author: GLADNEY, Judge.

text:
    George ANDERSON, Plaintiff-Appellant, v. BRACKIN MOTORS, Inc., Defendant-Appellee.
    No. 8654.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.

      Polk, Foote & Neblett, Alexandria, for appellant.
    T. C. McLure, Jr., Alexandria, for ap-pellee.
   GLADNEY, Judge.

This suit was brought by George Anderson against Brackin Motors, Inc., for the recovery of damages sustained by reason of personal injuries and property loss in a collision between plaintiff’s pick-up truck and a sedan automobile owned by the defendant and driven by its employee, Billy Ray Sibley. The accident occurred August 30, 1955, on U. S. Highway No. 71, approximately two and one-half miles north of Cheneyville. Following the trial on the merits, with written assigned reasons, the trial judge held that the accident was caused by the joint and concurrent negligence of the vehicles involved and denied recovery to plaintiff and rejected a re-conventional demand for damages asserted by defendant. From this judgment plaintiff has appealed.

The accident took place about dusk while there was still visibility. George Anderson was traveling in a northerly direction and nearing the Loyd Hall Road, which he planned upon entering by making a left turn. This road does not cross Highway No. 71, but is a public road which forms a “T” intersection on the west side. The Loyd Hall Road as it leaves the paved highway, drops abruptly to go under a railroad trestle, which railroad parallels U. S. Highway No. 71 at that point. For this reason apparently the entry of the side road and its intersection with U. S. Highway No. 71 is difficult of observation to a motorist traveling on the latter highway. As Anderson approached the Loyd Hall Road, his truck was ahead of two vehicles proceeding in a string of traffic. The truck was followed by an automobile driven by Oscar Burkes and a third vehicle was operated by Abbey Harper. The two vehicles involved in the accident had turned on their lights. It is established by a preponderance of the evidence that when George Anderson was over one hundred feet from the Loyd Flail Road he extended his hand as a signal for making a left turn and began slowing his vehicle from a speed of thirty-five miles per hour. Sibley, traveling at a rate of speed of from fifty to sixty miles per hour slowed his car and came up behind these vehicles, then pulled out to the left, passed the Harper automobile and was engaged in passing Burkes when the west lane of the highway was invaded by the Anderson truck, which had commenced the execution of a left turn. Plaintiff’s truck was struck behind its cab by the right fender of the car driven by Sibley.

The driver of defendant’s automobile has been charged with specified acts of negligence including: the failure to keep a proper lookout, traveling at an excessive rate of speed, and not having his vehicle under control. Charges of negligence made against Sibley are virtually conceded. As a defense, the defendant relies strongly upon the independent negligence of plaintiff and in support of this defense has filed a special plea of contributory negligence, in which it is charged Anderson was principally at fault: in failing to keep a proper lookout, and in making a left turn without first determining that such a maneuver could be made in safety. Thus, the chief point to be determined is whether or not plaintiff was guilty of such negligence as will bar his right of recovery.

Plaintiff testified he was proceeding at about thirty-five miles per hour, and when more than one hundred feet from the intersection with the Loyd Hall Road he gave the proper left turn signal and slowed his truck; that while giving this signal he looked in the rear view mirror and observed that the car immediately following slowed down in response to his signal; and that as he began the turn into the side road he heard brakes squealing and then the crash occurred. He testified further that his front and rear lights, including the stop light, were in good operating condition and that the lights of the truck were on. He testified also that after his turn signal was given, one automobile passed him from the rear. He testified he did not see nor observe the approach of the defendants vehicle.

It was Burkes’ testimony that upon observing the signal given by Anderson, he reduced his speed from about forty miles per hour to about five miles per hour and was trailing closely behind plaintiff’s truck — a distance of about fifteen feet to the rear thereof — when Anderson began to make the left turn. This witness also stated that when the left turn maneuver was undertaken Sibley was engaged in the act of passing his vehicle, being alongside and even with it. He related he did not hear Sibley sound his horn.

Harper testified he was driving about thirty-five miles per hour approximately one hundred yards to the rear of Burkes’ vehicle when the Sibley car passed him; that he was unable to estimate Sibley’s speed and that he did not see the accident. Other witnesses, Sam Dixon and Oscar Anderson, were seated on a railroad trestle near the point of collision. These two witnesses testified they saw the hand signal given by George Anderson, that the defendant’s car was traveling “too fast”, and further that the truck’s front wheels were nearly off the pavement when the collision occurred. Sam P. Lyles, who drove up shortly after the collision, testified only to a statement made by Sibley immediately after the accident to the effect Sibley did not see the truck until he struck it.

Sibley, an automobile mechanic, was accompanied by his wife, Mrs. Sibley, and their infant. Neither observed the hand signal given by plaintiff. Both testified that Sibley sounded his horn as he started to pass the Burkes car and that as he pulled up close to the latter car, plaintiff commenced making a sharp turn to the left. Sibley testified he first observed the truck when about seventy to seventy-five feet from the point of impact.

We find the negligence of Sibley is clearly established by the evidence. His failure to heed the hand signal which should have been visible to him had he been observant, suffices to establish negligence on his part. Furthermore, the slowing of the vehicles should have indicated the necessity for a greater reduction in his speed. Sibley was also guilty of violating LSA-R.S. 32:233, subd. E which prohibits-the passing or overtaking of another vehicle proceeding in the same direction at an intersection of the highway. Therefore,, unless Anderson was guilty of such negligence as should bar his recovery, he would! be entitled to judgment. As above stated,, the judge a quo held plaintiff was negligent in failing to observe the approach of defendant’s automobile in making a left turn when such maneuver could not safely be undertaken.

The Motor Vehicle Regulatory Statute and particularly LSA-R.S. 32:235, subd. A and 32:236, subd. A, impose the-duty upon a motorist driving on the highways of this state to ascertain before turning that there is no traffic approaching' from either direction which will be interfered with and shall yield the right-of-way to such approaching traffic, and he is forbidden to make a turn unless the way is. clear. He is further enjoined not to turn from a direct line before he shall first see-that such movement can be made in safety. Therefore, in the resolution of the question of Anderson’s negligence, a violation of the foregoing provision would result in negligence. The foregoing statutory directives have special application where a left turn is being made into an unmarked dirt road. American Fidelity & Casualty Company v. Drexler, 5 Cir., 220 F.2d 930.

A corollary from the aforementioned statutory provisions is that a motorist shall not exercise a left turn except under most favorable conditions which can be known only to the motorist by a proper exercise of his senses of sight and hearing. Swinney v. Primeaux, La.App. 1949, 40 So.2d 754. Further, it is uniformly held by our courts that a motorist intending to make such a maneuver must first ascertain by proper observation that the maneuver can be executed in safety and carefully, and where a motorist fails to carefully survey his surroundings to ascertain whether traffic conditions warrant a left turn, he acts at his own peril and responsibility. In event of an accident while engaged in such a maneuver, without the exercise of these precautions he is guilty of negligence. The motorist attempting such a maneuver is held to the highest degree of vigilance and alertness, without which the giving of a signal by hand or horn is immaterial, if, at the time the motorist does not have an opportunity to make the left turn in safety. Gaines v. Standard Accident Insurance Company, La.App. 1947, 32 So.2d 633-637; Dupre v. Union Producing Company, La.App.1950, 49 So.2d 655; Myers v. Maricelli, La.App.1951, 50 So.2d 312; Holden v. Rester, La.App.1953, 66 So.2d 366; Callia v. Rambin, La.App. 1955, 78 So.2d 44; and Mansfield v. Toye Bros. Yellow Cab Company, La.App.1955, 78 So.2d 544. The foregoing legal principles are well rooted in our jurisprudence by repeated decisions and basically these principles rest upon Sections 32:235, subd. A and 32:236, subd. A of the LSA-Revised Statutes.

We find the evidence establishes beyond reasonable doubt George Anderson did give a hand signal in compliance with statutory duty and he did in fact observe that the vehicle immediately behind him recognized his signal and slowed down for the purpose of permitting the left turn. Anderson also observed and permitted an overtaking vehicle to pass him after he first gave the signal for a left turn, but his observation went no further than this, according to his own testimony. His conduct, however, does not reflect that degree of alertness and vigilance legally imposed as a condition precedent to the dangerous left turn. Had he made a timely and proper surveillance he would have seen the approach of Sibley and refrained from attempting the unsafe maneuver. The evidence discloses Anderson commenced his turn when Sibley’s vehicle was less than one hundred feet to the rear and was quickly overtaking the truck. To make such a turn under such circumstances violated the duty imposed by LSA-R.S. 32:-235, subd. A and 32:236, subd. A. We are, therefore, of the conviction Anderson was guilty of concurrent negligence and his right of recovery must be denied.

Counsel for appellant earnestly argue that Moncrieff v. Lacobie, La.App.1956, 89 So.2d 471, a decision by our brothers of the First Circuit, is authority for finding that Anderson fully met the requirements of the law before attempting his left turn. The district Judge, in our opinion, correctly held the cited case to be without binding application because of differences in the facts herein involved. We agree with his views. Moncrieff v. Lacobie involved an intersectional collision in the City of Baton Rouge. Therein plaintiff had stopped at the intersection and waited for the passage of certain traffic to her left and then undertook the left turn. Citing LSA-R.S. 32:237, subd. B, Judge Tate of the First Circuit Court of Appeal, held that the proximate cause of the accident was the negligence of the defendant in attempting to pass plaintiff at the intersection under the circumstances presented. Section 237, subd. B provides:

“The driver of a vehicle approaching but not having entered an intersection shall yield the right of way to a vehicle within such intersection and turning therein to the left across the line of travel of his vehicle; provided, the driver of the vehicle turning left has given the signal required by R.S. 32:236.”

In Moncrieff v. Lacobie the traffic ordinance unquestionably required the defendant to proceed at a much slower rate of speed, and, therefore, the defendant’s vehicle was required to be kept under closer control than that of Sibley, who by statute, was permitted a higher rate of speed. Also, in the Baton Rouge case, the intersection was plainly observable and differs in that respect from the case at bar. We note, too, Anderson did not bring his vehicle to a stop, but his truck and the vehicles of Burkes and Harper were both moving forward when Sibley began passing these vehicles. We, therefore, are of the opinion that the case of Moncrieff v. Lacobie was decided upon a different factual situation.

Our conclusion is the plaintiff was not properly observant and began his left turn maneuver before being certain that such an undertaking could be made safely, and as a consequence, he must be adjudged guilty of negligence which was a concurrent cause of the collision. For these reasons the judgment from which appealed must be affirmed at appellant’s costs.


source: Caselaw Access Project

author: TATE, Judge.

license: Public Domain

text:
    MARYLAND CASUALTY COMPANY, Plaintiff-Appellant, v. GULF REFINING COMPANY et al., Defendants-Appellees.
    No. 4430.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.

      Mouton Champagne & Colomb, Lafayette, for appellant.
    Lawes, Cavanaugh, Hickman & E?#uner Lake Charles, for appellee.
   TATE, Judge.

This case was previously transferred by us to the Supreme Court, 77 So.2d 752, but was retransferred by the high court to us. 231 La. 714, 92 So.2d 697.

Plaintiff, as compensation insurer of J. W. Stewart, sues for recovery of benefits paid by it to W. H. Langton, an employee of Stewart disabled allegedly through the negligence of defendant Gulf Refining Company (and also one Laurent who is not a party to this appeal); making co-defendant Gulf’s liability insurer. The Louisiana compensation act specifically provides that the employer may bring suit against third person tortfeasors causing the-compensable injuries to the employee, LSA-R.S. 23:1101, and that the employer’s, compensation insurer is subrogated to all rights of the employer under the compensation act, LSA-R.S. 23:1162.

Defendants filed exceptions of no right and of no cause of action.

Over objection of counsel for the plaintiff, the District Court permitted certain-evidence to be received in disposing of the-alleged exception of no right of action; and then sustained same, dismissing plaintiff’s suit; hence this appeal.

Having alleged that under the compensation act “petitioner is subrogated to the-rights of William Herbert Langton against the defendants herein to the extent of the payments made to him”, the crux o-f the-tort action is stated in the petition to be as follows:

“On or about May 21, 1952, William Herbert Langton, employee of J. W. Stewart, distributor of Gulf Refining Company products, was unloading gasoline from a tank truck at the J. L, Laurent Gulf Station, DeRidder, Louisiana, and was standing between the said truck, and the gas pump when suddenly” * * * through the negligence of defendants he was severely burned. (Article 6; Italics ours.)

The question presented by the exception of no right of action is whether or not J. W. Stewart as distributor of Gulf Refining Company products was an independent contractor performing part of the trade business, business or occupation of the Gulf Refining Company under LSA-R.S. 23:-1061, so that Stewart’s employee (Langton) had a cause of action for workmen’s compensation against Gulf which consequently excluded any cause of action in tort against said firm. Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852, Sisk v. L. W. Eaton Co., La.App. 1 Cir., 89 So.2d 425.

Stated otherwise, defendants seek to explain by extraneous evidence that J. W. Stewart, “distributor of Gulf Refining Company products” was an independent contractor of Gulf rather than merely a buyer of its products.

If the defense raised by this exception relates to plaintiff’s “right of action" rather than to (as plaintiff argues) his “cause of action”, the District Court •correctly admitted evidence over plaintiff’s objection in reaching judgment thereupon; for while extraneous evidence may be introduced in the determination of an exception of no right of action, it is equally well settled that the exception of no cause of action is triable on the face of the papers alone, admitting for purposes of the exception all well-pleaded allegations of the petition. Roy O. Martin Lbr. Co. v. St. Denis Securities Co., 225 La. 51, 72 So.2d 257.

The learned District Judge held that the exception in question was levelled at plaintiff’s right to exercise the remedy, as distinguished from the remedy itself, and was therefore properly speaking an “exception •of no right of action”, in the decision of which evidence might be taken. It is admitted that if this is .an “exception of no cause of action”, that the pleadings taken as true require its overruling, and the remand for trial on the merits.

Since the time of the opinion below, three decisions have been rendered by the Supreme Court and ourselves which have clarified what was admittedly a clouded question at the time: Wischer v. Madison Realty Company, 231 La. 704, 92 So.2d 589; Rapides Grocery Co. v. Vann, 230 La. 829, 89 So.2d 359, and Leteff v. Maryland Casualty Co., La.App. 1 Cir., 82 So.2d 80, certiorari denied.

As these cases all emphasize, the exception of no right of action is the exception of want of interest or capacity and relates “specifically to the person of the plaintiff” and its function “is to raise the question of whether a remedy afforded by the law can be invoked by a particular plaintiff”; whereas the exception of no cause of action “relates generally to the action”, and its function “is to raise the general issue as to whether any remedy is afforded by the law” to the plaintiff or to anyone similarly situated, summarizing and quoting from the Wischer case, 92 So.2d 589, at page 591. These cases indicate that a right of action is remedial, the right to pursue a judicial remedy, that is, the right to institute and maintain a suit for a certain object; a cause of action is substantive, the entire state of facts that give rise to an enforceable claim, or in other words, the actual right or obligation which is sought to be enforced.

These cases all cite and rely on the studies of a leading authority upon Louisiana procedure, Dean Henry G. McMahon, and upon the famous leading decision of Duplain v. Wiltz, La.App.Orleans., 174 So. 652, which at page 655 states: “The right to sue is conferred either by statute or the jurisprudence, whereas the cause to sue is legally determined after investigation of the facts presented.”

In the Duplain case, an occupant of a building sought recovery of damages for personal injuries caused by defects therein. Made defendant was the alleged owner of the building. Under an exception of no right of action the defendant introduced evidence, over plaintiff’s objection, successfully proving that defendant was not the owner of the building and therefore not the proper defendant. The appeal was from dismissal of the suit. Observing that such a “question is purely one of fact and does not militate against plaintiff’s legal right to maintain the action”, the appellate court concluded that if after trial defendant was found not to be the owner, “such finding will not be destructive of plaintiff’s inherent right to sue the defendant, but will serve to show that the plaintiff was without justification or cause to enforce her right against the defendant.” Therefore the evidence had been improperly admitted, as the exception was levelled at the general cause of action rather than plaintiff’s individual right to enforce same, and was therefore an exception of no cause (rather than of no right) of action.

Likewise, in the Wischer case above-cited the exception was based upon the defense that the plaintiffs were without interest or right to maintain the petitory action because of a quitclaim and judicial admission by them relinquishing interest in the property sought to be recovered. Reversing the lower courts, our Supreme Court held that this defense was to the cause of action, presenting factors which tend to defeat the action itself, rather than relating specifically to the persons of the plaintiffs or their right to bring the action.

And in the Rapides Grocery Company v. Vann case, above-cited, the Supreme Court held that an exception of no right of action, requiring the introduction of evidence, did not lie against a separation of patrimony action, even though such exception sought to controvert an essential allegation of the cause of action — by proving that defendant heir was free of debt, and that therefore plaintiff (a creditor of the estate) had no right to bring this action, which seeks to prevent the dead ancestor’s effects being absorbed by the heir’s (i. e., the defendant’s therein) personal creditors.

In the exception of no right of action, the inquiry relates to the person of the plaintiff or “ 'to whether plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy,’ ” Vegas v. Cheramie, La.App. 1 Cir., 69 So.2d 66, 68. Roughly speaking, the thrust of the exception of no right of action is to the effect that this particular plaintiff has no standing to bring the action — that is, that he does not fall within the general class in whose favor the law grants the remedy; while the thrust of the exception of no cause of action questions the existence of a legal remedy for this particular cause of action to any plaintiff.

The compensation act subrogates the employer and his insurer to the employee’s tort claim against the third party tort-feasor to the extent of the compensation benefits paid. This is the “right of action” conferred by the statute in question, and the want of interest or capacity of an alleged employer or insurer to bring suit thereunder might possibly be questioned by an exception of no right of action which for instance questions the plaintiff’s individual status as a subrogated employer or insurer thereof of an injured employee, the classes entitled to such right of action created by the statute.

But the present exception is not levelled against the individual disqualification of the present plaintiff from the classes conferred a right of action by the statute — for it is unquestioned that Stewart was the employer of the disabled employee, and that plaintiff was the compensation insurer of Stewart — , but against the disqualification of all plaintiffs similarly situated.

Basically, the defense is not that because of a quality individual to plaintiff, it has no right of action. The defense is that Langton (the disabled employee to whose rights plaintiff is subrogated to the extent of the compensation benefits paid) or anyone similarly situated cannot recover as the employee, not of the buyer of Gulfs products, but of Gulfs subcontractor. This goes to the merits of the cause of action, rather than to the person of plaintiff or of Stewart or of Langton.

The defense is not that Langton or plaintiff, his subrogee, has no legal right to institute the suit; it is that they have no legal right to recover, i. e., no cause of action: the former type of defense raising questions of interest or capacity to institute the suit, is alone triable by exception of no right of action in limine litis; the latter, raising questions of whether legal recovery can be had by one given legal standing or right to institute the action, is subject to an exception of no cause of action if it can be determined on the face of the pleadings, but if evidence is necessary is triable on the merits along with the other factual defenses to plaintiff's claim.

As we stated in Leteff v. Maryland Casualty Co., La.App., 82 So.2d 80, at page 83, “Our inquiry herein therefore is not directed to the person or capacity of the plaintiff, but to whether or not under these facts any one had a cause of action. Thus defendant questions not plaintiff’s right of action, but his cause of action. Plaintiff’s objection to admission of any testimony should have been sustained, and defendant’s exceptions of no right and cause of action should have been overruled.”

As stated in the Leteff opinion, although it is often a sensible procedure to admit evidence without objection on trial of an exception of no cause of action in order to eliminate issues or parties in advance of trial on the merits, “in the absence of legislative authorization of separate trials of separate issues, we feel that such piecemeal trials are neither favored nor authorized by our jurisprudence,” 82 So.2d 84. See Loew’s Inc. v. Don George, Inc., 227 La. 127, 78 So.2d 534. And while doubtless there are good policy reasons favoring separate trial of separate issues, we must also concede that perhaps equally sound policy reasons favor Louisiana’s present system of avoiding piecemeal trials.

For although undoubtedly efficiency results when issues and parties are correctly eliminated in advance of trial on the merits, just as undoubtedly inefficiency and hardship result when parties or issues are incorrectly eliminated in advance of trial on the merits, causing the necessity of remands, retrials, and multiple appeals and delays. And courts being (like all human institutions) fallible, errors must of necessity occur, as the tortuous appellate course of this case to date amply indicates. Further, the compartmentalizing of the knowledge of various witnesses as to various separately tried issues does not necessarily afford the most efficient or most convenient way to secure their testimony.

We do not find persuasive plaintiff’s argument that the Supreme Court’s affirmance of the lower courts’ sutaining exceptions of no right and cause of action in similar suits, Coal Operators Cas. Co. v. Fidelity & Cas. Co., 223 La. 794, 66 So.2d 852, Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852, indicates any intentional holding whatsoever as to the present question which was not even referred to therein. As the Wischer case remarked, 92 So.2d 589, 590, “the indiscriminate use of the exceptions of no cause of action and of no right of action” in conjunction has caused some confusion; and it is apparent from reading those cases that the exceptions sustained therein on the face of the pleadings were, properly speaking, exceptions of no cause of action.

Likewise insignificant in our opinion, is the sometimes use of the word “right” (e. g., LSA-R.S. 23:1101, referring to the “claim or right of action of the injured employee * * * against such third person”) describing the cause of action of the injured employee or his subrogee against the third party tortfeasor. It is apparent from the context in each instance that the term “right” is used in its generic sense of a legally enforceable right (including that conferred by a cause of action) ; rather than as a term of art in the technical phrase “right of action” in Louisiana practice and procedure, referring to the legal right to maintain an action or to bring suit without reference to whether the claim (cause of action) upon which founded is valid and enforceable. For a roughly similar distinction in some common law jurisdictions, see 37A Words and Phrases, Right; Rights, p. 353 et seq., and, Right of Action, p. 383 et seq.

Defendants-appellees have raised a question by this exception as to whether the plaintiff has a cause of action against itself which, since it cannot be decided on the face of the pleadings, must be relegated to the trial on the merits for determination along with all the other factual issues.

For the reasons assigned the judgment appealed from is reversed and it is ordered that the case be remanded for trial in the court below; the cost of this appeal to be paid by the defendants and all other costs to await the final termination of the case.

Reversed and remanded.

      . This ruling is particulary noteworthy because it rejected the contrary conclusions reached by our brethren of the Second Circuit as to the function of the exception of no right of action in their scholarly re-evaluation of the source jurisprudence of the origins of the exception, La.App., 84 So.2d 831.


text:
    Rodell Blanchard FAIRBANKS, Plaintiff-Appellant, v. TRADERS AND GENERAL INSURANCE COMPANY and Cecil L. King, Defendants-Appellees.
    No. 8626.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Voltz & Voltz, Alexandria, for appellant.
    Gold, Hall & Skye, Alexandria, for ap-pellees.
   GLADNEY, Judge.

This is an action ex delicto instituted by Rodell Blanchard Fairbanks in his individual capacity and as administrator for his minor children, Cassie Fairbanks, aged seventeen and Thomas Earl Fairbanks, fourteen years of age, for the recovery of damages arising from personal injuries suffered in a collision between two motor vehicles while the children were guest passengers in an automobile owned and operated by Walter Willingham. Made respondents herein are Cecil L. King and his liability insurer, Traders and General Insurance Company. The accident in which the Fairbanks children were injured took place on August 6, 1954, at approximately 10:30 o’clock p.m., at which time the Will-ingham automobile in which Cassie and Thomas Earl Fairbanks and James Ray Morgan were riding as guest passengers, was traveling in a southerly direction on U. S. Highway No. 165, about one mile south of Pollock, in Grant Parish, Louisiana, when the vehicle driven by Walter Willingham was struck in a head-on collision by a pick-up truck being operated by Cecil L. King. Willingham was instantly killed and all other occupants of the two vehicles received serious injuries. A companion suit, entitled Morgan v. Traders and General Insurance Co., La.App., 95 So.2d 743, in which the recovery of damages is sought for injuries sustained by James Ray Morgan has been consolidated with these proceedings for purposes of trial and judgment. After a trial on the merits, judgments were rendered rejecting in toto the demands of each of the claimants. From the decree this appeal was perfected by plaintiff.

For a cause of action the petitioner has alleged that the accident was caused solely by the negligence of Cecil L. King in driving at an excessive rate of speed, in driving improperly and unlawfully down the center of the highway and while driving under the influence of intoxicating beverages, by not keeping a careful lookout, and by driving with wanton disrespect of other vehicles on the highway. Defendants specifically deny the allegations of negligence attributed to King and assert the accident was due entirely to the negligence of the decedent, Walter Willingham: in failing to maintain a proper lookout, driving at an excessive rate of speed, in not having his vehicle under control, driving in the left side of the highway and in driving in a reckless, careless manner while in an intoxicated condition. Further pleading alternatively, Cassie Fairbanks and Thomas Earl Fairbanks are charged with independent contributory negligence in that they placed themselves in a position of danger by riding in a vehicle known by them to be driven by a person in an intoxicated condition.

After a careful examination of the record which contains nearly five hundred pages of testimony, we find the primary question to be determined is whether or not Cecil L. King was guilty of actionable negligence. This is in fact the only issue to which we are to direct our consideration, inasmuch as there is no substantial evidence upon which a plea of contributory negligence may be exercised to bar any valid rights of the minors who were riding in the car of Walter Willingham. Further, the record does not make Willingham a party to the suit and consequently his negligence is immaterial to a decision herein. This is to say that plaintiff is entitled to recover any proven damages if it is shown by the evidence that King was guilty of any negligence contributing to the accident.

The accident followed these related circumstances: On the afternoon of August 6, 1954, King and his wife left Westwego, Louisiana, which town is two hundred three miles, more or less, from the scene of the accident. They carried with them some sandwiches and four cans of beer to be consumed on their journey to Olla, Louisiana, where a relative of Mrs. King was about to undergo surgery. They stopped briefly along the way at two places where Mrs. King said they drank coffee. She testified that between Westwego and Baton Rouge she drank one can of the beer and that her husband took no alcoholic drinks of any sort. She related that just before the accident she made herself comfortable on the front seat and was asleep at the time the two motor vehicles collided. Walter Willingham, shortly before the accident, requested O. J. Honeycutt to take Cassie Fairbanks in his car to the Pollock movie theater and bring back Thomas Earl Fairbanks and James Ray Morgan, who had been watching the picture show. After Honeycutt had picked up the boys he delivered the car to Willingham, who, after stopping briefly by his sister’s home, proceeded to take his passengers to their homes south of Pollock and met with the accident which resulted in his death.

Strangely enough, not one of the surviving five occupants gave any direct testimony bearing upon the events immediately preceding and leading up to the crash of the two vehicles. King sustained serious and severe head injuries which his attending doctors stated resulted in an impairment of his brain. King testified he had no recollection of anything relating to the accident or his journey from Westwego to the scene of the accident. He related his last remembered act was at 2:30 o’clock p.m. on the day of the accident when he spoke to his employer and after that he had absolutely no recollection of anything which happened to him until fifteen days following his injury. Mrs. King testified she was asleep when the accident occurred. Cassie and Thomas Earl Fairbanks and James Ray Morgan all testified they had no recollection of how the accident occurred. This situation imposed upon plaintiff the necessity of establishing his case by circumstantial evidence.

Specifically, it is alleged that King was negligent in driving at an excessive rate of speed, in a reckless manner while intoxicated, and that physical evidence relating to the damage inflicted to and the position of the two automobiles following the impact indicate the King pick-up truck was outside of its proper lane of travel at the moment of the collision.

To substantiate the charge of excessive speed, plaintiff can rely only on inferences which we consider remote and speculative. First, it is contended King drove from Westwego to the locus of the accident, a distance of two hundred miles, in a period of time which counsel for plaintiff reasoned was about four hours. From this it is argued that King’s average speed for the distance was 50.6 miles per hour and, therefore, at the moment of the accident he was exceeding the legal speed of forty-five miles per hour as fixed by the State Motor Vehicle Regulatory Act, and particularly LSA-R.S. 32:225. The fallacy of this deduction is manifest. King may well have been going seventy miles per hour at one point along the journey and twenty miles at another. The only relevant fact is the speed at which he was driving his truck at the time of the collision. There was not one scintilla of relevant evidence upon this important factor. Secondly, reliance is placed upon the testimony of T. J. Smith, who operated a service station about two hundred yards south of the point where the accident occurred. He testified the truck passed his station at a fast rate of speed and was traveling down the center of the highway and weaving. Smith’s testimony was somewhat impeached by the testimony of Trooper C. D. Bates, but this is of no import because we consider the evidence remote and - speculative. Likewise, the testimony of O. J. Honeycutt and Layton Campbell, who testified they. observed a pick-up truck driving in the center of the highway at points distant from the collision, is in our considered opinion, remote and speculative. We may add that none of these witnesses gave any clear and positive identification of the King truck. It is our finding plaintiff has entirely failed to substantiate by evidence of probative value that the pick-up truck driven by King was at the time of the accident traveling at an unlawful rate of speed.

Nor is there any proof whatsoever that King was in an intoxicated condition while driving his truck. The only direct testimony is that of Mrs. King who says that at the time she left Westwego there were four cans of beer in the truck, that between Baton Rouge and Westwego she drank one of these, and that her husband did not drink any beer or other intoxicating beverage. After the accident three unopened cans of beer were found in the truck. It is true that Mrs. King gave testimony by deposition which she later contradicted in some respects, but according to this factor its proper weight, there still remains no evidence from which we may properly infer that King was in such a condition he did not or could not have had proper control over his truck.

Finally, plaintiff urges that we must find that the King truck at the moment of collision had invaded the lane of travel which properly belonged to Willingham. Again the proof offered fails to substantiate the contention. Found in the record is a photograph, enlarged as published in an Alexandria newspaper, which undeniably shows the force of the impact struck the left front portion of each of the two cars involved. But seizing upon a statement made by Trooper A. B. Corley to the effect the entire front of the King truck was damaged, counsel has determined that the King truck was at the moment of impact six inches across the center of the asphalt. We have carefully read the testimony of Trooper Corley and it is clear to us that he did not testify the entire front portion of the truck was involved in the impact, other than to state the entire front of the truck was damaged. Photographs of the vehicles more reliably reveal with clarity that the direct blow sustained by each vehicle was confined within its left front half.

Troopers A. B. Corley and C. D. Bates, both of whom had had considerable experience in the investigation of automobile accidents, expressed their conviction that the accident occurred in King’s proper lane of traffic, and this was evidenced by the debris and a gouged out place in the asphalt found therein. At the point of collision the asphalt portion of the highway was measured and found to be twenty-two feet, seven inches in width. There was no marked center line. The indentation in the asphalt was thirteen feet, nine inches from the outside edge of the southbound lane, or west half of the highway, which lane would be Willingham’s course of travel and distant eight feet, ten inches from the edge of the northbound lane or east half of the asphalt, which would be the proper lane of travel for the King truck. The officers stated the gouged out place in the highway was manifestly made by the left front rim and wheel of the Willingham automobile, the tire thereon having been torn away in the crash. It was their opinion that as the Willingham car pivoted on the left front rim and wheel from the blow it was struck, the rim or wheel dug out a hole in the asphalt. It was further reasoned that since the tire remained on the left front wheel of the truck after the accident, the highway was damaged solely by the left front rim and wheel of the Willingham vehicle. This physical evidence is not refuted and its presence in King’s proper lane of travel demonstrates, we think, rather conclusively that Willing-ham invaded the east lane of traffic and precipitated the accident. There is nothing in the evidence, we think, which in the slightest degree indicates King was not on his proper side of the highway at the time of the impact.

The foregoing findings which impress us as being free of uncertainty require this coui't to hold that Cecil L. King was entirely blameless. This resolution renders it unnecessary to consider the other issues tendered.

For the reasons above stated, the judgment from which appealed is affirmed at appellant’s costs.


text:
    Mrs. Vera Frazier MORGAN, Plaintiff-Appellant, v. TRADERS AND GENERAL INSURANCE COMPANY and Cecil L. King, Defendants-Appellees.
    No. 8627.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Voltz & Voltz, Alexandria, for appellant.
    Gold, Hall & Skye, Alexandria, for appellees.
   GLADNEY, Judge.

This action was brought by Mrs. Vera Frazier Morgan, petitioning on behalf of herself individually and as natural tutrix of her minor child, James Ray Morgan, who sustained injuries in an automobile accident which occurred on August 6, 1954, near Pollock, Louisiana. The facts and issues herein involved have been fully stated and our findings thereon recorded in the companion case of Fairbanks v. Traders & General Insurance Co., La.App., 95 So.2d 739.

For the reasons stated in Fairbanks v. Traders & General Insurance Co., supra, the judgment from which appealed is affirmed at appellant’s cost.


author: AYRES, Judge.

text:
    Una LABORDE, Plaintiff-Appellant, v. Abel A. MAYEUX, Defendant-Appellee.
    No. 7956.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    See also, 66 So.2d 32.

      Earl Edwards, Marksville, for appellant.
    Maxwell J. Bordelon, Marksville, for appellee.
   AYRES, Judge.

This is an action of boundary. Plaintiff and defendant own adjoining properties situated in Avoyelles Parish, Louisiana. Plaintiff alleges that defendant has encroached upon and taken a portion of her property along the East boundary thereof. She avers that she has, without success, endeavored to have the boundary line between the property of her’s and that of defendant fixed, agreed upon and extra-judicially determined.

She, therefore, accordingly prayed that said boundary be fixed judicially. Pursuant to her prayer, the court appointed Blanchard J. Marchand, a registered surveyor, to make a survey, who has complied with the order of the court, and has prepared and filed a plat and proces verbal of his survey. To plaintiff’s demands, defendant filed a plea of ten years acquisitive prescription under LSA-C.C. articles 3458 and 3478, following which and subsequent to the filing of the proces verbal aforesaid, a rule issued at the instance of plaintiff, directed to the defendant, ordering him to show cause why said survey should not be approved and homol-ogated. No response was made to the rule but defendant answered plaintiff’s demands as set forth in the petition, in which he made these contentions: (1) that both plaintiff and defendant in the acquisition of their properties had a common ancestor or author in title; (2) that defendant had the more ancient title and accordingly, his ownership should be recognized in accordance with his title; and (3) that his title included or encompassed the area in dispute.

The survey was neither traversed, attacked, controverted nor disputed in any of defendant’s pleadings in any manner. The issues upon the merits and the plea of prescription, as well as the rule, were consolidated for trial, and, after trial there was judgment sustaining the plea of prescription, rejecting plaintiff’s demands and dismissing her suit at her cost. From this judgment plaintiff has appealed.

First, logically, for consideration is the matter of the survey. In compliance with the order of the court the surveyor after having been duly sworn, gave notice to both plaintiff and defendant of the date and hour he proposed to begin his survey. Plaintiff appeared with her title papers. Defendant was absent. Due, however, to inclement weather the survey was not made on the day specified. Subsequently, however, the surveyor issued additional notices with which the interested parties were served, and, at the appointed time, the survey was begun in the presence of both parties. A written detailed report of the proces verbal, as well as a plat of his survey was prepared, returned to court and filed. In accordance therewith it was disclosed that the surveyor determined that the East boundary of plaintiff’s property coincided with and was co-existent with the East boundary of Section 43, Township 2 North, Range 4 East, and that this section line was the correct dividing line or boundary between the properties of plaintiff and defendant so far as their properties were contiguous, that is, for a distance of 204.3 feet, extending "Northwest along the section line from the Southeast corner of said section.

As stated above, the survey was not traversed or controverted in any manlier. No proof was offered in rebuttal or to disprove the correctness of said survey. The presumption is that a survey made under a court’s supervision and in accordance with all the formalities required by law, is correct. Jewell v. Porche, 1847, 2 La.Ann. 148; Anding v. Smith, La.App. 1939, 189 So. 362; Smith v. Scarpengos, La.App. 1952, 56 So.2d 757. Our review of the record has served to convince us that the survey is in fact correct and was predicated upon sound procedure. The survey should be accepted.

Attention is next directed to the proposition submitted in defendant’s answer. As to the first of these, that is, as to the titles of both plaintiff’s and defendant’s properties originating from a common author, finds ample support in the record. The second and third propositions, however, as to defendant having the more ancient title and that such includes the area in dispute, we find these contentions are not only not supported by the record, but are disproved thereby. The whole of the property was mortgaged by one C. P. Couvillion to the Federal Land Bank of New Orleans on November 25, 1921. The mortgagor defaulted and a foreclosure followed, wherein the mortgagee acquired title to the property by virtue of a sheriff’s sale on April 25, 1931, as shown by a deed dated April 29, 1931. Subsequently, the purchaser sold the property on July 27, 1931, to one Fred J. Cliff, the credit portion of the purchase price of which being secured by a vendor’s lien retained by the vendor and a special mortgage granted by the vendee. Again this mortgagor defaulted and a second foreclosure followed, whereby the bank again acquired title by deed of December 12, 1934. Plaintiff then acquired from the bank the property now owned by her under a deed dated February 2, 1935. The property owned by defendant was sold October 29, 1925, by C. P. Couvillion to Leon Couvillion, who, in turn, on November 12, 1937, sold the same to defendant. Therefore, it is seen that the chain of title through which plaintiff and defendant claim ownership emanated from a common author, and that the chain of title through which plaintiff claims is the most ancient in origin. Therefore, pursuant to LSA-C.C. article 847> which reads as follows:

“If the parties claim under simple acts of sale or other acts which can transfer property, without being supported by any anterior concessions, and if they, or the persons from whom they acquired their estates, have acquired them from one common proprietor, the preference shall be given to him whose title is of the most ancient date, unless an adverse possession, for a time sufficient to establish prescription, has produced a difference in the situation of the parties,”

plaintiff, and not defendant, has the superior title and the limits in the calls of her title should be recognized as superior to and outranking that of the defendant, even should it have been established that the deeds or titles overlapped. Dupont v. Percy, La.App.1946, 28 So.2d 359; Hughes v. Palmer, La.App.1950, 47 So.2d 483; Flanagan v. Elder, La.App.1956, 90 So.2d 540. In passing, it may be noted that it has not been pointed out there is any conflict in the descriptions of the properties in the two titles.

It is well established where there is a clash of boundaries in two deeds or in two chains of title from the same grantor, the title of the grantee in the first deed executed is, to the extent of a conflict, superior. Lacour v. Watson, 1857, 12 La.Ann. 214; Porche v. Lang, 1861, 16 La.Ann. 312; Keller v. Shelmire, 1890, 42 La.Ann. 323, 7 So. 587; Bankston v. Gill, 1923, 153 La. 234, 95 So. 701. Therefore, plaintiff should he recognized as the owner of the property as described in her title as being the more ancient and emanating from a common author.

Lastly, for consideration is defendant’s plea of acquisitive prescription of ten years under the provisions of LSA-C.C. articles 3458 and 3478. The former article defines prescription by which the ownership of property is acquired, as a right by which a mere possessor acquires the ownership of a thing which he possesses by the continuance of his possession during the time fixed by law. The second of these articles provides: “He who acquires an immovable in good faith and by just title prescribes for it in ten years.” This plea of prescription is, therefore, predicated upon two propositions: (1) that defendant’s title encompasses the area in dispute and that defendant acquired the same in good faith and by just title; and (2) that he has had the requisite possession for the prescribed period of time. These propositions under the established facts in the record, are untenable for these reasons: (1) defendant’s deed recites that his property is bounded on the west by the property of the plaintiff; and (2) no proof whatever is contained in the record showing that defendant has been in possession of the property in dispute for the required period of time, or even for any period of time, or that he acquired in good faith. The plea was, therefore, improperly sustained.

For the reasons herein assigned, the conclusion necessarily follows that the survey should be approved and homologated and the boundary between plaintiff’s and defendant’s properties should be fixed in accordance therewith.

Accordingly, the judgment appealed is annulled, avoided, reversed and set aside, and it is now Ordered, Adjudged and Decreed that defendant’s plea of ten years acquisitive prescription should be and it is hereby, overruled.

It is further Ordered, Adjudged and Decreed that the survey made by Blanchard J. Marchand, surveyor, and the procés verbal and plat prepared pursuant thereto, be and the same are hereby approved, homologated and the judgment of this court, and accordingly the boundary between plaintiff’s property described as follows:

“94.70 acres of land, more or less, situated in the Eastern portion of Section 43, Township 2 North, Range 4 East, and bounded now or formerly as follows: North by lands of A. R. DeNux, Sidney Dupuy and Mrs. C. A. Riddle; on the East by Sidney Dupuy, Evilina Nash and Abel A. Mayeaux; on the South by R. O. Young and on the West by A. R. DeNux and Oscar Mayeaux.
“The above described property having been acquired by petitioner from the Federal Land Bank of New Orleans on the 12th day of February, 1935, by deed recorded in Conveyance Book A-65, at page 139 of the Avoyelles Records, and is more fully set forth on plat of E. B. Messick, Surveyor, dated July 26, 1930, photostatic copy of which is hereto attached and made part hereof”,

and defendant’s property, described as follows:

“A certain tract or parcel of land, with the buildings and improvements thereon, situated, lying and being about two miles north of the Town of Marksville, on the east side of the Marksville-Moncla paved highway, in the Second ward of Avoyelles Parish, Louisiana, same containing four (4) acres, more or less, same being bounded on the north by Public road leading from Marksville-Moncla paved highway to the Barbin’s land graveled road, on the south by Dr. R. O. Young, on the east by A. J. Normand, and on the west by Una Laborde, and being a portion of a larger tract of land acquired by present vendor from C. P. Couvillion on October 24th, 1925, sale of which is recorded in Conveyance Book A-36 page 585”,

be and the same is hereby determined, fixed and decreed to coincide with and be co-existent with the East boundary of Section 43, Township 2 North, Range 4 East, as per plat and survey of Blanchard J. Marchand, surveyor, so far as said properties are contiguous and particularly beginning at the Northeast corner of the aforesaid section as designated in said plat and survey, as well as on that plat and survey of E. B. Messick, dated July 26, 1930, and run along the aforesaid East boundary of said Section 43, South 39 degrees and 18 minutes East to a point on said East boundary 204.3 feet from the Southeast corner of the aforesaid Section 43 and thence along said section line South 39 degrees 18 minutes East the aforesaid distance of 204.3 feet to the Southeast corner of said section.

It is further Ordered, Adjudged and Decreed that defendant-appellee, Abel A. Mayeux, pay all costs of this suit, including the cost of this appeal.

Reversed and rendered.


text:
    AUDUBON INSURANCE COMPANY et al., Plaintiffs-Appellants, v. Ervin LAVALLIS, Defendant-Appellee.
    No. 8636.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    George J. Ginsberg, Donald M. Garrett, Alexandria, for appellant.
    Lloyd G. Teekel, William Ray Bradford, Alexandria, for appellee.
   GLADNEY, Judge.

The Audubon Insurance Company, insurer of a Pontiac automobile owned by Luke Rachal, paid to the insured all except Fifty ($50.00) Dollars of the damages sustained by Rachal’s car as a result of an in-tersectional collision which occurred in the City of Alexandria, Louisiana, on August 6, 1955, and on February 6, 1956, this suit was instituted by the company and Rachal against Ervin Lavallis. Certain acts of negligence were attributed to Clyde Lavallis, son of the defendant, who was driving the defendant’s pickup truck at the time it collided with the automobile owned by Luke Rachal. Respondent denied his son was at fault in the collision and reconvened for stated damages. However, during the trial defendant abandoned his counter demand. Judgment was rendered by the trial coitrt denying plaintiff’s claim for damages and also it rejected defendant’s claim in recon-vention. From the judgment so rendered, plaintiff has appealed.

At approximately 1:15 o’clock on the day of the accident with weather conditions normal and with pavement dry, Rosa Mae Rachal was driving the insured automobile east on Turner Street, and while proceeding through the intersection of Turner and Overton Streets her automobile was struck by a Chevrolet pickup truck being driven by Clyde Lavallis. Overton Street is by city ordinance designated a favored street with right-of-way accorded it over Turner Street.

The evidence discloses the truck was traveling northerly along Overton Street. The southeast corner of the intersection contained a hedge which somewhat obscured the vision of the two approaching motorists. It also appears that an automobile was parked on the west side of Overton Street' and just south of Turner Street.

Rosa Mae Rachal, who was accompanied by her three small children, testified she came to a stop at the intersection and observing no approaching vehicle, proceeded through the intersection to a point where her front wheels were across the mid line of Overton Street when the impact occurred, her car being struck on the left side.

Clyde Lavallis testified he was traveling some twenty to twenty-five miles per hour under the maximum prescribed by the ordinance; that he observed the Pontiac automobile as it entered the intersection, at which moment he was about twenty feet from the point of impact and immediately undertook to apply his brakes but was unable to do so prior to the collision. The testimony of other witnesses failed to establish negligence on the part of Clyde Lavallis and adds nothing of importance to the testimony of the two drivers.

There is no special plea of contributory negligence and for this reason we cannot consider whether or not plaintiff was negligent. Meyer v. Rein, 1944, La.App., 18 So.2d 69; Baden v. Globe Indemnity Company, 1932, La.App., 145 So. 53-57; Francois v. Washington National Insurance Company, 1933, La.App., 146 So. 784; Nezat v. General Outdoor Advertising Company, 1946, La.App., 24 So.2d 482; Lobell for Use and Benefit of Hardware Mut. Cas. Co. v. Neal, 1950, La.App., 48 So.2d 797; James v. Employers Mutual Liability Insurance Company of Wisconsin, 1954, La.App., 75 So.2d 888; Service Fire Insurance Company of New York v. Suezy, 1954, La.App., 77 So.2d 110. The sole question for our resolution is whether or not Clyde Lavallis was in any wise negligent.

Plaintiff charges the driver of defendant’s truck with negligence in the following particulars:

(1) Driving in excess of the speed limit; (2) failing to accord the right-of-way to the Pontiac automobile after it had preempted the intersection; (3) failing to keep his vehicle under control; (4) failing to keep a proper lookout for other vehicles; and (5) failing to apply, his brakes or avoid the collision after he saw or should have seen the Pontiac automobile proceeding across the street.

An examination of the testimony and evidence as found in the record does not disclose substantial evidence to support the charges ascribed in (1), (3) and (5) as above enumerated. The evidence clearly shows that Lavallis was not exceeding the speed limit; that he promptly attempted to apply his brakes and that he saw Rosa Mae Rachal as she entered the intersection. This leaves for our sole consideration the question of whether or not the Pontiac automobile preempted the intersection and, therefore it was incumbent upon Qyde Lavallis to yield his right-of-way and permit the safe passage of the automobile ahead of him.

As we appreciate the evidence, Lavallis had but little opportunity to act when he first observed the approach of Rachal’s automobile and he immediately took reasonable precaution to bring his vehicle under control for the purpose of avoiding the accident. His vision to the west along Turner Street was obscured by the hedge and parked automobile, but these factors are of no legal import since the evidence discloses that Lavallis was proceeding along a right-of-way thoroughfare at a lawful and reasonable rate of speed. The facts show the Rachal car was struck on the side and after it had proceeded to a point about the center of the intersection with the front of the car perhaps slightly north of the center of Overton Street. Was it the duty of Lavallis to yield his right of way? We find under the stated facts the law does not charge him with that responsibility, nor did he have the opportunity to avoid the collision after timely discovering the presence of the Rachal vehicle.

It was recently stated by this court in the case of Harris v. Travelers Indemnity Company of Hartford, Connecticut, 1954, La. App., 70 So.2d 235, 237:

“Under the well-established interpretation with reference to the conflict of rights of automobile vehicle drivers, it is essential to again determine and apply the legal definition of preemption. Notwithstanding the fact that there are some pronouncements in some cases in the jurisprudence of our state which would appear to define preemption as dependent upon a mere showing of first entrance into an intersection, we think by far the better rule, and one which is now completely accepted, clearly requires the interpretation of preemption to be the entrance of an intersection with the normal and reasonable opportunity and expectation of clearing such intersection without obstruction to the crossing thereof by other vehicles. Butler v. O’Neal, La.App., 26 So.2d 753; Aucoin v. Houston Fire & Casualty Co., La.App., 44 So.2d 127; Hooper v. Toye Bros. Yellow Cab Company, La.App., 50 So.2d 829.”

The evidence, we think discloses Rosa Mae Rachal did not preempt' the intersection, for at the time she entered Overton Street her vehicle was in imminent danger of being struck by the Lavallis truck which was too close and being driven in a lawful manner. Our conclusion is that plaintiff has failed to establish any negligence on the part of Clyde Lavallis. It follows from our findings the judgment from which appealed should be and is hereby affirmed at appellant’s costs.


author: ELLIS, Judge. PER CURIAM.

text:
    The LUMBERMENS MUTUAL INS. CO. v. GENERAL INSURANCE CORPORATION and Everett Sidney Lyons.
    No. 4429.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.
    Patín & Patin, Lake Charles, for appellant.
    Vernon J. Jeansonne, Lake Arthur, Davidson, Meaux, Onebane & Nehrbass, Lafayette, for appellees.
   ELLIS, Judge.

The plaintiff, The Lumbermens Mutual Insurance Company, instituted this action to recover damages of $513.06 from the defendant, Everett Sidney Lyons and his insurer, General Insurance Corporation, incurred in a collision between a Pontiac automobile owned and driven by plaintiff’s assured, J. W. Dubose, and the defendant’s Chevrolet pick-up truck. This accident occurred at about 3:00 P.M. on July 18, 1955 within the city limits of Jennings, Louisiana. On agreement of counsel, General Insurance Corporation was dismissed from the suit upon proof that it was not a party at interest.

Judgment was rendered for the defendant in the trial court, rejecting plaintiff’s demands on the basis that although Lyons was negligent, J. W. Dubose was contributorily negligent. Plaintiff has perfected an appeal from the unfavorable judgment.

The facts as set forth by the trial judge are substantially correct and we quote:

“* * * The accident happened on East Highway 90 at a point approximately a mile inside the city limits but yet at a point where traffic does not ordinarily slow down to the 25 Mph speed limit set for motor vehicles and more particularly at a point in front of the G. I. Golden weighing scale on East Highway 90.
“The defendant had been traveling in an eastward direction and had stopped or had slowed so as to make a left turn into the G. I. Golden driveway. The plaintiff was approaching down the same highway from the opposite direction headed in a westwardly direction at a rate of speed between 30 and 35 miles per hour. When the plaintiff was approximately 50 feet from the defendant’s vehicle defendant commenced his left turn and actually entered plaintiffs lane of traffic to the extent of one or two feet at which point the entire left side of plaintiff’s vehicle was struck by the left front of defendant’s pick up truck. Plaintiff did not apply his brakes because he thought the road was too slippery. Defendant never did see the plaintiff’s vehicle until the accident occurred.”
sjs ‡ ^ ‡
“The evidence showed that the paved road was 22 feet wide; and that there was a shoulder at least 7 feet wide on the plaintiff’s side of the road.”

The record also reveals that the highway was blacktopped at the point of the collision; that the shoulders were soft as a result of recent construction on the highway in the vicinity, and the surface of the highway was wet as a result of the inclement weather prevailing there at that time. Also defendant testified that he made signal for left-hand turn prior to the collision and this testimony was corroborated.

The trial judge made the following observation in rendering judgment:

“Obviously defendant was negligent under these findings of fact. The question is — Was the plaintiff guilty of contributory negligence? This Court concluded that he was contributorily negligent in the following ways: 1. In exceeding the speed limit by some 5 to 10 miles per hour. 2. By failing to apply brakes or to slow down when he noticed the defendant crossing into his lane. 3. By not pulling to the right so that his vehicle would not be struck by the defendant.”

Counsel for defendant on appeal urges four defenses: first, that Dubose’ negligence was the proximate cause of the accident; second, he contends that if Lyons was negligent, Dubose’ contributory negligence would bar his recovery; third, that plaintiff’s assured had the last clear chance; and finally, defendant claims that the proof of damages was not proper.

Counsel for the defendant made the following arguments in support of his contention that the negligence of plaintiff’s assured was the proximate cause of the collision :

“It is submitted that the following acts of commission or omission of Mr. Dubose were the proximate cause of the accident in question:
“A. Mr. Dubose was travelling too close to the center line of the highway prior to the accident in question for no lawful reason, especially since the highway between him and the defendant was entirely unobstructed, and especially since the shoulder to Mr. Du-bose’s right was entirely unobstructed and of sufficient width to admit the parking of a motor vehicle.
“B. Mr. Dubose knew that it had showered on the afternoon in question and that as a result the highway was both damp and slippery, and knowing this, upon entering the City Limits of Jennings, La., he should have anticipated heavier traffic, and he should have brought his vehicle under control accordingly.
“C. Mr. Dubose saw, or should have seen, defendant from a safe distance slowing down contemplating a left hand turn, and so seeing the defendant, he should have reduced his speed from ‘35 miles per hour or less’ to at least 25 miles per hour, and further, he should have veered to his right at least two (2) feet.
“D. The circumstances dictated that he do just that and even more: — he could have veered to his right 4 or 5 feet and still have remained on the highway — he could have safely used the shoulder if necessary.
“E. Having failed to so act under the circumstances, Mr. Dubose’s negligence was the proximate cause of the accident in question.”

The first contention set forth above is not persuasive. Mr. Dubose had a perfect right, as regards oncoming traffic to travel anywhere within his lane, as long as no part of his automobile extended over the center line. It appears from the facts that Mr. Dubose was travelling within his lane at the time of the accident. The width of the shoulder is immaterial as regards plaintiff’s right to drive in his own lane. Dubose had the right to expect Lyons to honor his right of way and to wait for him to pass before actually negotiating the indicated left turn. When Lyons did turn a scant 50 feet in front of Dubose there was very little which could be done to avert the ensuing collision.

The third point urged in support of the defense that Mr. Dubose’ acts of negligence constituted the proximate cause of the accident is not tenable, upon close examination. The Lawyer’s Motor Vehicle Speed Chart indicates that had Dubose slowed to the speed of 25 mph upon entering the city limits he would still have travelled 36.7 feet before he reacted to the sudden danger and put on his brakes. After braking his automobile at that speed he would have continued 50.1 feet before bringing his car to a stop. In addition, the speed chart is based upon normal conditions and in this case the road was wet and slippery. Applying the speed chart to the facts in this case it is evident that Lyons created an emergency by crossing into Dubose’ lane when Dubose was only 50 feet away. The fact that Du-bose was exceeding the speed limit prior to the accident is therefore insignificant, for it had no causal connection with the accident.

Answering defendant’s fourth contention, since the blaclctopped highway at the point of the collision was set, it is very likely that the plaintiff would have created a more dangerous situation by veering sharply in an effort to avoid the collision. The law is clear that if one is confronted with a sudden emergency which is not in any way brought about by his negligence, he is not liable even if it subsequently appears that the accident could have been avoided if he had acted differently under the circumstances.

The trial court gave judgment for the defendant, finding the plaintiff contributorily negligent in that he was exceeding the speed limit, he failed to apply his brakes or to slow down when he noticed defendant crossing into his lane, and he did not pull to the right so as to avoid the collision. The application of the Lawyer’s Motor Vehicle Speed Chart to the facts in the instant case indicate that plaintiff did not have time to take any effective action as the defendant crossed into his lane when he was only 50 feet distant. The fact that plaintiff was exceeding the speed limit some five to ten miles per hour was not a proximate or contributing cause of the accident. Had the plaintiff been travelling 25 miles per hour the results would have been the same. The defendant created an emergency. The road was wet and slippery and the shoulder, though wide, was quite soft. Both of these factors would or should have deterred the plaintiff from either slamming on his brakes or veering sharply to his right to avert the collision, even had he had time to act.

The defendants’ counsel urged that the doctrine of last clear chance was applicable and should bar plaintiff’s recovery. The record reveals that the defendant did not see the plaintiff until the time of the accident. The defendant testified that he had stopped his car and was checking the traffic in the rear prior to completing the left turn across the highway. However, it is unlikely that anyone would pull two feet over the center line and then observe the traffic in the rear. This Court is satisfied that the defendant’s car was in motion and in Dubose’ lane at the time the accident occurred and that he entered the lane when Dubose was 50 feet away. The defendant unwittingly created an emergency and the plaintiff did not have an opportunity to avoid the collision. Therefore, the doctrine of last clear chance is found to be inapplicable in this instance.

Plaintiff’s assured, Dubose, testified to the effect that the damages sustained by him in the collision amounted to $563.06. Dubose testified that he paid the $50 deductible and plaintiff paid the balance. This testimony was uncontradicted and was not objected to on trial. It was also corroborated by the notarized subrogation agreement which was introduced in the record.

This court feels that the plaintiff has sustained the burden of proving his damages. It has introduced competent evidence of the extent of the damages. Possibly this evidence given was not the best evidence, but it was introduced without objection.

The case of Le Blanc v. Jordy, La.App., 10 So.2d 64, 65, is cited by the defendants’ counsel in support of his defense that the plaintiff has not proved his damages. However, in that case there were no repairs made and no evidence was introduced to show the cost of making such repairs. This is clearly not the situation in the instant case.

In the case of Scurto v. Le Blanc, 191 La. 136, 184 So. 567 which was also cited in support of the defense, the court found that no damages were proved, and the plaintiff asked for “such damages in reconvention as the Court in the exercise of a wise judicial discretion may award.” Where a definite amount is prayed for and competent evidence is introduced in support of the claim the defendant cannot attack competent corroborative evidence on appeal which he allowed to be introduced into the record without objection during the trial on the merits.

We are of the opinion that the judgment of the District Court should be and is hereby reversed insofar as the plaintiff, Lumber-mens Mutual Insurance Company, is concerned, and affirmed as to Everett Sidney Lyons, granting a judgment of $513.06 to-the plaintiff.

It is so ordered.

On Application for Rehearing.

PER CURIAM.

Counsel for defendant-appellee earnestly insists that the present case is governed' by Manley v. Hammons, La.App. 2 Cir., 20 So.2d 817. The cited case, where the oncoming motorist entered the opposing lane some 300'' distant from the other vehicle, is distinguished from the present case, where the oncoming motorist entered the opposing lane upon which plaintiff’s-driver was proceeding in the latter’s immediate path (just 50' therefrom, or — at 24 mph, i.e., 36.5' — D/á seconds), creating a sudden emergency by this negligent act.

In the Manley case it was specifically held that there was sufficient time and opportunity at the speeds of the vehicles-concerned to observe the oncoming driver’s continued approach on the wrong side of the road, so that the other driver defaulted in the “further obligation” imposed by the law “that the driver who is proceeding in conformity with the law of the road must take additional precautions if and when he observes, or could observe, that the driver of the approaching vehicle either does not, or cannot, clear the road,” 20 So.2d 819. This is not the present situation.

It has also been called to our attention that our decree affirming the judgment of the lower court as to Everett Sidney Lyons,. the defendant-appellee, may be considered ambiguous. By this, we affirmed the District Court’s judgment insofar as it held defendant-appellee’s negligence a proximate cause of the accident.

Rehearing denied.


author: TATE, Judge. PER CURIAM.

text:
    Winfred LINDSEY et al., Plaintiffs-Appellees, v. W. H. HOLLAND et al., Defendants-Appellants.
    No. 4375.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 28, 1957.
    Ben N. Tucker, Reid & Reid, Arthur W. Macy, Hammond, for appellants.
    Mary Purser, Amite, N. Cleburn Dalton, Roger Fritchie, Baton Rouge, for appel-lees.
   TATE, Judge.

This is a suit for an injunction restraining the defendants, who claim to be the Mayor and four Aldermen of the town of Greensburg, from holding an election. The District Court rendered judgment in favor of petitioners, from which defendants appeal.

The facts show that between 1947 and 1952 the defendants were variously commissioned as Mayor and Aldermen of the town of Greensburg by the incumbent Governors, as vacancies arose. In August 1956, the then incumbent Governor issued commissions replacing all but one of these holdover appointees. It appears that traditionally elections have not been held to select the town officials of Greensburg, who have always held office by virtue of Governors’ appointments.

Greensburg was created by special Act 232 of the Legislature of 1860, which Act was amended by Act 103 of 1869 to provide, inter alia, Section 2:

“That the term of office of the Mayor and Board of Aldermen shall expire on the first Monday in November of each year, when a new election for said officers shall be held; provided, that on the failure of the town authorities to hold said election from any cause, the said officers shall continue in office until their successors shall have been elected or appointed, and it shall be the duty of said Mayor and Aldermen thus holding over to order said election as soon after the first Monday in November as is practicable.”

On August 21, 1956 the present defendants in their official capacities adopted a resolution calling for a general election on September 25, 1956 to elect a mayor and five aldermen for the town of Greensburg.

Subsequent to this, quo warranto proceedings by the duly commissioned officials against the old officials resulted in judgment on September 18, 1956 in favor of the newly commissioned officials, holding the latter (some of whom are among present plaintiffs) to be the legal officers of Greensburg by virtue of legal appointment, and holding the present defendants’ pretensions to retain municipal office to be without legal basis. From this judgment the defendants took a suspensive appeal to the Louisiana Supreme Court, which still pending appeal maintains them as the de facto town officials.

The present proceedings were filed on September 18, 1956 to enjoin the election called for September 25, 1956. On September 24, 1956, a permanent injunction was issued after trial prohibiting the holding of the election scheduled for the following day. Insofar as the appeal lies from said judgment enjoining the election • of September 25, 1956, which date is long past, it is dismissed for the matter is moot, and “in cases where no practical results can be obtained, this Court will not entertain the appeal (cases cited)”, City of Lake Charles v. Nope, La.App. 1 Cir., 92 So.2d 144 at page 145.

But in addition to the relief enjoining said election prayed for, the District Court additionally enjoined the defendants from holding an election “at any future date, until Docket #1892 of this Court is decided on appeal.” (Docket #1892 is the quo warranto proceedings.)

Fully appreciating the commendable attempted exercise of equitable powers by the able District Court to preserve the status quo pending final determination by the Supreme Court of the present defendants’ right to retain office despite their legal replacement by other officials, and to prevent any drastic change in the customary conditions of municipal government through the exercise of power by those held to be usurpers, we nevertheless are of the opinion that neither the District Court nor this Court has the power to restrain such future elections.

The Supreme Court through Mr. Justice McCaleb has recently summarized the applicable law in Bardwell v. East Baton Rouge Parish Council, 216 La. 537, 44 So.2d 107, at pages 109-110, 19 A.L.R.2d 514, to be as follows (omitting supporting citations):

“[T]wo established principles must be considered. They are the general rule that equity will not interfere with a municipal body in the exercise of powers of a legislative character, * * * and the doctrine that an injunction will not issue to prevent the holding of an election * * *.
“The above stated rules are not without exception. If the threatened action of a municipal council is in direct violation of a prohibitory law, equity will enjoin, even though no irreparable injury is shown * * * but this is the only instance that judicial intervention has been permitted in this State. * * * And, in cases involving the calling and holding of an election under certain conditions, a court of equity will restrain those ordering the election where the preliminary conditions necessary for the ■election call have not been fulfilled and the municipal body has either called or is threatening to call the election. * * * ”

Furthermore, it appears that under the statutory provision above quoted providing the charter for the government of Greensburg, the municipal officers — whether they be the legal officers duly appointed, or the de facto officers retaining governing powers under their expired commissions by virtue of a suspensive appeal— might be under the same duty to call an election, providing there was compliance with the formalities required by law. That is, insofar as the present proceedings are concerned, we are unable to say that the protection of plaintiffs’ legal rights requires the enjoining of future elections which, even if plaintiffs replaced the alleged usurpers, they themselves might be required to call. The rights of both the duly appointed officials and the usurpers are subordinate to the paramount right of the People to fill the offices through election as provided by the town charter.

This ruling is of course without prejudice to the right of any of the parties hereto to call any future election, or to oppose the calling of such future election for legal cause.

For the above and foregoing reasons, the judgment appealed from is amended by striking out the provision enjoining the defendants from holding or calling a municipal election “at any future date, until Docket #1892 of this Court is decided on appeal.” In all other respects the appeal is dismissed. Defendants to pay the cost of this appeal.

Judgment is amended in part; appeal dismissed in part.

On Application for Rehearing.

PER CURIAM.

Our original decree was not meant either to require or to disapprove of the calling of specific future elections in the future, and was without prejudice to the right of any party to propose or to oppose such specific future elections, for legal cause shown. Our decree simply struck out the blanket injunction against all future elections, as being unauthorized by law.

Rehearing denied.


author: McBRIDE, Judge.

text:
    George BENENATE v. Avis E. BROOKS, Paul F. Shorts, Clarence Eloise, Manufacturers Casualty Insurance Company, Indiana Lumberman’s Mutual Insurance Company, The Insurance Company of Texas.
    No. 20791.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.
    Rehearing Denied June 24, 1957.

      D. A. McGovern, III, New Orleans, for George Benenate, plaintiff-appellant.
    May & Carrere, New Orleans, for Travelers Ins. Co., intervenor-appellant.
    Porteous & Johnson, F. Carter Johnson, Jr., New Orleans, for Avis E. Brooks and. Manufacturers Cas. Ins. Co., defendants-ap-pellees.
    Adams & Reese, New Orleans, for Paul' F. Shorts and Indiana Lumbermens Mut.. Ins. Co., defendants-appellees.
    No appearance for Qarence Eloise and-Insurance Co. of Texas.
   McBRIDE, Judge.

This appeal involves a three-car automobile collision which occurred on February-' 5, 1954, at about 4:30 p. m., on the Airline Highway at a point on the south or New Orleans side of the Kenner Overpass.

The Airline Highway is a four-lane paved roadway, two lanes being used by vehicular traffic traveling in the direction of New Orleans and the other two lanes being used by traffic moving in the opposite direction or toward Baton Rouge. Clarence Eloise was driving his Pontiac automobile in the direction of New Orleans in the slow or outside lane of the highway at a speed of about 30 to 35 miles per hour. As Eloise came over the crest of the overpass, he observed an automobile ahead of him in the same traffic lane. This automobile, during the course of the trial of the case, was referred to as the “unknown car.” According to Eloise, the unknown car came to a sudden and unexpected stop when he was approximately 15 feet to its rear. He claims he immediately applied his brakes and made a swerving maneuver to his left so as to pass the unknown car, and his automobile was at a 45-degree angle when it was violently struck from the rear by a Buick automobile owned and driven by Avis Brooks. The impact of the Brooks automobile striking the rear of the Eloise car knocked the latter into the fast lane of traffic used by automobiles traveling in the direction of Baton Rouge, in which Paul F. Shorts was driving his Dodge automobile, with the result that Shorts’ automobile came into collision with the right front side of the Eloise car. This second •collision occurred almost simultaneously with the first.

George Benenate, the plaintiff, a guest passenger in the Eloise car, claims he suffered severe physical injuries as a result of the two collisions and by this suit he endeavors to recover therefor. He impleads as defendants, in solido, Clarence Eloise and his liability insurer, The Insurance Company of Texas, Paul F. Shorts and his liability insurer, Indiana Lumbermens -Mutual Insurance Company, and Avis E. Brooks and his liability insurer, Manufacturers ■Casualty Insurance Company. An intervention was filed by Foster Wheeler Corporation and The Travelers Insurance Company. The intervenors allege that the plaintiff, Benenate, at the time of the accident was an employee of Foster Wheeler Corporation, and that his injuries arose during the course and scope of his employment and, therefore, The Travelers Insurance Company, which is the workmen’s compensation insurance carrier of Foster Wheeler Corporation, paid Benenate workmen’s compensation benefits in the sum of $1,380 and aid his medical expenses in the sum of $1,668.87. The intervenors aver they are the legal subrogees of Benenate to the amount of such payments, and they pray for judgment against the defendants in solido therefor.

After a lengthy trial in the lower court, there was judgment in favor of The Travelers Insurance Company, as subrogee of plaintiff, for the sum of $527.50, against Clarence Eloise and his insurer, The Insurance Company of Texas, jointly and in solido. The suit and the intervention were dismissed as against the other defendants.

Benenate, Foster Wheeler Corporation, and The Travelers Insurance Company have appealed from the judgment. Eloise and his insurer, The Insurance Company of Texas, answered the appeal praying that the judgment against them in favor of The Travelers Insurance Company be reversed.

Subsequent to the filing of the appeal in this court, The Insurance Company of Texas was placed in the hands of John D. Wheeler, as receiver, by virtue of a judgment issued by the Ninety-eighth District Court of Travis County, Texas, on March 5, 1957, and ancillary receivership proceedings were instituted in the State of Louisiana by the Insurance Commissioner, and^ Rufus Hayes, Commissioner of Insurance, has been appointed ancillary receiver for the corporation. On proper motion John D. Wheeler, the receiver, was made a party defendant.

A few days before the date set for argument of the case in this court, the attorneys who had represented Clarence Eloise and The Insurance Company of Texas in the lower court withdrew from the case, and when the matter was called for argument and heard by us said defendants, Eloise and John D. Wheeler, receiver for The Insurance Company of Texas, were absent and unrepresented.

No useful purpose at all would be served by recounting the various charges of negligence plaintiff makes against the three defendant motorists, nor is it necessary to engage in a dissertation on the testimony of the various witnesses. Besides the evidence of Benenate, we have before us the testimony of Eloise, Shorts, and Brooks, and also that of three passengers who were riding in the Brooks car, and three passengers who were riding with Eloise when the accidents occurred.

Eloise’s fault is manifest. He was guilty of gross negligence in following the unknown car at a distance of only 15 feet at the admitted speed of 30 miles per hour. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and the condition of the highway. LSA-R.S. 32:234. Thus, a motorist following another automobile must have his car under control and must drive at such speed that he can stop in case of an emergency. Had Eloise not followed the unknown car at such a close distance, his ill-fated swerve to the left would not have been necessary.

We can perceive no negligence on the part of either Brooks or Shorts.

Brooks was driving toward New Orleans in the fast lane for traffic and came down the slope of the overpass slightly to the rear and to the left of the Eloise automobile, and at all times his automobile was occupying the fast lane and was never directly behind the Eloise vehicle. Eloise, due to the emergency created by his own negligence, suddenly swerved into the fast lane in order to avoid running into the unknown car, and in doing so caused his automobile to come directly into the path of the oncoming Brooks car making the accident unavoidable insofar as Brooks is concerned. Plaintiff’s counsel argues that Brooks was overtaking and was about to pass the Eloise car and was but 20 feet to its rear when, the Eloise car swerved into the fast lane. The contention is made that Brooks followed the Eloise car at an unsafe distance and did not give a horn signal of his intention to pass, and that Brooks further failed to apply his brakes in time to avoid the collision. The contention that there was an unsafe distance between the two vehicles, is without merit. The vehicles were not in the same lane and Brooks whose speed was greater than the speed at which Eloise was driving was entitled to travel in the fast lane. No reason has been assigned,, and we know#of none, why Brooks should have applied his brakes when he heard the squealing of Eloise’s brakes.

Brooks was 50 feet to the rear of Eloise’s car when he heard the brakes squealing, and he says he took his foot off his accelerator watching what was happening and then it was Eloise suddenly swerved from the slow lane into the fast lane 20 feet ahead of him and directly into his path. Some argument is made that Brooks was negligent because he failed to blow his horn as he approached the Eloise car, but the failure to give horn signal did not amount to negligence as we are unaware of any statute, highway regulation, or jurisprudence which specifically requires or holds that a motorist in the left or fast lane must give a horn signal to an automobile in the right or slow lane of the intention to pass. True, LSA-R.S. 32:233, subd. B provides that the driver of an overtaking vehicle shall give audible and sufficient warning of his intention before overtaking, passing or attempting to pass a vehicle proceeding in the same direction. But, it is quite clear that the Legislature in adopting said section of the statute had no intention to require that the driver of every vehicle should sound his horn whenever he intends to pass a vehicle which is in another lane or sufficiently far to the right as to permit a safe passage. All that the said section means is that when the overtaking vehicle attempts to pass a vehicle which is in its path, the overtaking driver should sound his horn in order to give the driver of the forward vehicle notice of the intended passage so that he can swerve right thus affording a path to the overtaking car. On two occasions we held this to be-the meaning and import of similar provisions contained in a traffic ordinance of the City of New Orleans, and we do not think that the rule should be any different with reference to LSA-R.S. 32:233, subd. B. See Cantrell v. H. G. Hill Stores, Inc., La.App., 193 So. 389; Martin v. Globe Indemnity Co., La.App., 64 So.2d 257.

We agree with what the Court of Appeal for the First Circuit said in Mooney v. American Automobile Insurance Co., 81 So.2d 625, 628:

“ * * * Furthermore, the main necessity for blowing .the horn is so that the car in front will give way, >ji ‡ »

The argument is advanced that Shorts, who approached from the opposite direction, was negligent in driving his vehicle in the left or fast lane and that if he had been driving in the right lane where it is said he should have been, his car would not have collided with the Eloise car. Shorts satisfactorily explained why he was traveling in the fast lane. He states that there was a car to his right. He resorted to his brakes immediately upon becoming cognizant of the danger, but his attempt to avoid the collision was ineffectual.

The final phase of this case is the question of the amount of the damages to be assessed.

At the outset the observation should be made that we are highly suspicious of the demands made by plaintiff as his claim is inflated beyond reason. He itemizes his damages as follows:

Pam and suffering on date of accident $ 10,000.00
Pain and suffering while hospitalized in V. A. Hospital for 35 days (February 5, 1954-March 13, 1954) 17,500.00
Pain and suffering while hospitalized in Hotel Dieu Hospital (April 18, 1954 to May 30, 1954— 42 days) 21,000.00
Hospital bill — Charity Hospital 27.50
Hospital bill — V. A. Hospital 997.32
Hospital bill — Hotel Dieu Hospital 717.50
Bill — Dr. E. F. Salerno 500.00
Loss of wages — February 5, 1954-August 5, 1954, 26 weeks at $128.00 per week 3,328.00
Loss of appellant’s ability to resume his trade of boilermaker and steeplejack in the future 50,000.00
Total $104,070.32

None of the many occupants of the three cars, save Benenate, claims to have sustained injuries as a result of the collision. Benenate declares he sustained serious injuries in the umbilical region of the body and that his difficulty stems from traumatic knuckling of the intestines with secondary inflammation. He also contends it was necessary to undergo surgical procedures to alleviate his condition.

The medical testimony shows that surgery was performed on April 24, 1954, and again on May 4, 1954. While Dr. Salerno testified that the surgery of April 24, 1954, was connected with the accident, he could not say that the accident caused the necessity for the second operation on May 4, 1954. The trial judge found as a fact that none of this surgery was rendered necessary by the accident and in that finding we must concur. The truth of the matter is that plaintiff had a pre-exist-ing physical condition which does not appear to have been aggravated to any extent by virtue of the accident of February 5, 1954, and we think, as did the trial court, that plaintiff suffered only shock and fright and that it was this that necessitated his going to Charity Hospital and Veterans Administration Hospital for treatment. For the shock and fright the trial judge thought an allowance of $500, plus Bene-nate’s Charity Hospital bill of $27.50, would be liberal and judgment was rendered therefor in favor of The Travelers Insurance Company as legal subrogee. We think the allowance was fair.

The Travelers Insurance Company as the legal subrogee of Benenate’s employer may maintain an action against the employee’s tort-feasor, causing the injuries, for which it paid the workmen’s compensation benefits, to recover the amount of such payment. LSA-R.S. 23 :- 1101, 23:1103, 23:1162. But the trial judge erred in awarding to the compensation insurer the $27.50, which represents medical expenses which Benenate himself expended. All that The Travelers Insurance Corn-pay can recover from the tort-feasor is the amount to which Benenate is entitled for his physical injuries and not for the amount which Benenate incidentally expended for the treatment of those injuries.

Counsel for The Travelers Insurance Company argue that the allowance of $500 for bodily injuries is inadequate and that the amount should be substantially increased. They maintain that The Travelers Insurance Company would not have paid the large amount for workmen’s compensation and medical expenses if there had not been a substantial exposure to liability under the compensation statute, and that such payments were made on the advice of its medical staff and on the advice of its attorneys. The insurance company might have acted on the advice of its physicians and attorneys, but in adjudicating the case it is our duty to act on the record before us, and doing so, our conclusion is that the aforesaid amount is a proper allowance for Benenate’s damages sustained in the accident.

Subsequent to the argument of this case, Rufus D. Hayes, Commissioner of Insurance of the State of Louisiana, in his capacity as ancillary receiver of The Insurance Company of Texas, appeared in the case by motion and suggested to the court that by judgment dated March 4, 1957, in the suit entitled: “Rufus D. Hayes-, Commissioner of Insurance, State of Louisiana v. ICT Insurance Company,” No. 59,-413 of the docket of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, The Insurance Company of Texas, its officers, agents, directors, stockholders, policyholders, employees, and creditors were enjoined from bringing or further prosecuting any action at law or in equity against said insurance company in the State of Louisiana. This injunction, of course, was issued to preserve the status-quo of the assets of said insurance company and all claims against it. In view of the restraining order, we are powerless to-adjudicate the plaintiff’s case as against, said insurer.

Therefore, for the reasons assigned, the-judgment is amended so as to reduce the amount due The Travelers Insurance Company to the sum of $500, with legal interest from judicial demand until paid, plus all-costs of the intervention, and the judgment is further amended so as to award plaintiff, George Benenate, the sum of $27.50, with legal interest from judicial demand until paid, and for costs of suit, the judgment to run against Clarence Eloise. And as thus amended and in all other respects the judgment is affirmed. Costs of appeal are to be paid by The Travelers Insurance Company.

Amended and affirmed.