. In so holding, we observed (quoting from an earlier decision), 39 So.2d 100:

“ * * * While a motorist in making a left hand turn on a highway in the face of oncoming traffic is required to exercise great caution and see that such turn can be made in safety, such a rule does not prevent the motorist from making the left turn if the oncoming traffic is of a sufficient distance to permit the execution thereof prior to the reaching of the oncoming traffic at the turning point. In judging whether or not such a left hand turn can be made in safety, a motorist has the right to assume that the oncoming traffic is traveling at a lawful speed and that the driver thereof is exercising a proper lookout and has the vehicle under proper control.”

While perhaps it may be argued that the DeLaune case is somewhat distinguishable from the present, since the presence of the overtaking vehicle was obscured by the hump of an overpass over which it was approaching, of course as noted in the above quotation, even had the turning driver observed same “a sufficient distance” behind her, she was entitled to proceed with her left turn upon the assumption that such rear vehicle was travel-ling at a legal speed and with proper lookout and sufficient control. See White v. American Employers Ins. Co., La.App., 197 So. 803, also involving “a slow and gradual” left turn by a car struck by an excessively speeding and deficiently observing oncoming driver, whose negligence was held to be the sole proximate cause of the accident.

In the present instance, we think that having persistently signalled and manifested his left-turning intention, Wilson was under no duty to expect such grossly excessive speed and such grossly deficient lookout and control on the part of the overtaking Johnson vehicle. The cases relied upon by appellant are in the main distinguishable as involving left turns made suddenly or without warning when the overtaking or oncoming vehicle was far closer than in the present instance or under circumstances wherein the forward driver should reasonably have observed that his turning would create danger to the progress of normal overtaking traffic.

Appellant relies on Michelli v. Rheem Mfg. Co., La.App. Orleans, 34 So.2d 264, to the effect that the excessive speed of the other vehicle involved in an accident with a left-turning driver was not a contributory proximate cause of the accident therein involved. It is sufficient to state that the Michelli case involved a left turn in the face of an oncoming vehicle, not an overtaking vehicle as herein. Especially because of his statutory duty to maintain sufficient distance between himself and forward vehicles, LSA-R.S. 32:234, subd. A, a driver has a greater duty to maintain a lookout and the consequently indicated speed and control of his vehicle with regard to traffic which he is overtaking' in his own lane ahead, than to the oncoming traffic i'n the other or opposite-bound lane.

As was stated by the Supreme Court in Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165, at page 169, in denying recovery to an overtaking driver who failed to observe the slowing of the forward vehicle preparatory to its intended left turn:

“It is the duty of the driver operating an automobile, upon approaching another automobile from the rear while both cars are travelling in the same direction, to exercise a great deal of care. He must look out for the person ahead, realizing that that person is engaged in handling a high-powered machine requiring constant attention and that his lookout is forward and not backward. The driver of the rear car must keep a safe distance behind the front car and must have his machine under such control as to avoid injury to the car ahead or to his own car so long as the-driver of the front car is driving in accordance with his rights. The evidence in this case shows that plaintiff was not operating his car in accordance with this rule. He was driving his automobile at an excessive rate of speed, paying little or no attention to the surrounding facts and circumstances, with the result that he suddenly came upon a truck that was slowing down [preparatory to making a left turn], causing plaintiff to turn to the left in order to avoid a rear-end collision. In other words, the record in this case discloses that the accident was caused by plaintiff’s negligence and not by the negligence of defendants’ truck driver.”

See also cases holding the negligence of an overtaking vehicle striking a forward vehicle to be the sole proximate cause of the accident, such as Beard v. A. R. Blossman, Inc., La.App. 1 Cir., 94 So.2d 87; Price-Dunham-Fenet Brick Mfg. Co. v. Reeves, La.App. 1 Cir., 85 So.2d 635; August v. Delta Fire & Cas. Co., La.App. 1 Cir., 79 So.2d 114; Mellow Joy Coffee Co. v. Continental Cas. Co., La.App. 1 Cir., 63 So.2d 888.

Appellants argue that Wilson’s long angling left turn, drawing over the center-line of the highway prior to reaching the point of turn, did not comply with the statutory manner of making a left turn, LSA-R.S. 32:235, subd. B, and constituted negligence barring his recovery.

Assuming that the forward driver was negligent in pulling over some 70-odd feet prior to the driveway and straddling the center of the highway preparatory to a left turn thereinto, nevertheless the overtaking driver — at that time some 400 feet distant behind — was under a duty to observe this maneuver of the forward vehicle and not to continue at excessively high speed in his unwarned onset upon the forward car; it was his duty, as observed in a similar situation, “either to have waited until he was certain of the [forward] laundry truck or have approached that truck with his own truck under such control as to stop promptly and avoid the collision.” Myers v. Traders & Gen. Ins. Co., La.App. 2 Cir., 81 So.2d 130, at page 132. See also Callia v. Rambin, La.App. 2 Cir., 78 So.2d 44, 45. If the overtaking driver had sounded his horn and the forward vehicle straddling the center of the highway had violated its statutory duty by not giving way, the driver of the overtaking vehicle may still have been held solely liable for the accident on the ground that he had the last clear chance to avoid same, cf. Greer v. Ware, La.App. 2 Cir., 187 So. 842. All the more so in the present case, where the evidence preponderates to the effect that the overtaking driver did not sound his horn (until immediately before the impact) but continued unabated his approach at high speed despite the continuing movement of the forward vehicle, astraddle the center of the highway and veering leftward, commenced when the rear vehicle was about four hundred feet behind, with apparent unawareness of the continued approach and intention to pass of the other vehicle. A violation of a statutory duty does not constitute actionable negligence nor bar recovery unless such violation is a proximate cause of an ensu-ing accident. Sanders v. Hisaw, La.App. 1 Cir., 94 So.2d 486; Rayburn v. Cotton Baking Co., La.App. 2 Cir., 68 So.2d 260.

We are unable to accede to appellants’ forceful argument that the left-turning driver is always barred from recovery when he proceeds to attempt a left turn, despite the presence of other traffic upon the highway. The left-turning driver is required to yield the right of way to and prohibited from attempting his turn unless the way is clear from — not all approaching traffic, howsoever distant, but— only approaching traffic “which will be unduly delayed” by his turn, LSA-R.S. 32:235, subd. A. “The turning driver, after a proper signal for a left turn and observing nothing that would indicate his signal is not being obeyed, is entitled to assume that other drivers will obey the law and exercise reasonable care. Where he gives a proper signal, he is not required to pull off the highway to the right and wait for a vehicle, travelling in the same direction, to pass,” 2 Blashfield, Automobile Law and Practice 477, Section 1171.

As Judge Regan for the Orleans Court of Appeal stated several times, most recently in Ward Baking Company v. City of New Orleans, 94 So.2d 720, at page 722-23, in determining what is negligent conduct “there is no fixed rule; the facts and environmental characteristics of each case must be considered and treated individually. Judicially we are tending more and more towards an appreciation of the truth that, in the last analysis, there are few rules; there are principally standards and degrees for the reason that no one is so gifted with foresight that he or she could anticipate every possible human event and prescribe the proper rule for each.” The line cannot be drawn in the abstract as to where, under the infinitely variegated factual patterns possible, the actual actions and reactions of living everyday motorists conform (or fail to do so) to those within the ambit permitted to the mythical reasonably prudent motorist using ordinary care. Fully recognizing that this is a case close to the shadowy area within which the leading driver’s left turn despite the presence of traffic to his rear shades from a noncontributory to a contributory cause of the accident, we cannot say, on the basis of the record before us, that the jury, as the trier of fact, committed manifest error in finding that the sole proximate cause of the accident was the excessive speed, the gross lack of lookout, and the lack of control of Wilson, the overtaking driver, or that at any rate he had the last clear chance to avoid the accident in question.

This suit for property damage to his car was brought by Johnson, “individually and for the use and benefit of the American Automobile Insurance Company”, his collision insurer, which was also his liability insurer; defendant Wilson answered, and reconvened for his own damages not only against Johnson, but also against the American Automobile Insurance Company, Johnson’s liability insurer. Appellants urge that the insurer, not a party to the suit, could not be made so by reconventional demand, citing Lyons v. Fry, 112 La. 759, 36 So. 674.

However, while this may be so as to' a genuine third party, it is well settled that a reconventional demand may be asserted in the same proceedings against a real party in interest appearing through a nominal plaintiff. Smith v. Atlas Steam Cordage Co., 41 La.Ann. 1, 5 So. 413; Dugas v. Lewis-Chambers Const. Co., La.App. Orleans, 187 So. 117; 80 C.J.S. Set-Off and Counterclaim § 49, p. 80. And it appears from the face of the petition, as well as is shown by the record, that the said insurer made defendant in reconvention was a real party in interest instituting the present suit.

With regard to the question of the damages awarded, appellant urges that we cannot consider the deposition introduced in evidence of a neurosurgeon from Shreveport, on the ground that the record does not affirmatively show a proper foundation for its introduction. By this, counsel in brief indicates that the record does not show that the Shreveport physician was “at a greater distance than 100 miles from the place of trial [Baton Rouge] or hearing or is outside the state”, LSA-R.S. 13:3745, the apparent predicate upon which the testimony of the physician was introduced by deposition rather than through his personal presence. Aside from the fact that we perhaps are permitted to take judicial notice that Shreveport is more than 100 miles distant from Baton Rouge, we are not inclined to believe that a blanket objection to the admissibility of a deposition, not specifying at the time the basis thereof (and thus giving an opportunity to the trial court to rule upon the defect or to opposing counsel to remedy same), adequately preserves the technical grounds thereof for appellate review.

Appellant likewise urges, without citation of authority, the proposition that this neurosurgeon’s testimony was inadmissible because the diagnosis was that of a “definite possibility” of a herniated disc as well as whiplash injuries, and thus does not meet the alleged test of proving same with reasonable certainty. This objection of course, goes to the weight rather than the admissibility of the testimony. The. proof of an injury to a legal certainty means proving same by a preponderance of the whole evidence, which includes, inter alia, the medical possibilities and probabilities, the patient’s complaints and the reasonableness thereof in relation to the initial trauma and objective indicia, and the evaluation by the trier of fact of the genuineness of the patient’s complaints in the context of the meanings to be assigned to same, if genuine, according to the medical experts. Furthermore, in a sense the testimony of the physician was establishing to a legal certainty Wilson’s claim for damages because of a definitely possible herniated disc, in itself this being compensable in damages if a result of the accident.

Special damages of $507.37 were stipulated, and the jury additionally awarded Wilson $8000.00 for his personal injuries (including some $300 of additionally proven minor special damages such as a loss of earnings). The personal injuries consisted of a painful whiplash injury; with (at the time of trial) a definite possibility of a herniated intervertebral disc, based upon objective symptoms and subjective complaints, and the consequent definite possibility of either permanent disability or of major surgery costing about $1,350 in all and a six months’ loss in earnings or an additional $1,320, in special damages. (Counsel'attaches to brief a report of the specialist, > after a myeologram made subsequent to trial, verifying the existence of a herniated cervical disc; which, not having been introduced in evidence, cannot be considered in maximization of the award.) We cannot say that the award in question was either manifestly excessive or manifestly inadequate, and beyond the discretion under Article 1934, subd. 3, LSA-Civil Code, of the trier of fact in fixing such awards. Baker v. U. S. Fire Ins. Co., La.App. 1 Cir., 89 So.2d 405; Merchant v. Montgomery Ward & Co., La.App. 1 Cir., 83 So. 920; Hogg v. Department of Highways, La.App. 2 Cir., 80 So.2d 182.

For the above and foregoing reasons, the judgment of the District Court is affirmed.

Affirmed.


author: REGAN, Judge.

text:
    Philip J. RAGUSA et ux. v. AMERICAN METAL WORKS, Inc.
    No. 20808.
    Court of Appeal of Louisiana. Orleans.
    Oct. 21, 1957.
    Rehearing Denied Nov. 18, 1957.

      Charles E. Richards, New Orleans, for plaintiffs and appellees.
    Legier, McEnerny & Waguespack, Harry McEnerny, Jr., New Orleans, for defendant and appellant.
   REGAN, Judge.

Plaintiffs, Mr. and Mrs. Philip J. Ragusa, owners and occupants of the property designated by the municipal number 228 N. Alexander Street instituted this suit endeavoring to enjoin the defendant, American Metal Works, Inc., a neighbor, from operating its business in such a noisy manner as to constitute a nuisance.

Defendant pleaded the exceptions of no right or cause of action, which were apparently overruled, and then answered conceding that the operation of its machinery causes a normal amount of noise but asserted in defense thereof that the various noises emanating from its plant do not create a condition which falls within the category of a legal nuisance and therefore plaintiffs’ reqeust for injunctive relief should be dismissed.

From a judgment in favor of plaintiffs enjoining defendant from operating its business so as to “cause the emission of any loud, irritating, screechy or similar noises, and which would disturb or interfere with the normal rest, relaxation or sleep of the residents in the vicinity, between the hours of seven o’clock p. m. and seven o’clock a. m.,” the defendant then prosecuted this appeal to the Supreme Court, which ordered the record transferred here.

The trial judge made a thorough analysis of this case in his written reasons for judgment which, in our opinion, fully encompassed the subject posed for our consideration and the result which we have agreed should be reached.

“Plaintiffs seek to enjoin defendant from continuing an alleged noise nuisance emanating at night from defendant’s metal manufacturing works across the street, contending that such noises disturb their rest and sleep.
“The issue is whether the noise from defendant’s plant is sufficient to annoy people of normal sensibilities and reactions and, if so, whether the Court should enjoin their continuance or hold that plaintiffs and other neighbors must supinely submit thereto.
“Defendant’s plant is located in the 4400 block on Bienville Street, in the square bounded by North Alexander, North Murat and Conti streets, and the section from Bienville street north or away from Canal street is highly industrialized. A railroad passes in front of defendant’s establishment on Conti street. Defendant’s plant is worth well over a million dollars; plaintiffs’ residence about $20,000.00.
“It is not disputed that defendant under the City Zoning Law has a right to operate its plant because that side of Bienville street is zoned as industrial. At the same time, plaintiffs have the right to maintain their residence because it is located on the opposite side of Bienville street, [or in Alexander Street] zoned as ‘C’ residential. Plaintiffs’ residence and defendant’s manufacturing establishment have been in their respective locations for years.
“Defendant frankly admits that it operates at night time five nights a week, Monday through Friday, until midnight; and that its operation at night is not because of any public emergency, pressure or necessity, but only because it has private orders and is compelled to operate at night to get them out.
“The sole complaint of plaintiffs is that the noise which emanates from the plant disturbs them during the early and late hours of the night. No charge is made of the emission of obnoxious or offensive odor, dust, smoke, gas or vibration.
“It must first be conceded that both plaintiffs and defendant have a right to be where they are; the plaintiffs to reside on Bienville street [in Alexander Street], and the defendant to maintain its industrial establishment there [in Bienville Street]. Therefore, it necessarily follows that the plaintiffs cannot expect the defendant to turn day into night and, conversely, the defendant cannot expect to turn night into day.
"Even under the Zoning Law that permits the operation of this industrial plant, the defendant cannot use the same in any manner ‘which may be obnoxious or offensive by reason of emission o-f odor, dust, smoke, gas, or noise or vibration’.
"Necessarily, there is a conflict of testimony. Witnesses on behalf of the plaintiffs, residents in the neighborhood, complain that their sleep is disturbed by the noises. Defendant’s witnesses testified that the noises are not sufficient to annoy either them or persons of normal sensibilities. It is true the test is not what effect the noise would have on a neurotic, but the effect it has on a normal person.
“Mr. Todt, who lives across the street on Bienville, and who has been there for years, testified that he made no complaint before this because he didn’t want to interfere with an industrial enterprise creating an occasional annoyance, but since the noise now continues five nights a week until midnight, he cannot bear it.
“Plaintiffs produced and offered in evidence a record of a sound recording of the noises and sounds complained of which recording was made at night about 11:00 P.M. on October 26th, 1954, in a residence at 226 North Alexander street, about 200 feet away from the defendant’s plant. [226 No. Alexander Street is an apartment located in the building designated by the municipal number 228 No. Alexander Street.] Defendant objected to the admission of this recording on the grounds that it could easily have been amplified.
“After the technician who set up the apparatus for the recording and those who were present when the sound recording was made, and who heard the original noises, testified that the recording properly reproduced the original noises, I admitted the sound recording in evidence and had it played in the presence of all parties. The normal tones of the human voices speaking in explanation and narration of the sound recording were on a proper level with the noises and left no doubt that the sound recording should be admitted in evidence.
“The playback of the sound recording clearly proves that the noises complained of are weird, buzzing, humming and screeching sounds made by an instrument sawing metal, as well as loud, metallic sounds of metal beating metal, and similar noises.
“A fact that stands out is the testimony of Mr. Walk, superintendent of the plant, who frankly admitted that a metal saw cutting- machine operates ten seconds every three to fifteen minutes, or forty seconds an hour, or three hundred twenty seconds a night, eight hours’ operation; that the sound emanating from the operation of the saw can be heard about two hundred feet away. It is not hard to appreciate that a shrieking, buzzing metallic sound made intermittently up to midnight, reverberating in a residential neighborhood, can annoy and awaken the residents in their relaxation and sleep and become a private nuisance.
“While plaintiffs have to put up with the normal use of defendant’s plant in the day time, it does, not follow that the defendant, for its own private purpose and gain, without any public interest involved, can continue the operation far into the night and deprive the plaintiffs of their right to the normal use of their property during the night.
“Excessive, unreasonable and disturbing noises, particularly during night hours, constitute a nuisance, to the abatement of which those disturbed are entitled to relief, even though noise is not necessarily a nuisance, and are not to be held so unless a consideration of all surrounding facts, such as character of locality and nature of noises and effect thereof on persons of ordinary sensibilities, have been determined. Beauvais v. Hall Transport, Inc. [La.App.], 49 So.2d 44; Ryan, et al. v. Louisiana Society for the Prevention of Cruelty to Animals [La.App.], 62 So.2d 296; Hobson, et ux. v. Walker [La.App.], 41 So.2d 789.
“There can be no denying that the defendant has a right to operate its plant at night if it wishes, but it cannot do so in a manner that unreasonably deprives residents of their right to enjoy their property. An occasional hammer blow, or a moving truck, or the clanging of metal occasionally, might not be sufficient to warrant complaint, but intermittent weird, buzzing and screeching noises up until midnight that reverberate in a residential neighborhood is certainly a noise that should be abated.
“The testimony discloses that large rolling doors are located at the entrance of the plant on Bienville street, and in the summertime when open permit the noise to reverberate in the neighborhood in a magnified manner; whereas, if the doors are closed, the noise is considerably subdued, possibly abated. Defendant contends that it can not close the doors for ventilation purposes, and to ventilate the plant in order to keep the doors closed would be economically prohibitive. If defendant cannot operate its business in keeping with the rights of others because it will not be economically sound to do so, even to handle extra business, that is a matter that concerns defendant, and the plaintiffs can not be compelled to subject themselves to a continuing nuisance because of the expense of abating or minimizing it.
“Considerable argument and stress is predicated by defendant on the fact that the section is industrial, and that the railroad track on Conti street requires the shifting and coupling of cars; that Bienville street is a heavy traffic street; that traffic on Canal street two blocks away can be heard, including the clanging of street cars; and counsel for the defendant stated that from his home in one of the exclusive residential sections of the city he can hear traffic crossing the Huey Long bridge crossing the Mississippi River five miles away. It is well settled that noises attending matters of public convenience and necessity, common to all inhabitants of a community, which cannot be readily abated without injuring the public generally, cannot be likened to noises created by private business for private purposes not common to all and that can be abated.
“Since both plaintiffs and defendants have a right to use their respective properties in accordance with law, the plaintiffs to use theirs for residential purposes and the defendant for industrial purposes, each must use his property so as not to prevent the reasonable use by the other. To permit the defendant to continue emitting screeching, grinding noises intermittently at nighttime indefinitely five nights a week would deprive the plaintiffs of their right to use their property. R.C.C. LSA-C.C. arts. 668-669. Of course, the use of property in municipalities is governed by police regulation, but even a police regulation cannot permit one private owner to maintain a nuisance to the detriment of another. As a matter of fact, the Zoning Law itself prohibits in industrial localities obnoxious or offensive odors, dust, smoke, gas, noise or vibration.”

In the course of oral argument before this court counsel for the defendant again insisted that the trial court erred in permitting the plaintiff to introduce as evidence a recording of the various noises emanating from defendant’s plant as heard in the living room of an apartment in 228 N. Alexander Street on October 26, 1954, at about 11 p. m. This building is approximately 150 to 200 feet removed from the site of the plant. Counsel’s principal objection appears to be based on the hypothesis that the recording of the noises could have been amplified by the plaintiffs. An objection was made to the introduction of identical evidence in a case decided by the Supreme Court of New York. The organ of the Court expressed the opinion that the reproduction of sounds of an original event if material and when a proper foundation has been laid is admissible and that it amply substantiated the testimony of the witnesses who described the noises emanating from the defendant’s plant during the nighttime. We feel relatively certain that the trial court did not err in permitting the introduction of this evidence.

However, assuming arguendo that the trial court did err in admitting this evidence, a view which the defendant believes to be most favorable to his case, then we are of the opinion that the other evidence adduced herein preponderates in favor of the plaintiffs to the effect that noise which would not constitute a nuisance in the daytime will be declared such when created during hours usually devoted to relaxation and sleep by inhabitants of a neighborhood. The result which has been reached will approximately balance the rights of the respective parties.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . The defendant’s plant is located at 4401 Bienville Street approximately 150 to 200 feet removed from the plaintiffs’ residence.

      . 1956, 229 La. 440, 86 So.2d 95.

      . As in the instant case the proper foundation for the introduction of such evidence had been previously laid.

      . Frank v. Cossitt Cement Products, Inc., 1950, 197 Misc. 670, 97 N.Y.S.2d 337; see Wigmore, Evidence, Sec. 795a (3rd ed. 1940).


author: ROBERTS, Justice.

text:
    Patrick Lee MANNING, a minor, by his next friend, Paul R. Manning and Paul R. Manning, Appellants, v. Ernest SERRANO, Appellee.
    Supreme Court of Florida.
    Oct. 9, 1957.
    Rehearing Denied Nov. 21, 1957.
    L. J. Cushman, Miami, for appellants.
    Blackwell, Walker & Gray, Miami, for appellee.
   ROBERTS, Justice.

The sole issue presented here is whether the four-year statute of limitations prescribed by Subsection (4) of Sec. 95.11, Fla.Stat.1955, F.S.A., or the three-year period provided by Subsection (5) (e) of the same section, is applicable to a suit against a physician for personal injuries allegedly sustained by plaintiff because of the defendant physician’s negligence or unskillful treatment. The lower court, relying upon Palmer v. Jackson, 1911, 62 Fla. 249, 57 So. 240, held that the three-year limitations period was applicable and dismissed plaintiff’s suit. This appeal by plaintiff followed.

Subsection (5) (e) of Sec. 95.11 specifically prescribes a limitation period of three years for “an action upon a contract, obligation or liability not founded upon an instrument of writing * * Subsection (4) of Sec. 95.11 provides for a limitation period of four years for “any action for relief not specifically provided for in this chapter.” No special limitations period is prescribed by our statute for actions for “personal injury”, “injuries to the person”, and the like, nor for malpractice suits against physicians, surgeons and dentists, as is the case in some states. It is settled, however, that tort actions to recover for personal injuries sustained by reason of the negligence of the defendant or his employee are covered by Sec. 95.11(4), supra, and thus barred after four years. Warner v. Ware, 1938, 136 Fla. 466, 182 So. 605.

In Palmer v. Jackson, supra, 57 So. 240, this court held, in a not entirely unambiguous opinion, that the lower court did not err in sustaining defendant’s plea of the three-year statute of limitations prescribed by what is now Sec. 95.11(5) (e), supra, against a complaint charging that the defendant did “undertake the treatment of” the plaintiff and thereafter, in violation of his duty as a physician, negligently and unskillfully diagnosed and treated plaintiff’s ailment. Stating that these allegations did not “exclude the existence of an express or implied verbal contract relation between the parties which is usual in such cases,” the court held that “the action was upon [an] ‘obligation or liability not founded upon an instrument of writing,’ and was barred in three years.” The Palmer decision was interpreted in Slaughter v. Tyler, 1936, 126 Fla. 515, 171 So. 320, as holding that an action against a physician for malpractice is barred in three years under Sec. 95.11(5) (e) — although it appeared that the plaintiff’s suit in the Slaughter case would also have been barred under the four-year statute, the real issue being whether the minority of the plaintiff tolled the running of the statute of limitations. Cf. the interpretation by the annotator in 74 A.L.R. at pp. 1260 and 1261, where the Palmer decision is cited in support of the theory that the court will be governed by the form in which the action is stated by the plaintiff, whether ex contractu or ex delicto, in deciding the question of the applicable statute of limitations.

If Palmer v. Jackson is interpreted as holding that a malpractice suit against a physician is governed by the limitations statute applicable to suits in assumpsit upon an express or implied contract, even though the plaintiff may have stated a case sounding in tort, then only one decision in support thereof may be found, to wit, Menefee v. Alexander, 1899, 107 Ky. 279, 53 S.W. 653; and this is no longer the rule in Kentucky by virtue of an amendment to its statute of limitations, see Guess v. Linton, 1931, 236 Ky. 87, 32 S.W.2d 718.

There can be no doubt that where a transaction complained of has its origin in a contract and, at the same time, a duty is superimposed by or arises out of the circumstances of the transaction, the violation of which constitutes a tort, then the injured party has an election to sue in tort or for the breach of contract. Parrish v. Clark, 1933, 107 Fla. 598, 145 So. 848; Milteer v. Seaboard Air Line Ry. Co., 1913, 66 Fla. 17, 62 So. 831; Doyle v. City of Coral Gables, 1947, 159 Fla. 802, 33 So.2d 41; Holbrook v. City of Sarasota, Fla. 1952, 58 So.2d 862; City of Miami v. Brooks, Fla.1954, 70 So.2d 306. The general rule for the application of the statute of limitations in this situation is stated in the Restatement of Torts, Sec. 899, comment b, as follows:

“When this is so, the injured person, although barred by a statute from enforcing his contractual or quasi-contractual right may not be barred from maintaining an action of tort, or vice versa, since the statutes commonly provide for a different period of limitation for tort actions and for those based upon a breach of contract or the right of restitution.”

See also 34 Am.Jur., Limitation of Actions, Sec. 104.

In those states where the statute of limitations prescribes a special limitations period for actions for malpractice of a physician or surgeon, a majority of the courts hold that a malpractice suit must be brought within the period expressly prescribed for such actions, regardless of the form of action by which the liability is sought to be enforced. See 34 Am.Jur., Limitation of Actions, Sec. 103; annotations in 74 A.L.R. 12S6 et seq. and 151 A.L.R. 1027 et seq. But where, as in this state, no such special limitations period is prescribed, there is no valid reason for applying to malpractice suits a rule different than the one applicable to other causes of action in which the plaintiff has an election to sue in contract or in tort.

We, therefore, recede from Palmer v. Jackson, supra, 57 So. 240, and Slaughter v. Tyler, supra, 171 So. 320, insofar as they hold that a malpractice suit must be brought within the statutory period provided for an action “upon [an] ‘obligation or liability not founded upon an instrument of writing,’” and hold that the statutory period applicable to a malpractice suit depends upon the claim for relief stated by plaintiff — whether he sues for and seeks the damages applicable to a breach of contract or a tort.

In the instant case both the original and the amended complaints filed on behalf of the minor plaintiff clearly stated a cause of action sounding in tort, although in the original complaint the employment of plaintiff was disclosed as a matter of inducement, cf. Banfield v. Addington, 1932, 104 Fla. 661, 140 So. 893, 896. Since the complaint was filed within the four-year period prescribed by Sec. 95.11(4), which is applicable to tort actions of this kind, Warner v. Ware, supra, 182 So. 605, it was error to dismiss the complaint filed on behalf of the minor plaintiff on the ground that it was barred by Sec. 95.11(5) (e), supra. The four-year period having expired prior to the time that the plaintiff-father sought to join in the suit, there was no error in dismissing his suit.

Affirmed in part and reversed in part, and the cause remanded for further proceedings.

TERRELL, C. J., and THOMAS, HOB-SON, DREW, THORNAL and O’CON-NELL, JJ., concur.


author: PER CURIAM.

text:
    Chester A. FORT, Jr., Appellant, v. Anne Burton FORT, Appellee.
    Supreme Court of Florida.
    Oct. 16, 1957.
    Rehearing Denied Nov. 21, 1957.
    Smith & Axtell and D. Chanslor Howell, Jacksonville, for appellant.
    Greene, Ayres & Greene, Ocala, for appellee.
   PER CURIAM.

Appellant seeks reversal of an order of the Chancellor with reference to support money to be paid to the appellee in a divorce proceeding.

The order under attack is affirmed but without prejudice to the appellant to reapply to the Chancellor for further modification of the alimony award as the exigencies of his situation might require, particularly with reference to the effect of his physical disability resulting from injuries suffered in an automobile collision, as well as any other factors, adversely affecting appellant’s earning capacity, or showing appellee’s lack of need for support.

TERRELL, C. J., and HOBSON, ROBERTS, DREW, THORNAL and O’CONNELL, JJ., concur.


author: PER CURIAM. HOBSON, Justice,

text:
    Karen Mae GOLDWYN, an Infant, by and through David Goldwyn, her father and next friend, and David Goldwyn, individually, Appellants, v. Mildred Abney BROOKS, Grace A. LaToof, and Mrs. B. R. Stevens, Appellees.
    Supreme Court of Florida.
    Sept. 20, 1957.
    Rehearing Denied Nov. 21, 1957.
    J. Ben Watkins of Truett & Watkins, Tallahassee, and Kelner & Lewis, Miami Beach, for appellants.
    Brown, Dean, Adams & Fischer, Miami, for appellees.
   PER CURIAM.

Affirmed.

TERRELL, C. J., THORNAL and O’CONNELL, JJ., and KNOTT, Circuit Judge, concur.

HOBSON, Justice,

(dissenting).

I think the case should have been submitted to the jury to determine whether the speed of defendants automobile driving was excessive under existing circumstances and conditions and in the light of somewhat conflicting evidence.


author: DREW, Justice.

text:
    Samuel L. GRIFFITH, d/b/a Enterprise Marine Co., Petitioner, v. Michael VECCHIARELLI, and the Florida Industrial Commission, Respondents.
    Supreme Court of Florida.
    Oct. 23, 1957.
    Rehearing Denied Nov. 18, 1957.

      Charles & Watson, Miami, for petitioner.
    Richard M. Welsh of Hill, Welsh, Cornell & Ross, Miami, for Michael Vecchiarelli and Burnis T. Coleman.
    Rodney Durrance, Tallahassee, for Florida Industrial Commission, respondents.
   DREW, Justice.

Samuel L. Griffith filed a petition for a writ of certiorari in this Court pursuant to Sec. 440.27, Florida Statutes 1955,' F.S.A., seeking review of an order of the full commission of the Florida Industrial Commission. In denying review, the full commission considered only the question of its jurisdiction to consider Griffith’s application for review in view of his failure to file a bond as required by Sec. 440.25(4) (a), Florida Statutes 1955, F.S.A.:

“ * * * an employer who has not secured the payment of compensation under this chapter in compliance with § 440.38 shall, as a condition of filing such application for a review by the full commission, file with his application for review a good and sufficient bond, as provided in § 59.13 of chapter 59, conditioned to pay the amount of the award, interests and costs payable under the terms of the order of the full commission, if the application shall be dismissed or the order thereon shall affirm or make an award of benefits in any amount, and upon failure of such employer to file such bond with his application for review the commission shall dismiss the application for review.”

Petitioner poses the questions, “whether the full commission had authority to dismiss the application for review for failure to post bond, as provided for in Florida Statute 440.25(4) (a), F.S.A., and whether said statute is unconstitutional or not.”

The 1955 amendment to Sec. 440.25(4) (Ch. 29778, Sec. 6, Laws of 1955), applicable to this case, makes posting of the bond a condition precedent to review by the full commission. In Austin v. Town of Oviedo, Fla.1957, 92 So.2d 648, we held that a statute requiring an appeal bond to be posted as a condition precedent to a review of a may- or’s court conviction by a circuit court was not violative of any constitutional provision of this State. The rationale of the Austin case is clearly dispositive of the principal question presented here although such question involves an administrative system of hearings, instead of a strictly judicial proceeding.

We have not considered whether the deputy commissioner properly ruled that petitioner employed three or more persons and that the claimant for compensation was not an independent contractor, within the provisions of Sec. 440.02, Florida Statutes 1953, F.S.A., because, even if the petition was directed to the deputy commissioner’s order and could in such case be considered by this Court (a point we do not decide), the petition was not filed in this Court within 60 days from the date the order of the deputy commissioner was filed as required by Supreme Court Rule 16(1), 31 F.S.A.

Certiorari is denied.

TERRELL, C. J., HOBSON and O’CONNELL, JJ., and CARROLL and WIGGINTON, District Judges, concur.


author: O’CONNELL, Justice. DREW, Justice

text:
    Maxwell J. BROOKS, Petitioner, v. Larry OWENS, a minor by his next friend and natural guardian, Bernice Kleiser, Respondent.
    Supreme Court of Florida.
    Oct. 25, 1957.

      James A. Dixon and Dixon, Dejarnette, Bradford & Williams, Miami, for petitioner.
    John M. Kelley, Jr., and Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for respondent.
   O’CONNELL, Justice.

Maxwell J. Brooks, petitioner, was defendant in an action in the Circuit Court brought by the plaintiff, Larry Owens, a minor, by his next friend, Bernice Kleiser, arising out of an intersection collision between the defendant’s automobile and the plaintiff-respondent’s motorcycle. The parties will be referred to as plaintiff and defendant.

Defendant filed his answer to the complaint. He denied negligence and alleged contributory negligence. The plaintiff-respondent then took defendant’s deposition, in which defendant was asked (1) whether the automobile involved was the only one owned by the defendant; (2) whether defendant had automobile liability insurance; and (3) what were the limits of the liability insurance.

Defendant refused to answer the above three questions and plaintiff made a motion he be required to answer. Defendant responded, answering the first two questions affirmatively, but refusing to answer the third. Grounds given by the defendant for his refusal were that disclosure of the policy limits would deprive him of liberty and property without due process of law and deny to him other constitutional rights guaranteed by the federal and state constitutions, and would subject him to oppression and embarrassment. He alleged the questions were propounded to him in bad faith, and their sole purpose was to enable the plaintiff to make a demand for settlement within the policy limits and thereby put pressure upon him to require settlement by his insurance carrier within such limits. He also contended the plaintiff did not show good cause for the relief prayed for in his motion, as required by, 30 F.S.A. Fla. Rules Civ. Proc. 1.28. Defendant concluded by saying the plaintiff had no rights in the policy of insurance unless and until he should recover judgment against the defendant and that the relief prayed for was not designed to lead-to any admissible evidence, being wholly irrelevant and immaterial unless and until the plaintiff should have a judgment against defendant entered for him and such judgment remained unsatisfied.

A hearing was held on plaintiff’s motion and defendant’s response and argument of counsel was heard. The judge entered his. order requiring the defendant to answer and, defendant having announced his intention not to comply, the judge then ordered that defendant’s answer to the complaint be stricken and he be adjudged to be. in default.

Defendant entered his notice of appeal' and also filed the subject petition for cer-tiorari addressed to the same order dismissing his answer and declaring him to to be in default.

If the defendant is entitled to review of the order complained of, it must be by certiorari and not by appeal. The. order of default was not a final order, subject to appeal, as it does not meet the test set out in Slatcoff v. Dezen, Fla., 1954, 72 So.2d 800, in that it does not indicate an end of judicial labor. This court long ago ruled that an order of default is not a final judgment. Coons v. Harllee, 1880, 17 Fla. 484; Blount v. Gallaher, 1886, 22 Fla. 92. See also 4 C.J.S. Appeal and Error § 155.

This court will review an interlocutory order in law only under exceptional circumstances. Where it clearly appears that there is no full, adequate and complete remedy by appeal after final judgment available to the petitioner, this court will consider granting the writ, as where the lower court acts without and in excess of its jurisdiction, or the order does not conform to essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate. Kauffman v. King, Fla., 1956, 89 So.2d 24; Huie v. State, Fla., 1956, 92 So.2d 264. See also 5 Fla.Jur. Certiorari Sec. 12.

We must determine, therefore, whether the facts of the instant case warrant the special dispensation of this court as prayed for in the petition. If the lower court erred in its ruling that the policy limits were a proper matter of discovery, but this petition were denied, defendant would have two alternatives. For one, he could do nothing further, whereupon a judgment would be entered against him, for his liability would be admitted by the default. A jury would assess the damages. Defendant would then be gambling on the amount of damages the jury would assess and on the possibility of having this court, on appeal, fail to reverse the trial court. This court, on the appeal, would not be reviewing the sufficiency of the evidence to convict the defendant of the negligence alleged, but would be reviewing the action of the trial court in striking defendant’s answer and adjudging him to be in default. If this court reversed the trial court, defendant would then be gambling on whether a jury in a new trial would find him liable on the merits of the case. If this Court were to affirm the trial court’s action, defendant would be adjudged liable as a matter of record, with no trial ever having been had on the merits. Under these circumstances, this gamble, whether or not this court would reverse the trial court, is one we do not find the defendant should be compelled to take. If legality of the trial court’s action were determined before final judgment were ever entered, the defendant would not be subjected to such possible, subsequent injury in further proceedings to be had in the trial court.

As for the second alternative, defendant could comply by disclosing the policy limits and thus have his answer re-entered. If this were done, defendant contends, his constitutional rights against deprivation of liberty and property without due process of law and against unreasonable searches and seizures would be violated. If disclosure were properly ordered, the deprivation would have been with due process, and the search and seizure would have been reasonable, but if it were improperly ordered, we are inclined to agree with the defendant as to the constitutional violations.

Defendant also contends that if the discovery be allowed, the plaintiff would be in a position to “entrap” the defendant’s insurance carrier into the position whereby it could have asserted against it a claim for damages returned by the jury in excess of the policy limits due to its bad faith refusal to compromise within the policy limits. Defendant maintains that the sole purpose of plaintiff’s request for the policy limits is to place him in a position to bring about such a result.

While we cannot agree that plaintiff’s sole purpose is as contended above, or that the use of the word “entrap” is proper in such case, we do not believe that the rules of civil procedure concerning discovery should be interpreted merely to aid the plaintiff in achieving such a result.

It is our conclusion, therefore, that the defendant presents to us a case qualifying for the review by this court at this time the interlocutory order in law of the lower court, since we are convinced that should defendant be compelled to wait for remedy by appeal irreparable harm would have already resulted.

This court, in Kilgore v. Bird, 1942, 149 Fla. 570, 6 So.2d 541, 544, held that the statutory proceedings for questions to be propounded by the plaintiff to be had in the progress of a lawsuit, are distinct from ordinary judicial proceedings; and if such statutory authority is illegally used or so abused as to cause an injury which cannot be adequately remedied by appeal after final judgment, and the statute affords no appellate review of the distinct statutory proceeding, certiorari may be applied before final judgment within the discretion of the appellate court, under the organic power of the Supreme Court given by the Constitution of Florida.

We have determined, on the general principles expressed above and on the specific authority of Kilgore v. Bird, supra, that if there was a violation of essential requirements of controlling laws, the reasonable result would be an injury to the defendant not subject to remedy by appeal. We must now determine whether there has been a violation of the law.

The controlling laws in question are the rules of civil procedure relating to discovery. The most pertinent rule is Fla. Rules Civ.P. 1.21(b) herein set out:

“(b) Scope of Examination. Unless otherwise ordered by the court as provided herein, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial of the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. % %

Also of possible relevancy is Fla.R.Civ.P. 1.28, which reads as follows:

“Rule 1.28 Discovery And Production 'Of Documents And Things For Inspection, Copying Or Photographing.
“Upon motion of any party showing-good cause therefor and upon notice to all other parties, and subject to the-provisions of Rule 1.24(b), the court in which an action is pending, may (1) order any party to produce andi permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters,, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 1.21(b) and which are in his possession, custody, or control; or (2) order any party to-permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon within the scope of the examinations permitted by Rule 1.21(b). The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.”

These rules are similar to corresponding federal rules of civil procedure. Although the specific question has never confronted this court, it has come before some federal courts and before courts in other jurisdictions with similar rules. There is a conflict in those opinions.

Plaintiff cites several cases in which the courts have ruled policy limits are proper matters of discovery: Maddox v. Grauman, Ky., 1954, 265 S.W.2d 939, 41 A.L.R.2d 964; Superior Ins. Co. v. Superior Court, 1951, 37 Cal.2d 749, 235 P.2d 833; Orgel v. McCurdy, D.C.S.D.N.Y.1948, 8 F.R.D. 585; Brackett v. Woodall Food Products, Inc., D.C.E.D.Tenn.1951, 12 F.R.D. 4.

In Maddox v. Grauman, supra, the rule in question was substantially the same as the federal rule, Rule 26(b), 28 U.S.C.A. The court held that the requirement of the rule that the matter be relevant to the subject matter should be more loosely construed upon pre-trial examination than at trial, and required only that the subject matter be relevant to the subject matter involved in the action. The court reasoned that if the insurance question (matter of limits) is relevant to the subject matter after the plaintiff prevails, it is also relevant while the action is pending. The court relied heavily upon its reasoning that automobile liability policies inure to the benefit of every person who may be negligently injured by the insured. Since the rule provides that matter subject to discovery should be relevant to subject matter in a pending case, defendant in the suit before us argues that the Kentucky court stretched to the breaking point the meaning of the word “relevant”.

The federal court in Orgel v. McCurdy, supra, ruled that the defendant must testify as to all issues relating to liability insurance carried by him on the motor vehicle involved in the accident. The court said the old principle of keeping the opponent in the dark was now out of date and that any matter generally relevant to the issues in the case were subject to discovery. The defendant had objected to the discovery on the ground that the purpose of the plaintiff in seeking information about liability insurance was to spell out operation and control by the defendant of the subject vehicle from the fact of liability coverage.

In the California case of Superior Ins. Co. v. Superior Court, supra, the defendant refused to give the amount of his coverage. The plaintiff applied to the court seeking to have such information furnished her by the defendant. She alleged she expected to make defendant and the insurer defendants in a suit to enforce payment of a judgment she expected to get in an action pending against the defendant. This procedure was authorized by the Code of Civil Procedure in California. The court found that the provisions of the policy were germane to the plaintiff’s cause and material to her anticipated action, when and if brought. In the case at bar, the defendant contends that the California court so ruled because its code of civil procedure provides for no discovery in aid of execution, whereas in our jurisdiction, there is such a specific rule, Fla.R.Civ.P. 1.40. However, the California court also reasoned that automobile liability insurance contracts inure to the benefit of any and every person who might be negligently injured by the assured as completely as if such person were specifically named in the policy. California had a statute, however (Insurance Code of Calif, Sec. 11580), requiring that a policy of insurance must carry a provision granting to one who recovers a judgment in a personal injury action a right of action against the insurer of the judgment debtor. One judge dissented, reasoning that obviously the sole purpose of the proceeding was to obtain information to aid in negotiating for a settlement, which purpose was not within the purview of the statutes.

Because the primary reasoning for the court’s ruling in the above case was based on the fact the plaintiff expected to sue the insurer to enforce payment of the judgment she expected to receive against the defendant and that, therefore, the policy information was germane and subject to discovery, we are of the view the case is not of decisive significance in the case before us.

The federal court in Brackett v. Woodall Food Products, supra, also was of the opinion automobile insurance coverage was, under the broad viewpoint, relevant to the subject matter of the litigation, citing Orgel v. McCurdy, supra. The court said that authorities were numerous to the effect that it was not necessary that the documents sought be competent evidence on trial and that plaintiff should be given opportunity, in the preparation of its case, to inspect the liability policy. The court reasoned thusly upon noting that the trend of modern legislation concerning motor vehicles, from its tenor and purpose, showed obviously that such policies are definitely relevant to the subject matter of pending action growing out of accidents covered by such policies.

Defendant cites in support of his view the cases of Jeppesen v. Swanson, 1955, 243 Minn. 547, 68 N.W.2d 649 and McNelley v. Perry, D.C.E.D.Tenn.1955, 18 F.R.D. 360. We also find the case of McClure v. Boeger, D.C.E.D.Pa.1952, 105 F.Supp. 612, relevant.

In Jeppesen v. Swanson, supra, plaintiff sought an order permitting him to inspect defendant’s liability policy. Plaintiff furnished an affidavit stating he needed to know the policy limits so that he could properly evaluate a figure for settlement or trial. The applicable rule of civil procedure was identical to the federal rule and to Fla.R. Civ.P. 1.28. The motion must be for good cause shown. The court commented that the scope of the discovery permitted was the same as that provided by the rule for taking depositions [Fla.R.Civ.P. 1.21(b) and Fed. R.Civ.P. 26(b)] and that the rules of civil procedure would be given liberal construction. However, the court ruled, there must be some boundary limitation beyond which the court should not go. Research by the court revealed the trial courts, state and federal, were not in accord and that no case on the question had yet gone to a federal court of appeals. The court said that although in that state one could garnish the insurer after judgment was entered against the defendant, the court did not agree with the California court in a case involving a somewhat similar statute allowing the judgment creditor to sue the insurer, Superior Ins. Co. v. Superior Court, supra, in interpreting such to mean a plaintiff had a right, contractual or otherwise, against the insurer until after judgment is procured. Therefore, the court concluded the matter was not subject to discovery. It said that even though discovery was not limited to facts admissible as evidence, the ultimate goal is to ascertain facts which may be used for proof or defense of an action, and that the purpose of discovery rules was to take the surprise out of trials so that all relevant facts pertaining to the action may be ascertained in advance of trial. The rules were not intended, said the court, to supply information for the personal use of a litigant that has no connection with the determination of the issues involved in the action on the merits.

In an earlier case, McClure v. Boeger, supra, plaintiff moved for production of defendant’s policy of insurance, but the court felt the plaintiff did not show sufficient good cause, as required. The court held it was not sufficient upon the sole statement by the plaintiff that production of the policy might afford him “rights” not otherwise available. As in Jeppesen v. Swanson, supra, the court felt there was not much distinction between compelling a defendant to disclose his policy limits and in compelling him to disclose his financial worth. The judge stated that whatever advantages the plaintiff might gain were not advantages which had anything to do with his presentation of his case at trial and did not lead to disclosure of the kind of information which is the objective of discovery procedure.

McNelley v. Perry, supra, was also decided by a federal court in Tennessee, as was Brackett v. Woodall Food Products, supra, but was decided by a different division of the court. It was also decided subsequent to Jeppesen v. Swanson, supra. Most of the cases referred to above were cited by the court, on both sides of the question. The court found that it was not shown that the information sought (policy limits and the name of the insurer, if insurance existed) was relevant to either of the two general purposes in seeking information from an adversary (1) to use in the trial, ■or (2) to use to lead to information for use in the trial. It felt that the facts of Brackett v. Woodall Food Products, supra, were such, as to constitute the information relevant, since it appeared that the defendant was insolvent, so that proration ■of insurance might have been an issue •among various claimants. The court con•cluded that the information sought was not •a proper matter of discovery.

We adopt the view expressed •above that the limits of liability insurance ■on a policy covering an automobile of a ■defendant are not proper matters subject to ■discovery under Fla.R.Civ.P. 1.21(b). It is our view that the rule is applicable only to those matters admissible in evidence or ■calculated reasonably to lead to the discovery of admissible evidence. The matter must be relevant to either one of those ■expressed purposes concerning a pending action. It must pertain either to the proof or the defense of an action. The basic ■concept of our judicial system is to insure to citizens of this state and nation an entry into the courts for the purpose of (1) proving liability for an injury and (2) proving ■damages occasioned thereby. Limits of insurance carried by a defendant in a cause ■of action are not relevant to either of those ¡basic purposes. Rules of discovery adopted hy our courts are designed to secure the just, speedy and inexpensive determination ■of every action. As said by the court in the Jeppesen case, supra, 68 N.W.2d at page 658, that does not mean that information should be discoverable which is desired ■only for the purpose of placing one party in a more strategic position than he otherwise would be by acquiring information that has nothing to do with the merits of the action; there must be some connection between the information sought and the action itself before it becomes discoverable. We do not believe that such rules, procedural in design, should increase or otherwise alter basic substantíve rights of either party to litigation.

Plaintiff advances many arguments in favor of his interpretation. We have seen, how some state and federal courts have agreed with his reasoning. Plaintiff summarizes those opinions on this subject by stating that in every case where the courts allowed the discovery, the subject rule, like ours, did not require that good cause be shown, but that in every case where the discovery was denied, the applicable rule, unlike ours, required that good cause be shown. Consequently, he argues we should admit the discovery, as our rule 1.21(b) does not require good cause to be shown.

Following this argument if a party were desirous of learning his opponent’s limits of insurance, he could ask for such information upon deposition taken in accordance with Rule 1.21(b), wherein no good cause need be shown. Under plaintiff’s reasoning above, he should be granted his information. Yet if the party sought instead to have the policy produced for inspection, copying or photographing, under Rule 1.28, for the same avowed purpose of learning the policy limits, the rule requires he show good cause. Plaintiff’s argument above permits our refusing the discovery under Rule 1.28 on such circumstances as involved in the present case and thus its fallacy becomes apparent.

Plaintiff also argues that the Jeppesen case, supra, was expressly limited to the situation where the sole purpose of the plaintiff’s inquiry was to evaluate the case for the purpose of determining whether it would be advisable to settle. He draws attention to the fact he has stated that unlike the plaintiff in the Jeppesen case, he does not wish to obtain the information for the sole purpose of determining whether or not he will settle. Defendant informs, us that in his reply brief in the lower court, the plaintiff stated that he intended to make it irrevocably plain that he would settle the case within the policy limits. At any rate, plaintiff has not convinced us his purpose is superior or more compelling than the plaintiff’s in the Jeppesen case. If defendant’s contention is true that the plaintiff is attempting to “entrap” the insurer into liability for damages set by a jury in excess of policy limits, the purpose is less worthy than the plaintiff’s in the Jeppesen case. We cannot, however, under the circumstances of this case, conceive of a purpose possessed by plaintiff to change the intent of the rules of civil procedure, as we ascertain such intent, so that the information sought would be considered subject to discovery. We of course recognize that under some conceivable, different circumstances information concerning a policy of insurance may be relevant to the issues of a pending cause.

Some of the decisions we have reviewed have expressed the view that an automobile liability insurance policy inures to the benefit of any and all suffering injury occasioned by such insured’s automobile. While such a doctrine may develop in the foreseeable future, we do not believe it has yet been established. We would rather agree with the federal judge in Brackett v. Woodall Food Products, supra, 12 F.R.D. at page 5, where he said:

“ * * * While, of course, such an insurance policy ordinarily inures to the benefit of persons injured by the wrongful acts of the insured, and in many cases and jurisdictions such insurance is required by law for that purpose, nevertheless such insurance is ordinarily considered to be for protection of the insured, and is in the nature of a reimbursement for a loss.”

Plaintiff also contends that since the rules are designed for speedy “determination” of cases and “settlement” is in itself a “determination”, the rules should be construed to allow discovery of policy limits to aid in determination by settlement. Again, we would not agree but adopt the following from Jeppesen v. Swanson, supra, 68 N.W.2d at page 657:

“It is next urged that the word ‘determination’ in Rule 1 contemplates a settlement as well as a trial. A reading of the enabling act, as well as the rules involved, it seems to us, can lead to only one conclusion — that the word ‘determination’ refers to the disposition of the action in some manner over which the court has control. That the court does not control a settlement is of course obvious * * * ”

In reply to other arguments of the plaintiff, and of some other courts, we also adopt the following from the Jeppesen case, 68 N.W.2d at page 658:

“Under the guise of liberal construction, we should not emasculate the rules by permitting something which never was intended or is not within the declared objects for which they were adopted. Neither should expedience or the desire to dispose of lawsuits without trial, however desirable that may be from the standpoint of relieving congested calendars, be permitted to cause us to lose sight of the limitations of the discovery rules or the boundaries beyond which we should not go * * * ”

Having reached the above conclusions that the essential requirements of the law have been violated whereupon the defendant would suffer thereby in subsequent proceedings, we grant the defendant’s petition for writ of certiorari to review the interlocutory order entered in the cause at law in the court below. ■

The order of the court adjudging the defendant to be in default and striking defendant’s answer is quashed.

TERRELL, C. J., and THOMAS, HOB-SON, and ROBERTS, JJ., concur.

DREW, J., dissents.

DREW, Justice

(dissenting).

I am of the view that this Court should align itself with the courts of Kentucky and California which hold that a policy of liability insurance is a matter not privileged which is relevant to the subject matter involved in an action for damages arising out of an automobile accident. It is my view that Rule 1.21(b) construed in the light of the admonition in Rule A to the effect that the rules are adopted "to secure the just, speedy and inexpensive determination of every action” clearly authorizes the interrogation of the defendant as to the amount, terms and conditions of such policy.

Automobile liability insurance is closely related to the general welfare. A great number of states require that automobile owners carry such insurance. Obviously the public purpose involved in such legislation and the underlying purpose which prompts an enactment is the protection of the injured party and not the tort feasor. The state is not particularly interested in whether a tort feasor is required to pay a judgment but it is interested in protecting the public generally from injury occasioned by the operation of motor vehicles upon the public highways and public places. Moreover, it is a matter of common knowledge that the vast majority of claims arising out of such accidents are settled by negotiation rather than litigation. I assume also that it would not be difficult to show that a great majority of cases on which litigation is actually commenced are settled before trial.

I can see no harm which will come from requiring a defendant to disclose the limits and conditions of the policy of insurance which he carries for the obvious benefit of the injured party. Moreover in negotiations or litigation both sides should have access to all of the facts. The administration of justice should not be a game of hide and seek. One party should not be blindfolded in negotiating a settlement or a compromise. It is a fundamental concept that both sides should have all the facts in the settlement of disputes and this can never be achieved unless some method is provided of requiring the full disclosure by a process which will afford protection to the party entering into a settlement of the terms and extent of liability insurance policies.

California, Kentucky and at least one or two Federal district courts have construed rules almost identical to ours to allow discovery with reference to this matter. I feel that this is the modern and better view and one which will tend to promote the speedy administration of justice and the disposition of claims arising out of automobile accidents which are becoming a serious consideration of all the courts of the land.

      . See the eases cited by plaintiff to •which the majority opinion refers in connection with this point.

      . See the cases cited by plaintiff to which the majority opinion refers in connection with this point.


text:
    James W. CRAWFORD and Marcus Clemons, Appellants, v. STATE of Florida, Appellee.
    Supreme Court of Florida.
    Oct. 23, 1957.
   PER CURIAM.

Affirmed.


text:
    Helene MENNINGER, Appellant, v. CITY OF MIAMI BEACH, Appellee.
    Supreme Court of Florida.
    Oct. 25, 1957.
   PER CURIAM.

Affirmed.


text:
    Marcellus STALEY, Appellant, v. Lavergne L. GASSLER and Beatrice K. Gassler, his Wife, Appellees.
    Supreme Court of Florida.
    Oct 25, 1957.
   PER CURIAM.

Affirmed.


text:
    Myron M. WEISS, Appellant, v. Sylvia WEISS, Appellee.
    Supreme Court of Florida.
    Sept. 18, 1957.
    Rehearing Denied Nov. 18, 1957.
   PER CURIAM.

Affirmed.


text:
    H. P. WORLINE and Anna B. Worline, his Wife, Appellants, v. E. C. CAMP and Lola G. Camp, Appellees.
    Supreme Court of Florida.
    Oct. 25, 1957.
    Rehearing Denied Nov. 18, 1957.
   PER CURIAM.

Affirmed.


text:
    Robert R. FRANK, as Trustee, Appellant, v. Goldy SHERADSKY, as Trustee, et al., Appellees.
    Supreme Court of Florida.
    Oct. 2, 1957.
    Rehearing Denied Nov. 6, 1957.
   PER CURIAM.

Affirmed.