author: TATE, Judge. ELLIS, Judge

text:
    Gustave E. GUIDRY, Jr., for himself individually and for and on behalf of minors, etc. v. Robert James CROWTHER et al.
    No. 4416.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28,1957.
    Writ of Certiorari Denied Oct. 8, 1957.

      Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defendant-appellant.
    A. Deutsche O’Neal, Houma, for plaintiff-appellee.
    Adams & Reese, New Orleans, Pugh, Lanier & Pugh, Thibodaux, for defendant-appellee.
   TATE, Judge.

At about l':00 P.M. on July 7, 1954, an Oldsmobile driven by Robert J. Crowther skidded into a Chevrolet driven by Gus-tave E. Guidry, Sr. Guidry and his wife, a front seat passenger, died as a result of injuries sustained in the accident; and Mrs. Crowther, a passenger in the car driven by her husband, was most seriously crippled. Two other passengers in the Guidry car suffered injuries of lesser severity.

In the five personal injury actions based upon this tragic accident, the substantial question is whether any negligence of Crowther constituted the sole or a concurrent proximate cause of the mishap; or whether, as the District Court held, the sole proximate cause of the accident was the negligence of Roy J. Hebert, driver of a station wagon following Guidry, in imprudently attempting to pass Guidry and pulling out into Crowther’s lane and in Crowther’s immediate path. It is conceded that no negligence on the part of Guidry contributed to the fatal incident.

The accident in question occurred on U. S. Highway 90 about 3miles west of Des Allemands in Lafourche Parish, The District Court aptly summarized its setting as follows:

“The testimony shows with unmistakable certainty that there were only three automobiles in the immediate vicinity of the accident at the time of its occurrence: (1) the Guidry Chevrolet travelling westerly in its own right lane (the south [north] lane of US 90) and driven by Guidry; (2) the Plymouth station wagon driven by Hebert in a westerly direction and approaching the Guidry car from the rear; (3) the Oldsmobile being driven by Crowther in an easterly direction. It is reasonably clear that the accident took place approximately at the foot of a long, gentle curve, that before the accident Guidry and Hebert were travelling westerly in the curve and Crowther was travelling easterly approaching the curve, and that at the point of impact Guidry was about to emerge frota the curve and Crowther was about to enter it. In the general area of the accident (that is, at the place of impact and for some distance in either direction therefrom) the highway consisted of an eighteen-foot slab of undulant asphalt with exceptionally narrow shoulders, not more than a foot or two in width near the pavement, that sloped sharply down to the prairie or marsh at the side. * * * At the time of the accident the asphalt was wet as a result of a heavy shower shortly before its occurrence.”

Guidry’s car, driven at a speed variously estimated as from 30 to 50 mph, was struck and severely damaged in its own lane by Crowther’s Oldsmobile. Crowther stated that his own vehicle had gone into a skid crossing the highway into Guidry’s lane when, at a speed of from 45-55 mph, he had immediately applied his brakes when the oncoming Hebert station wagon suddenly pulled into his path and alongside Guidry in a rash attempt to pass Guidry as these latter two vehicles were about to emerge from the slight curve.

The principle factual question of this appeal is whether the District Court was manifestly wrong in accepting the testimony of Mr. and Mrs. Crowther that Hebert impatiently pulled out into their path to pass the slower-moving Guidry and drew almost alongside Guidry when the Crowthers were just 150-200"' distant; rather than that of Hebert (corroborated in general by the two passengers in his station wagon) that the Hebert vehicle had nosed out when about 30O' behind Guidry and, seeing Crowther’s Oldsmobile approaching at a terrific speed from the opposite direction about 800-1200' distant, had slipped back, noticing as he did so that Crowther went into a skid because of slipping off onto the shoulder. There were no other living witnesses to the accident, the surviving Guidry passengers having observed nothing thereof.

We see no compelling reason to enter into a detailed analysis of the evidence in this bulky record, so ably and exhaustively analyzed by the, lengthy briefs furnished to us by opposing counsel. The trial court’s findings of fact will not be disturbed by a reviewing court unless manifestly erroneous, Jones v. Jones, 232 La. 102, 93 So.2d 917, especially when based upon an evaluation of the credibility of opposing witnesses, Fouquier v. Fouquier, 231 La. 430, 91 So.2d 591.

Counsel for appellants most ably argues that it is a mathematical and physical impossibility for the accident to have occurred as the District Court found, accepting the Crowthers’ testimony, if the Hebert station wagon (as testified by the occupants thereof) was able to draw to a stop 30-40 feet behind the Guidry-Crowther wreck. Accepting this premise, counsel is able to demonstrate that Hebert must have been a considerable distance behind Guidry at the time that Crowther went into his skid and, consequently, could not have drawn out into Crowther’s lane just 150-200' distant from him.

The fallacy of this well reasoned argument is that the only testimony as to this safe stop was given by the occupants of the station wagon. And the District Court specifically found, based on what it found to be deliberate and apparently well-planned variations from original statements given by them to their own insurer, that these three engineering employees were in concert deliberately trying to deceive the court by concocting a version of the accident which, mathematically, would exculpate Hebert, their driver. He found their testimony completely unworthy of belief. We, an appellant court unable to see and hear the witnesses as did the trier of fact, are unable to hold that this evaluation of credibility was manifestly wrong; and we ourselves note that, unlike those particular witnesses, Mr. and Mrs. Crowther consistently gave the same version of the accident — from the time the State police drove up a few minutes after the accident, with Mrs. Crowther mutilated and in agony, perhaps dying, Mrs. Guidry dead, and Mr. Guidry dying, right on up through the trial below.

We do not find too impressive efforts made by appellants to discredit Crowther’s testimony because, he initially reported to the police right at the time of the accident that it was a yellow Plymouth automobile which drew alongside the Guidry car (whereas in truth the Hebert vehicle was a green Plymouth station wagon), precipitating the accident. All parties agree that the only overtaking vehicle involved was the Hebert vehicle, and the precision of observation expected as to such relatively minor incidentals in the few split-seconds preceding a horrible tragedy seems to be unrealistic.

Corroborative of the testimony of the Crowthers that a vehicle drew out into their lane, immediately in their path, almost alongside the Guidry car, is the death bed declaration of Mr. Guidry, lying in the hospital, to a kinswoman, “If it wouldn’t have been for that station wagon and those three boys, it never would have happened.” (Tr-81.) No objection was made at the time this evidence was introduced.

Whether after the accident Hebert’s station wagon actually did stop to the rear of the wrecked cars — or whether, for instance, it had passed in its left lane the cars colliding in its right lane before stopping west of the accident — are unknown, the District Court having found to be absolutely unworthy of belief the testimony of the boys in the station wagon, who are the only witnesses able to testify as this vehicle’s actions, due to the preoccupation of the other participants in the accident with their own safety and that of their loved ones at the time. There is testimony in the record that Hebert subsequently told a girl friend that he had been involved in the wreck and his vehicle had run into and tapped the Guidry car, although Hebert subsequently told an investigating attorney he had just been “spoofing”. Nor, considering the possibilities indicated by the testimony and argument of a slower speed (30 mph) of Guidry as compared to Crowther (50 mph), a quicker reaction time of a passing driver (Hebert) more alert to the potential danger than one (Crowther) confronted with a sudden emergency, and/or a greater braking efficiency of the station wagon used by the surveying crew as compared with that of an ordinary passenger vehicle, etc., would a stop by the station wagon to the rear (east) of the wrecked cars necessarily indicate incorrect the Crowthers’ consistent version of the accident as caused by a vehicle drawing into their lane with the realistic intention of passing Guidry in their immediate path and when they were just a short distance away.

But we are not called upon to speculate as to what the station wagon actually did after the accident; suffice it to say that for the reasons indicated, we are unable to accept counsel’s argument that the testimony of the boys in the station wagon of their complete stop behind the wrecked cars affords a compelling reason to discard as manifestly erroneous the District Court’s factual determination of an attempted passing in Crowther’s immediate path.

Appellants’ second main line of attack in seeking to hold Crowther and his insurers at least concurrently negligent is the contention that Crowther’s speed, under the circumstances, contributed to the accident. Immediately before the accident, Crowther had slowed to a speed of 45-55 mph. U. S. Highway 90, where the accident occurred, was at the time a narrow (18') blacktop highway, with extremely narrow (F) shoulders, slick because of the preceding rain. Based on isolated quotes from the testimony, able counsel attempts to depict this main highway of the State as a thoroughly dangerous thoroughfare, rutted, broken up by potholes, etc. We agree, however, with the District Court that the testimony taken as a whole does not indicate this main highway to have been so primitive as to require a lesser speed than that permissible on other main highways of the State under, similar circumstances; although it was certainly not a first class travelling surface at the time due to its relative narrowness and slickness. See Soudelier v. Johnson, La.App 1 Cir., 95 So.2d 39. Defendants’ own witnesses uniformly described the speeds of the Hebert station wagon and the Guidry car at 40-50 mph as not unusual, and as prudent and safe under the circumstances; and we fail to see how Crowther’s slightly greater speed of 45-55 mph could be considered so excessive as depicted. (The District Court, accepting Mr. Crowther’s testimony, found Crowther’s speed at the time to be 50 mph.)

However, whether such speed be considered negligent or not, it was not a proximate cause of this accident, which occurred because Hebert pulled suddenly from his own lane into the oncoming Crowther’s so close in Crowther’s path as to negligently cause the sudden emergency as a result of which this accident occurred, Lanier v. Hartford Indemnity Co., 228 La. 736, 84 So.2d 173, Higginbotham v. Frazier, La.App. 1 Cir., 92 So.2d 89 (Cert, denied), Marler v. State, La.App. 2 Cir., 78 So.2d 26 (Cert, denied). There is a complete lack of any evidence that the application of brakes on a slick pavement asphalt at 50 mph rather than. at, say, 25 mph, would have produced any different consequences. A driver is not required to maintain such speed and control as to be able to come to a complete stop when an unexpected and not reasonably to be expected obstacle blocking his lane is thrust suddenly into his immediate path. See Marler case, 78 So.2d 39, Syllabi 8, 9.

Cases such as Geoghegan v. Greyhound Corporation, 226 La. 405, 76 So.2d 412, relied upon by defendants, concern instances where a driver was unable because of his speed, excessive under the circumstances, to avoid hitting objects reasonably to be anticipated in his path; the speed therefore being a proximate cause of the accident. (The Geoghegan case specifically notes that the cows in question “did not suddenly dart in front of a bus”, 76 So.2d 413; if they had, any alleged excessive speed would not have been a proximate cause of the accident. Cf., Gautreaux v. Orgeron, La.App. 1 Cir., 84 So.2d 632.)

Nor, as urged in reliance upon such cases as Chouest v. Remont, La.App. 1 Cir., 81 So.2d 568, would a negligent speed by Crowther necessarily bar him from the exculpation of the sudden emergency doc trine; for to bar such exculpation, the negligence in question must have “contributed to the creation of the emergency”, 81 So.2d 571. Whether Crowther was going 50 mph or 25 mph, under the facts of this case, the sudden emergency was negligently created by Hebert when the latter pulled out into the latter’s oncoming path so short a distance away from him.

Quantum.

The present suit was brought by or on behalf of the thirteen surviving children of Mr. and Mrs. Gustave Guidry, Sr. The District Court awarded (1) $15,000 to each of the seven minor children for the damages sustained individually by each child for the sudden death of both their parents; (2) $3,000 for Mr. Guidry’s own pain and suffering, which under LSA-Civil Code Article 2315 survived in favor of his minor children only; and (3) $1,249.50 special damages, for the destroyed automobile and Mr. Guidry’s hospital bill. Judgment was rendered in favor of each of the seven children who were unmarried minors at the time of their parents’ death in the amount of $15,525.46 each; and in favor of each of the six major children in the amount of $96.89 each, being Viz of the $1,249.50 special damages.

The special damages are not disputed. Relying upon Keith v. Royal Indemnity, La.App. 2 Cir., 90 So.2d 534, 539, the District Court held that a claim for property damage survived in favor of the decedents’ estate, rather than in favor of the specified beneficiaries under Article 2315, LSA-C.C. (which excludes major children when there is a surviving spouse or minor children). However, this court has held that LSA-Civil Code Article 2315 applies even as to such items of damage. Young v. McCullium, La.App. 1 Cir., 74 So.2d 339, cert, denied. Therefore the award in favor of the major children for these items must he disallowed. No answer to the appeal or appeal as to quantum having been entered on behalf of the minors, we are unable to increase their award to allow them recovery of these proven damages.

The award of $3,000 for Mr. Gui-dry’s personal injuries, including a crushed chest, several fractured ribs, and a collapsed lung, and three days suffering in the hospital prior to his death, conscious but under sedatives, does not appear to be manifestly excessive and will not be disturbed.

At the time of their deaths, Mr. Guidry was about 53 years of age, his wife about 46 years of age. Mr. Guidry was in good health, a fisher and trapper (earning $275 to $300 per month during the fishing season). Mrs. Guidry was about 46 years of age and was under medical treatment for carcinoma of the intestine at the time of the tragic accident. They had been married approximately 32 years at the time of their deaths.

The surviving unmarried minor children of the marriage were, with their ages at the time of the accident: Virgie, 20; Nancy, 18; Eulice, 11; Glorine, 10; Gloria, 8; Susie, 5; and James, 3. Virgie married sometime subsequent to the death of their parents. Their oldest brother, Gustave E. Guidry, Jr., qualified as their legal tutor.

The District Court in the following eloquent words described his award of $15,000 to each of the minor children for the death of both of their parents:

“No greater tragedy could befall the surviving children of Mr. and Mrs. Gustave E. Guidry than the instant death of their mother and the indescribable anguish visited upon them by the impending death of their father for four days. If Descartes could have evolved out of his mathematical philosophy a formula to calculate and measure the pangs of grief suffered, it would necessarily have been one of multiplication. The death of one parent to those with strong family ties, as was the case here, is itself an immeasurable loss. But when a family is shattered by the loss of both parents, and a happy home that is the birthright of every child is obliterated as thoroughly and effectively as though from the impact of an atom bomb, then there is taken from the lives of the children the love and affection for which every human being yearns and the tender care and guidance which builds in youth the character of a lifetime. And no less important are the recollections of a happy childhood, and the reassembly from time to time of the members of the family with their, own children at the family home, which even after marriage remains the center, the very capital, of family life. These precious things of illimitable value the Guidry children shall never have, and there shall ever remain a void that will never be filled. No compensation is great enough to repay the loss.
* * * * * *
“Now as important as is the father to the maintenance and supervision of his family, his death can hardly have the same impact as that of the mother. There can be no doubt that the mother is the heart and core of the family. She supplies every need, nurses every wound, consoles every care, and bestows every affection every hour of every day for her children, things that a father cannot do because of his absence in search of a livelihood and things that, because of our very nature he could not offer if he were constantly present. The experiences of
life disclose that it is generally loss of the mother, even when she is advanced in years and her children are self-sufficient, that is the source of the most profound grief. Her death, it seems to us, is the greater loss. It is our opinion that there should be judgment in favor of each of seven minors for the death of both parents in the sum of $15,000.00 as prayed for. * * *”

We think this award to be in line with the following cases: Stansbury v. Mayor, etc., 228 La. 880, 84 So.2d 445; Keith v. Royal Indemnity Co., La.App. 2 Cir., 90 So.2d 534; and Bengston v. Travelers Ind. Co., D.C.W.D.La., 132 F.Supp. 512.

For the above and foregoing reasons, the judgment is affirmed insofar as in favor of the seven children who were unmarried minors at the time of the death of their parents; but is amended to reverse the award of $96.88 each to the major children at the time of the death, namely, Gustave E. Guidry, Jr., Clodia Guidry Gaspard, Pearline Guidry Bruce, Percy Guidry, Dudley Guidry and Joyce Guidry Gaspard. The judgment below is affirmed in all other respects.

Amended; and as amended, affirmed.

ELLIS, Judge

(dissenting).

In my opinion it is important at the outset to have a mental picture of the situation with regard to the three automobiles allegedly involved in the collision between two of them. On July 7, 1954, Robert James Crowther (hereinafter referred to as Crowther or Crowther automobile) with his wife as a guest passenger were on their way to New Orleans, traveling on U. S. Highway 90, and at the same time and just immediately prior to the collision Gustave E. Guidry, Sr. (hereinafter referred to as Guidry or Guidry automobile) was traveling west approaching the Crow-ther automobile. In the Guidry car were his wife in the front seat, Oliviera, Jr. and Matherne, two young men as guest passengers on the rear seat. Traveling to the rear of and in the same direction as the Guidry car was a Plymouth station wagon being driven by Roy J. Hebert, an employee of C. H. Fenstermaker, and in the Hebert station wagon as a passenger on the front seat was a fellow employee, Ansley, and on the rear seat another fellow employee, Myers, seated behind the driver Hebert. Thus we see that we have three automobiles, the Crowther automobile traveling generally in an easterly direction, being met by the Guidry car which was in turn followed by the Hebert station wagon traveling in a generally westerly direction. Crowther contends that the Hebert station wagon made an attempt to pass the Guidry car but pulled back and then immediately came out again in order to pass and he, believing that a head-on collision was inevitable, in other words, contending that by this maneuver Hebert created an emergency, he lightly tapped his brakes, went into a skid moving diagonally in sidewise manner, blocking both lanes of travel up to the moment of impact with the Guidry automobile.

The testimony and the incontravertible physical facts will show that immediately after this accident the Hebert station wagon which is supposed to have created the emergency came to a normal and successful stop in its own proper westbound lane of travel, 30 feet from the wrecked Guidry automobile.

It is my opinion and I will try to support it with the testimony and reasons hereinafter given that the Crowther automobile was solely responsible for this collision. All Crowther had to do was to continue in his own lane of travel, and even if he continued at the estimated speed he said he was going, 50 to 55 miles per hour, and which I think was 60 or more, he would not have collided with any automobile. The Hebert' station wagon is bound to have been a sufficient distance when it pulled out to see if it could pass, or, if you want to put it, in an attempt to pass, for it not to constitute any emergency unless Hebert actually continued in his attempt to pass, which he did not do when he saw the Crowther automobile and at almost the same time saw it begin to skid down the highway, for he pulled back into his lane of travel behind the Guidry car, safely applied his brakes and came to a stop in his own lane of travel.

There is no question of any negligence on the part of Guidry. He was where he belonged at all times.

Under the well settled general facts which I have above enumerated the law is also well settled. Only recently in the case of Noland v. Liberty Mutual Insurance Co., La., 94 So.2d 671, 673, the Supreme Court with Justice Hamitcr as its organ, reversed the Court of Appeal after granting writs. In the Noland case, which is not nearly as strong factually as to the negligence of the defendant, Goudeau, as is the factual negligence of Crowther in the case at bar, Goudeau was driving a bakery truck before daylight, and when about eight miles north of the village of Scot-landville on blacktopped U. S. Highway 61 which is 20 feet in width with four feet of shoulders (Highway 90 in the case at bar was an old blacktopped macadamized highway 18 feet in width with no shoulders and the accident occurred in the daytime when the highway was wet and slick), he suddenly noticed a third vehicle parked partially on the roadway at approximately a 45° angle without lights, flares or other warning signals. He was not sure whether thereafter the truck accidentally swerved into plaintiffs traffic lane or skidded there as a result of his applying his brakes, nevertheless, the Goudeau truck veered into the approaching plaintiffs lane and struck the side of plaintiff’s automobile. Under this factual situation the Supreme Court reiterated the well-established law applicable thereto in the following words:

“In view of these provisions, and since the instant collision occurred while the bakery truck was in the wrong traffic lane, the presumption is that Goudeau was negligent in the operation of his vehicle. And it follows that the burden is upon him to show that the accident was not caused by his negligence or that there were justifiable circumstances which would excuse his conduct. See Schick v. Jenevein, 145 La. 333, 82 So. 360 and Miller v. Hayes, La.App., 29 So.2d 396.”

Therefore, the burden in this case is upon Crowther to show that this accident was not caused by his negligence or that there were justifiable circumstances which would excuse his conduct. In this I am firmly of the opinion that he has failed.

In order to determine whether Crowther has borne the burden of extricating himself from his prima facie negligence in crashing into the Guidry car in the latter’s own proper lane of travel, it is necessary that we examine to some extent the facts revealed by the record. While the record in this case contains approximately 500 pages, the question of liability is one of fact and is solely dependent upon the testimony of Mr. and Mrs. Crowther, Hebert, Ansley and Myers, and, above all, the incontra-vertible physical facts. The other two living witnesses, Oliviera and Matherne, while credited with making some statements at the scene of the accident, testified that they blacked out and remembered nothing.

On the day in question Robert Crowther and his wife were on their way to New Orleans to see a doctor with regard to a heart condition of Mrs. Crowther. The day was rainy and they were traveling between Des AUemands and Raceland on Highway 90 which it is shown was slick, undulating, subject to holes and ruts, narrow, approximately 18 feet wide with practically no shoulders.

It is shown that as the Crowther Oldsmobile reached a point approximately 3% miles west of Des Allemands about one o’clock in the afternoon, that the driver

Crowther saw the Guidry Chevrolet approaching from the opposite direction, and testified that when he was about “ISO, 165, 170 yards” from the Guidry Chevrolet, he saw the Plymouth station wagon pull about % of the way into the lane of traffic in which he was traveling in an attempt to pass the Guidry automobile, and it seemed that then the driver decided that he could not pass safely and pulled back but not completely into his own lane. Crowther immediately took his foot off of the accelerator as he thought it would be a close squeeze for the Plymouth to safely make the passing without colliding with his automobile. Crowther testified that then almost immediately the Plymouth came back out full into his lane of travel and at this time he was “about 55 yards” from the Guidry Chevrolet. Crowther was asked what he did and he stated: “I attempted to slow down. He started by him and it was evident that an accident was inevitable. As I best recall, I tried to slow down as quickly as possible by trying to tap the brake pedal. Having driven on snow and ■ ice I knew that I could expect a skid by jamming the full brake on.” It might be appropriate right at this time to mention that this witness as well as others testified to the dangerous condition of Highway 90 as it was constructed of macadam asphalt, was narrow and was wet and slick as a result of the heavy rain and, as Crowther put it, “a good gravel road would have been better.” Crowther^ was a civil engineer and fully realized the dangerous condition of this road and knew, the result if he fully applied his brakes. He testified that just prior to the occurrence of this accident he had been going approximately 60 miles an .hour and his wife had been complaining about his always being in a rush because of his duties with his employer and she remarked that he might as well start slowing down at that time, referring then to the speed of the car. He stated that at the time he first noticed the Guidry automobile and Plymouth station ■wagon he was going between 55 and 60 miles per hour, and when asked how much did he decrease the speed of his automobile when he first saw the Plymouth station wagon come out he replied: “It would be hard to say. Five or ten miles per hour possibly.” Crowther testified that the moment he attempted to use his brakes the car went into a skid and proceeded diagonally across the highway and struck the Guidry Chevrolet head-on, knocking it in a semi-circle or 180 degree angle, with its front end facing the direction from which it was approaching and his car turned over on its right side with the front portion over the ditch and his wife pinned in the car with her neck or head between the door and the car. It was necessary to dig a hole under her face so that she could breathe. Crowther was “only slightly injured” with a couple of bruises on his ankle and one on his knee, a cut behind his right ear, and became stiff and sore. It is also shown that approximately three miles from the scene of the accident Crow-ther-had passed another car and just prior to his passing he admitted going 60 miles per hour. Very shortly before the accident his wife told him to slow down and he thought he was going about 50 miles per hour at the time the Plymouth station wagon came into their lane the second time and both of them were confident that it was going to attempt to pass the Guidry Chevrolet and that a collision was inevitable. This is the time Crowther attempted to put on his brakes and lost control of his car. Mrs. Crowther very frankly testified under cross examination when asked whether she thought her husband was traveling at a dangerous speed due to the condition of the weather and the road that “as far as I am concerned I would never drive over thirty on a slippery black topped road. As I said before, I am a worrywart.” As to the movements of the Plymouth station wagon preceding the accident, which both she and her husband contend was a proximate cause of the accident, she testified:

“A. We were driving down the highway. I noticed a car attempting
to pass. I made a comment at that time to my husband about a car trying to pass on a curve. At that time the car went back in its own lane. We assumed he had seen us and was going to stay, and almost immediately he was back and very definitely trying to pass. I saw him approaching the second time and I finally realized we had no place to go and a crash was inevitable. I threw up my arms to protect my face.
sfc # * ‡ sfc
“Q. When this car pulled into your lane of traffic the first time, could you tell us approximately how far it pulled out into the lane, into your lane? A. The first time?
“Q. The first time. A. It was at least a quarter of the car, perhaps up to a half.
“Q. Then he pulled back into his lane? A. Yes, sir.
“Q. What, if anything, did your husband do when this car first pulled into his lane the first time? A. Took his foot off the gas.
"Q. Could you give us any approximation of the distance you were at the time it first pulled into your lane? A. I would say a block, which is three hundred feet.
“Q. Was it in the curve? A. Yes, oh yes.
“Q. After the automobile had pulled back into its lane, had your husband resumed his normal speed or not? A. That would be hard to say. There was a small amount of time involved there.
“Q. In other words, it came out, went back and then came out again immediately? A. Yes.
“Q. Approximately how far was your automobile from this car when it pulled out the second time? A. Now, I go back to my half a block. I use a block as my measurement, so it would be approximately one hundred fifty feet.”

Both Mr. and Mrs. Crowther testified that when the Plymouth station wagon pulled out the second time that it came up even with the Guidry automobile, that is, alongside it when it was an estimated distance of 50 or 60 yards from the Crowther automobile. Crowther also stated that he was approximately 40 yards or 120 feet away • from the Plymouth station wagon when he started skidding.

A comparison of the testimony of Mr. and Mrs. Crowther shows that it is practically the. same.

In addition to the above, there is testimony in the record that Mr. Guidry, who lived until the 10th of July, 1954, is supposed to have made a statement to a third party kinswoman that the Plymouth station wagon was the cause of the wreck. This testimony is pure hearsay. There is nothing to show that Guidry had any idea of the nearness of death. We also have the testimony of the State Trooper who was notified of the wreck by Hebert, driver of the station wagon, shortly after it occurred. His testimony is mainly based upon statements made by Mr. Crowther. At this time Crowther thought the Plymouth was a yellow car and that it had passed by in some manner when the actual collision took place in his opposite lane, however, it is definitely shown that the car he was referring to was the one being driven by Hebert and it was green, and that it successfully pulled back in its own lane of travel and came to a stop some 30 to 40 feet from the front end of the Guidry Chevrolet, after the latter had reversed its ■position. There is absolutely no testimony as to skid marks or the length of skid marks, which would be of material assistance in attempting to reconstruct a true picture of the distances and speed of the various automobiles involved.

Hebert testified that he, Ansley and Myers, were employed by Fenstermaker to do surveying work, mostly for oil companies; that on the date of the accident he, together with Myers and Ansley, was proceeding from Des Allemands in the direction of Raceland and he first saw the Gui-dry car in front of him one half or maybe three-quarters of a mile. He came to within approximately 300 feet behind the Gui-dry car and he pulled out to pass the Guidry ■car and he saw the Crowther car at this time “1,000 to 1,200, maybe 1,500 feet,” from his station wagon, and as he went to cut back he saw Crowther’s car begin to go into a spin or skid and at the time of the actual collision or impact between the Crowther Oldsmobile and the Guidry Chevrolet he was approximately 120 feet behind the Guidry Chevrolet and he brought his car to a stop 30 to 40 feet from the Guidry Chevrolet. Hebert testified that he thought the Oldsmobile had slipped off of the narrow black top onto the shoulder just prior to going into a skid and he estimated the speed of the Oldsmobile at 70 or 75 miles per hour.

This witness was questioned about a statement he gave which was not introduced in evidence but has been annexed to the defendant’s brief, and his testimony and the statement are consistent on material issues.

Ansley testified that he was riding in the station wagon on the right hand side of the front seat next to the driver, Hebert; that they were traveling to the rear and at approximately the same speed as the Guidry Chevrolet, and he saw the Crowther Oldsmobile when he lifted his head from reading at the time that Hebert pulled out preparatory to passing or to see if the way was clear to pass the Guidry Chevrolet. At this time he estimated the distance between the Crowther car and the station wagon as being 1,000 feet and he estimated the distance between the two cars at 700 feet when the Crowther automobile started to skid. Whether the station wagon went 300 feet in the wrong lane before pulling back is unexplained by Ansley. This witness gave statements in May and February of 1955 and admitted that at that time he had stated that the Crowther automobile was about 175 to 200 feet away when it started skidding. There is no question about this and his explanation for his change was that he had visited the scene of the accident on the same morning he was being questioned at the trial and had concluded he was in error as to distances previously given the adjuster.

It will be noted that the Crowthers contend the Hebert station wagon pulled out twice into their lane of travel in an attempt or to see if it could pass the Guidry automobile. They do state that the second attempt immediately followed the first, however, Hebert and the occupants of his station wagon testified that the latter pulled out one time to see if he could pass and seeing the Crowther car, which according to them immediately went into a skid, he merely pulled back into his proper lane of travel, and realizing the inevitability of a collision between Crowther and Guidry, applied his brakes and stopped the station wagon on its own side of the road an estimated distance of from 30 to 40 feet from the wrecked Guidry automobile. Of course, they testify that they never did pull alongside of or parallel to the Guidry car, but that they were a safe distance to the rear when they pulled out to see if they could safely pass. I am of the opinion that the Crowthers are mistaken when they testify that the Hebert station' wagon pulled out twice, for the very simple reason that it was broad daylight, the Crowther car was in plain view, and when they pulled out they saw where the car was and know and are bound to have known and realized the danger of an attempted passing at the time. We realize that the testimony of Hebert and the occupants of his station wagon has been severely criticized by the District Court and necessarily, in adopting the District Court’s findings, by the majority in this court, because Ansley and Myers, the guest passengers, gave an adjuster a statement of the estimated distance between the Hebert station wagon and the Crowther automobile at the time the station wagon pulled out, and then changed their estimate of this distance after revisiting the scene of the accident on the trial. The estimate given the adjuster is clearly wrong as will be hereinafter shown by the physical facts which cannot be successfully disputed or questioned in this case. I don’t believe any witness should be severely criticized for correcting a patent error. As to whether the changed estimate given on the trial is correct or not is another question.

Myers testified that he was seated on the left rear side of the station wagon behind Hebert, the driver, and he saw the Crow-ther automobile “ * * * Just about the time it went into the skid * * * ” and at this time Hebert had already pulled out and “the center line just about split the station wagon as far as I can remember.” This witness also stated that the Crowther automobile appeared to hit the shoulder right about the time he saw it start skidding and it skidded diagonally across the road. This witness also gave a statement on February 2, 1955 and May 2, 1955, in which he had said:

“After the wreck and on the way home Hebert said he thought it was his fault by pulling out, but I didn’t agree with him.”

On the trial he testified that the investigator had gotten the wrong impression of what he had said, however, he admitted that Hebert had asked them when they were riding together after the wreck if there was anything he had done that might have caused the accident but he emphatically denied that Hebert said that something he had done did cause it. The least that can be said for this testimony is that the thought was evidently in Hebert’s mind after the accident that possibly his pulling out into the opposite lane had set in motion the action taken by Crowther which caused the Oldsmobile to skid diagonally across the road and into the Guidry Chevrolet.

The District Court gave written reasons as to why it could not accept the testimony of Hebert, Ansley and Myers, which principally was because of the difference in what they told the investigator in their statements of February and May, 1955, and their testimony given on the trial. As previously mentioned, there is practically no difference in the statement given to the investigator by Hebert and the testimony which he gave on the trial. I am confident that Mr. and Mrs. Crowther were in error in their estimates of the distances between the Oldsmobile and the station wagon when they stated it pulled out to pass, at which time they said Hebert’s station wagon came alongside the Guidry Chevrolet. If the distance was approximately from 150 to 175 feet as given by them it would have been impossible for the Plymouth station wagon to have gotten back to the rear of the Guidry automobile, which was traveling 35 to 40 miles per hour, and to have stopped some 30 to 40 feet distance from the Guidry Chevrolet in its own proper lane of travel after the collision. This appears self-evident and needs no further explanation.

The District Court reconstructed the accident in accordance with the testimony of the Crowthers in his written reasons and exlionerated Crowther of any negligence. We quote the pertinent portions of the learned judge’s reasons on these points:

“If we construct the scene when the Plymouth ‘pulled out’ to pass the Chevrolet, we find the approximate distance between the Plymouth and the Oldsmobile (estimated by Ansley at T75 feet or more’) to be less than 200 feet, the estimated distance most favorable to the defendants, Hebert, Fenstermaker and Aetna. At that point the Oldsmobile was proceeding in its own lane at a speed (fixed by Mr. and Mrs. Crowther at 50 miles per hour a short time before the collision, and by Crowther at 5 or 10 miles an hour less at the moment the Plymouth ‘pulled out’) of not more than SO miles per hour, and the Plymouth was travel-ling at a speed (estimated by Meyers in his statement of February 2, 1955, at 50 miles per hour, and by Ansley in his statement of February 10, 1955, at 50 miles per hour) of about 50 miles per hour. Thus the Oldsmobile and the Plymouth were each travelling at a speed of 74 feet per second, and approaching one another at a speed of 148 feet per second. If the cars were as far apart as 200 feet at the moment the Plymouth ‘pulled out', they were then about 1.4 seconds apart. Assuming the reaction time of each driver to have been the average of % of a second, the approaching Oldsmobile and Plymouth each travelled a distance of 55 feet during reaction time, or a total distance of 110 feet, and were then 90 feet or less, or about .55 second apart when braking became effective. This very nearly coincides with Ansley’s estimate that the cars were never close together than 100 feet before the impact. (NOTE: The reaction time may have been shorter in the case of Hebert, since he anticipated his own actions and may have been prepared for any eventuality when he ventured out of his lane, while Crowther could not). When the Oldsmobile and the Plymouth were at that moment a distance apart of approximately 90 feet, and an approximate travelling time apart of % of a second, and the Chevrolet and the Oldsmobile were even closer together, the braking of Crow-ther became effective, the Oldsmobile. went into a skid, and crossed the center line ‘not over 25 or 30 feet from the Chevrolet’ (according to Ansley) and crashed into it. That is the scene that prompted Crowther to say that when the Plymouth pulled out into his lane, ‘it was evident that an accident was inevitable’, and that apparently troubled Hebert’s conscience, as reflected by Meyers’ statement that ‘After the wreck and on the way home Hebert said he thought it was his fault.
* * «I* *
******
“The defendants contend ‘that the skidding of the Oldsmobile was of the most immediate proximate connection with the collision of the Oldsmobile and the Guidry vehicle’, and that ‘the excessive speed of the Crowther car was an immediate, vital and necessary element to it having gone into a skid upon a ‘tap’ on the brakes.’ This contention, even though it may be true, does not necessarily establish Crowther’s action as the proximate cause of the accident. The defendants cite Geoghegan v. Greyhound, [226 La. 405] 76 So.2d 412, and other cases, most of which were referred to and considered in Gautreaux v. Orgeron, [La.App.] 84 So.2d 632, wherein it was held ‘that if plaintiff Gautreaux’s speed was excessive under the circumstances, such speed was not the proximate cause of this accident and of the damage for which relief is sought.’ That declaration is applicable to the facts of this case.”

We see from the reasons above that the District Court accepted a distance of less than 200 feet separating the Oldsmobile and the Plymouth station wagon when the latter pulled out into the opposite lane the second time to pass the Guidry Chevrolet, however, it must be remembered these same witnesses testified that it ran alongside of the Guidry Chevrolet. The speed used in the above was 50 miles for each automobile. It must also be remembered that the Guidry automobile was moving along at a less speed or approximately 35 or 40'miles per hour when this was supposed to be happening. The District Court says that at the end of the reaction time the two automobiles were approximately 90 feet or less apart or about Wioo seconds apart when braking became effective, which means that they were still traveling at the moment the braking became effective, together, at a speed of 100 miles per hour. If we accept the distances upon which the reconstruction of the accident was based by the District Court, then as far as the Oldsmobile is concerned it could be accepted as correct, however, it is impossible for it to have happened as reconstructed by our brother below when we apply it to what actually happened with regard to the Plymouth station wagon. In other words, this station wagon would have had 25 or 30 feet in which to stop sufficiently to get behind the Guidry Chevrolet and come to a full stop 30 to 40 feet from the Chevrolet’s position after the impact. It will be noted that the District Court made mention that the reaction time may have been shorter in the case of Hebert but it could not have materially effected the answer to his reconstruction of the accident.

It would appear that this is sufficient explanation to show manifest error in the trial judge’s reconstruction of this accident. On a good road under good conditions the total braking distance of an automobile at 50 miles per hour is 235.3 feet according to the Lawyer’s Motor Vehicle Speed chart. We are not too much concerned with the actions of the driver of the Guidry car for no contributory negligence is plead, however, in one of the statements given by an occupant of the Plymouth station wagon he referred to having seen the brake light go on on the Chevrolet when Crowther started to skid. If this be true it would make it much more difficult and practically impossible for the station wagon to have maneuvered itself to the rear of the Chevrolet and stopped within 30 to 40 feet from its position after the impact all in a distance of 25 feet or 30 feet or 90 feet, although there is no basis to accept 90 feet.

The majority opinion suggests that possibly the Hebert station wagon did not come to a successful stop 30 to 40 feet from the Guidry automobile in its own proper lane of travel but may have continued in its passing attempt and actually passed the Guidry car and the Crowther car subsequent to or at the time of the impact. In my opinion this is absolutely impossible due to the fact that the Crowther car in its skidding blocked both lanes of the highway and, remember, there were no shoulders for any car to get off on. At the moment of impact the position of the Crowther car was such that no car could have passed to the rear of it. It was only after it had struck the Guidry car and knocked it in a clockwise direction 180 degrees that it passed on and the front portion of the Crowther car was off of the black top of the westbound traffic lane with the rear portion still on the black top of the westbound lane. Therefore, for the Hebert station wagon to have successfully passed in the eastbound traffic lane it would not have arrived at the point of collision until after the Crowther automobile had collided and cleared this lane of travel which of necessity would have placed the Guidry automobile much further than the 150 or 200 feet the Crowther automobile skidded before the impact away from the Guidry automobile, and it must be remembered that the Hebert station wagon was only traveling approximately 54 as fast as the Crow-ther automobile, which would have placed it still further down the road and would completely wipe out any finding of emergency. Crowther and Mrs. Crowther admitted to a speed of 50 to 55 miles per hour just prior to and at the time of the collision, however, I believe that actually Crowther was going not less than 60 miles per hour and that at the time he lightly tapped his brakes that because he knew that with the dangerous condition of the road which was shown to have been wet, undulating and uneven and constructed of macadam which becomes very dangerous when wet, and at his speed that it was impossible for him to use the only safety device on that automobile which would bring it to a stop and avert the collision, viz., the brakes. Of course, I do not think there was any necessity for him to even touch the brakes but I believe that when the Hebert station wagon at not less than 300 or possibly four or five hundred feet distance pulled out to see whether it could pass, it brought the first realization home to Crowther that he was going too fast under the conditions of the weather and road and he therefore decided to slow down. Regardless of whether he was going SO or SS miles per hour or faster, he could have continued in his own lane of travel and would have met with no obstruction.

Based on the testimony and the physical facts I am of the opinion that there was no emergency created by the Hebert station wagon and that Crowther has failed to bear the burden of proof necessary to extricate himself from the prima facie negligence imposed upon him by law.

In addition I am of the opinion that the excessive speed of the Crowther automobile under the conditions existing at the time and his inability to use his brakes because of his speed and the conditions of the road, as well as his loss of control due to the simple application or lightly tapping of his brakes was the sole proximate cause of the collision.

The District Court in speaking of the contention as to the excessive speed of the Crowther automobile said that “even though it may be true” but then held under the authority of the Gautreaux case, supra, that the excessive speed was not the proximate cause of the accident. The cited case is not apposite for in that case the Gau-treaux automobile had run into a large cane truck. We found there under the facts presented that the unlighted cane truck blocked the entire highway and was so constructed that it “blended into the dark background,” and Gautreaux, even had he observed "this long truck parked on the far shoulder or moving slowly in the left lane reserved for traffic coming from an opposite direction, he could not reasonably anticipate the sudden crossing of this long vehicle into his path, and obstructing the entire highway,” and Gautreaux “ * * * as the District Court held, would have been unable to do so [avoid the accident] even approaching much more slowly. Therefore, plaintiff’s speed was not a proximate contributory cause of the accident.” [84 So.2d 633.] Thus in the Gautreaux case, the accident having happened “between daylight and dark” and involving an unseeable object, cannot be used as a criterion in the case at bar.

As contended by counsel for defendant in his brief, the courts have consistently held that a reasonable and proper speed must be determined by the facts and circumstances of the case. This is exactly what the law says as contained in LSA-R.S. 32:227 which provides:

“In addition to the specific speed limitations of this Chapter, no person shall operate any vehicle upon the highways of this state at other than a reasonable and proper speed under the circumstances, or at a speed endangering the persons or property of others.”

I agree with counsel for defendant’s presentation in his brief of the facts and circumstances in this case which convict Crow-ther of negligence which was a proximate cause or a concurring proximate cause of this collision herein, that is, his excessive speed. Counsel in their brief state:

“We must then consider under what circumstances the respective drivers were operating their vehicles on the date of the accident. The first factor to be considered is the condition of the road and the condition of the weather. There is not one iota of testimony to-indicate that the road was in anything but a terrible condition and was considered dangerous even by Mr. Crow-ther. It was raining at the time, and the highway was wet and slippery. It was narrow, undulating, wavy and broken at the edges, covered with holes, ruts and debris; and, according to Danos, it had other defects. Despite all this, Mr. Crowther openly admits that he was proceeding at a speed of 55 to 60 miles per hour, a speed he considered dangerous under the circumstances. In fact, Mr. Crow-ther admitted that just prior to the point of the accident he had exceeded 60 miles per hour in order to overtake and pass another vehicle. Sixty miles an hour is specified as the maximum speed limit at any time, on any highway of the state, even under the very best of conditions of weather and of visibility and even where there are four wide concrete lanes. Under the

facts of this case, a speed of 55 to 60 miles per hour constituted negligence of the grossest degree.

“The only possible question, therefore, as to Mr. Crowther’s liability is as to whether or not his obvious negligence in driving at such an excessive speed contributed to or was the proximate cause of the accident involved in these cases.
“It is hornbook law that regulation of speed by statute or ordinance and the general legal rules as to safe speeds under the circumstances have as their direct object the requirement that a motorist control his vehicle under the conditions prevailing, that he be able to slow or stop his vehicle if circumstances require, and necessarily as part of the foregoing, that he not completely lose control upon an application of his brakes and permit his car to proceed into an opposing traffic lane with resulting danger to other motorists. It should be noted in Mr. Crowther’s testimony that he carefully points out that he did not put his brakes on hard, that he ‘tapped’ or ‘cautiously’ applied his brakes, but that, nevertheless, his car immediately started into a gradual skid to his left and across the highway. Although he turned his wheels in the direction of the skid, toward his right, he was unable to bring the car out of the skid, and, accordingly — and this is all according to Mr. Crowther’s testimony — his car,
completely out of control, proceeded m a straight line diagonally along and across the highway directly toward the Guidry car. Mr. Crowther repeatedly testified that this skidding continued for a distance of approximately 150 feet down the highway. Just after the Crowther car crossed the center line of the highway, the impact with the Guidry car occurred. We cannot help but submitjo Your Honors that this is exactly the result that restrictions and limits on speed, particularly under dangerous, slippery circumstances, are designed to prevent.
* * * * * *
“We submit to Your Honors that a motorist who operates his vehicle at such speed and under such circumstances that he cannot afford to regard the motion of his vehicle, even momentarily, without losing control of it is directly and proximately responsible for an accident such as that here involved. We repeat: Hebert did stop.”

Some of the cases cited by defendant in which our courts have held excessive speed under similar circumstances as in the present case to be negligent and, therefore, a proximate cause of an accident are: Singletary v. Kirby, La.App., 39 So.2d 189, in which “the accident occurred on a highway somewhat similar to, but in much better shape than, the one Mr. Crowther was driving on. The road was blacktopped, about 18 feet in width, and was allegedly damp and slick. The plaintiff’s car was proceeding at approximately 45 to 50 miles per hour according to the plaintiff’s testimony, when confronted with a large truck from the opposite direction pulling out into its lane. These two vehicles later collided, and there was the usual complete conflict in the testimony as to exactly where and how the accident occurred. The Court of Appeal found that the accident which resulted was due solely to the negligence of the driver of plaintiff’s car, which went out of control and skidded down the highway and into the truck in question. Although, in some details, the Singletary case is different from the case at bar, the Court’s finding on the proximate cause of the accident and on the plaintiff driver’s failure to bring his car under control and to reduce his speed is squarely applicable to the present case,” and Dupuy v. Godchaux Sugars, Inc., La.App., 184 So. 730, which clearly points out the negligence and proximate causation of an accident by excessive speed and lack of control; and Redden v. Blythe, La.App., 12 So.2d 728, 731, in which the court through Justice McCaleb commented upon the inability of the defendant to apply his brakes at the time he foresaw the possibility of an accident because the roadway was too wet in the following language: “ * * * It seems to us that it was imprudent for him, while travelling on a wet road, not to have slowed down immediately to such a speed that he could have applied his brakes with safety. It will not do for him to say that he elected to wait until an emergency was created and that he could not apply all effective means at his command because it was too late. Caution demanded otherwise. His failure to act when he had time to act must be regarded as negligence which had causal connection with the ensuing accident.” The estimated speed of the Blythe car by the plaintiff was 50 miles per hour and by Blythe himself as being 40 miles per hour. In either event the court clearly held that it was too fast and excessive under the circumstances, viz., that it was drizzling rain at the time and the roadway was wet and slippery.

The cases cited by the majority are not apposite for the reason that they were based upon the creation of an emergency by the Hebert station wagon and, further, because in those cases there was a stationary object blocking the lane of travel of the plaintiff atitomobile, which created, according to the facts in each case, an emergency and if the people in those cases had been going 100 miles per hour or 30 miles per hour they could not have avoided the collision, and, therefore, the speed was not a negligent contributing factor in those cases. In the present case, not only was no emergency created but Crowther’s lane of travel was unobstructed in sufficient time for him to have safely proceeded because the in-contravertible physical facts show this to be true in that the Hebert station wagon did not pass the Guidry car or the wrecked Crowther car but caftie to a successful stop some 30 feet to the rear of the Guidry wrecked automobile in the westbound traffic lane. Again may I reiterate that had Crow-ther continued there would have been no collision. I am therefore unalterably of the opinion that Crowther’s negligence as above stated, which resulted in the loss of control of his automobile, constituted the sole and proximate cause of the collision, injuries and damages in these cases.

As to quantum I agree in all except the case of Clyde Matherne who suffered an aggravation of a prior knee injury. Due to my views as to liability I will take up no time in detailing the testimony as to Math-erne’s injury but merely state that while counsel sued for $27,000 the record shows that he attempted to get an agreement or stipulation from counsel for defendants to the effect that a judgment should be rendered ' in favor of Clyde Matherne for $12,500 which was refused. In view of this fact, together with the testimony, I am of the opinion that $5,000 would be an ample award to compensate young Matherne for the aggravation of his prior knee troubles which he, of course, made worse subsequent to the accident by attempting to play baseball and slide into the bases and on another occasion by falling on some tile in a tourist court at Biloxi.

For the above and foregoing reasons I believe that the judgment should only be rendered against Robert James Crowther and the insurer of the automobile which he was driving as he was solely responsible, and I therefore respectfully dissent from the majority opinion herein.

Rehearing denied; ELLIS, J., dissenting.

      . The present is by the children of Mr. and Mrs. Gustave Guidry, Sr., against (a) Orowther, (b) his liability insurers, (c) Roy J. Hebert, driver of a vehicle overtaking Guidry, (d) O. H. Fenstermaker, Hebert’s employer at the time of the accident, and (e) the Aetna Casualty and Surety Company, the liability insurer of Hebert and Fenstermaker. The suits on behalf of the Guidry rear seat passengers were against the same codefendants, Matherne v. Crowther, La.App., 96 So.2d 41 and Oliveira v. Crowthers, La. App., 96 So.2d 96. Mrs. Faith Sehack Orowther likewise filed suit for injuries resulting from the accident, making co-defendant all of said defendants except her husband and Hebert, Orowther v. Fenstermaker, La.App., 96 So.2d 91. Robert James Orowther filed suit only against Aetna, liability insurer of Hebert, Orowther v. Aetna Casualty & Surety Co., La.App., 96 So.2d 94. All of these opinions are rendered this date by this court. The present, opinion discusses the facts and legal issues relating to liability which are common to all five suits, whereas the separate opinions of the other four suits are restricted to a discussion of the damages awarded to the plaintiffs therein. The District Court rendered judgment against Hebert, his employer, and their liability insurer (Aetna) in all suits in which they were parties defendant; and these defendants are appellants herein. All plaintiffs except Crowther appealed devolutively from dismissal of their suits against Crowther and his liability insurers, in the event the appellate courts should allocate liability otherwise.

      . It should be noted that the discrepancies are not those which sometimes result by the distortions of one person’s oral answers as translated into a hostile adjuster’s written statement; these statements of February, 1955, taken down by Aetna, their own insurer, amount to a radicahy different version of the accident than that to which testified. The front seat passenger’s (Ansley’s) original report was that Hebert nosed out to pass Guidry when the Crowther Oldsmobile was 175-200 feet away; at the trial, he testified to a distance of 700-1100'. The initial statement of this passenger was that Hebert had closed to 25-30 feet in Guidry’s rear before pulling out into the lane, and the initial statement of the rear seat passenger was that Hebert pulled into the left lane when just 10' in Guidry’s rear to pass; at the trial, the later was unable to estimate the distance, even in terms of 50' or 100', although he like the other station wagon occupants remembered with precision and clarity that the station wagon had come to a full stop 30' behind the wrecked ■Guidry and Crowther cars. Ansley’s testimony at the trial is ambiguous as to whether he repudiated also his initial statement to his own adjuster that Hebert drew up to within 25-30' of the Guidry vehicle before crossing halfway into Crowther’s lane; but defendant can draw little comfort if Ansley’s testimony is construed so as not to repudiate this initial estimate, for then he flatly contradicts Hebert’s version of the accident and substantially corroborates Crowther’s. Hebert, a codefendant and alerted by a prior telephone call from counsel for plaintiff, gave a statement more consistent with his testimony at the trial, although he swore that his speed was 40 mph (as compared with the initial estimate in his statement of 30 mph), which if true would tend to increase his distance from Crowther when he pulled out, if he actually had come to a stop as he said he did. It is of course unnecessary to add that we could not conceivably intimate that any part in any intended deception of the courts was played by eminent counsel herein, who are among the most respected in this State for integrity and ability.


source: Caselaw Access Project

author: TATE, Judge.

license: Public Domain

text:
    Forest MATHERNE, for himself individually, and on behalf of his son, Clyde Matherne, v. Robert James CROWTHER et al.
    No. 4417.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.
    A. Deutsche O’Neal, Kenneth Watkins, Houma, for plaintiff-appellee.
    • Pugh, Lanier & Pugh, Thibodaux, Adams & Reese, New Orleans, for defendant-ap-pellee.
   TATE, Judge.

The facts and legal issues as to liability are discussed in the companion case, Guidry v. Crowther, La.App., 96 So.2d 71, rendered this date. For the reasons stated therein, the District Court correctly held appellants liable.

Appellants alternatively urge that the damages awarded to plaintiff were excessive.

Aside from special damages, the District Court awarded $27,000 for pain, suffering, and a somewhat disabling knee injury, and for certain minor disfiguring scars, sustained by Clyde Matherne, a rear seat passenger in the Guidry car, and the minor son of Forest Matherne, who brought suit herein in his son’s behalf and also individually for Clyde’s medical expenses resulting from the aforesaid injuries.

Clyde Matherne, a high school student, suffered as well as cuts and lacerations about his face and head, a very severe laceration of his left knee, requiring his initial hospitalization for five days, and the use of crutches for approximately four weeks. The severe laceration of the knee divided the tendon of the leader muscle of the upper left leg.

Following Clyde’s initial discharge, the attending physician estimated a residual disability of the knee of 10-15% because of a defect in the tendon caused by the accident. Because of this, and because over the year or so subsequent to the accident Clyde’s knee showed a predisposition to an infectious swelling upon twisting or strenuous use, this doctor was of the opinion that Clyde’s knee barred him from participation in athletics and made inadvisable his undertaking employments involving excessive use of the knee.

At the time of trial, Clyde was employed at the Avondale Works as a “machinists’ helper” at $1.40 per hour, which he testified did not involve climbing and other exceptionally strenuous use of the knee.

.Clyde was readmitted to the hospital from August 5-15, 1954, less than a month after the accident, when he slipped and twisted his knee on vacation at Biloxi, Miss., as a result of which an infectious swelling occurred; and again from April 8-15, 1955, when the same condition resulted when he slipped and twisted his knee while playing baseball. The District Court found, correctly in our opinion, that the injuries sustained in the automobile accident had introduced an infectious condition into the knee, flare-ups of which might be precipitated by subsequent injuries and had probably been in these instances and also in a subsequent incident in the military service when Clyde tripped over a tent-rope, as a result of which he was discharged after six months’ service.

A majority of the court has deter-, mined, however, that the subsequent re-injuries were as much a result of Clyde’s strenuous activities, in which he engaged so relatively soon after the accident, at the time as of the predisposition resulting from the accident; and that under the peculiar facts of this injury the preferable method of making an award would be to have the lump sum include an award for this predisposition to re-injury, the extent and duration of which the doctor frankly admitted could not be definitely known. We feel that under the particular circumstances of this case the extent to which the traumatically-induced predisposition contributed to subsequent hospitalizations, or might in the future so contribute, to be too conjectural to base an award of special damages for medical expenses based upon same.

Fully recognizing that the assessment of damages for personal injuries is-somewhat arbitrary, varies greatly with the facts and circumstances of each case, and must be left largely to the discretion of the trial court, yet nevertheless there is an accompanying principle that there should be “some degree of uniformity in cases involving similar injuries and disabilities”, Thomas v. Great American Indemnity Company, La.App. 2 Cir., 83 So.2d 485, 487. And a majority of this court feels that the award of $27,000 for Clyde’s personal injuries— his laceration of the knee, his relatively minor scars, his pain and suffering, the loss of the opportunity to play as his-school’s star athlete on the football team his senior year, his partial disability for some types of strenuous labor, his predisposition of uncertain duration to flare-ups of an infectious knee condition- — -to be in excess of what has been awarded in cases involving like injuries, even taking into consideration the decreased purchasing power of the dollar and the varying circumstances, and that this award should be reduced to $12,500. See Smith v. Manufacturers Cas. Ins. Co., La.App. 1 Cir., 83 So.2d 164, for a leg injury case involving far greater pain but more conjectural permanent disability than the present, making a similar award.

The District Court’s award of medical expenses to Forest Matherne, the father,, included the cost of the hospitalizations for the flare-ups subsequent to the initial hospitalization, which a majority of this court have concluded were not shown by a preponderance of the evidence to be a proximate result of the accident. This portion ■of the award must therefore be disallowed.

For this reason, we will reduce the award in favor of Forest Matherne individually to $131 (being the cost of the hospitalization .of July 7, 1954, to July 12, 1954) plus $150 medical fee (the $300 fee of the attending physicians for professional service being ■allocated to each principal hospitalization ■during the period in question).

For the above and foregoing reasons, the judgment in favor of Forest Matherne individually is reduced to $281, plus legal interest thereupon from date of judicial demand until paid, and to Forest Matherne as administrator of the estate of his minor :son, Clyde Matherne, to the sum of $12,-500, with legal interest thereupon from date ■of judicial demand until paid. In all other respects, the judgment appealed from is affirmed.

Amended and affirmed.

ELLIS, J., dissents.

Rehearing denied; ELLIS, J., dissenting.


text:
    Faith Schack CROWTHER, Plaintiff-Appellee, v. C. H. FENSTERMAKER et al., Defendants-Appellants-Appellees.
    No. 4418.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.

      Davidson, Meaux, Onebane & Nehrbass, Lafayette, for plaintiff-appellee.
    Adams & Reese, New Orleans, Pugh, Lanier & Pugh, Thibodaux, for defendant-appellee.
   TATE, Judge.

The facts and legal issues as to liability are discussed in the companion case rendered this date, Guidry v. Crowther, La. App., 96 So.2d 71. For the reasons stated therein, we agree with the District Court’s determination that defendants-appellants, the employer and liability insurer of Hebert, are solely liable; and that the suit should be dismissed as to Mrs. Crowther’s husband’s insurers.

Appellants alternatively urge that the damages of $70,000 awarded by the District Court for Mrs. Crowther’s personal injuries are excessive in amount. (Special damages sustained by the Crowther community are awarded in the suit by present plaintiff’s husband, Crowther v. Aetna Casualty and Surety Company, La.App., 96 So.2d 94, this date rendered.)

The record shows that Mrs. Faith Schack Crowther was, prior to the accident, an attractive and athletic young woman 26 years of age.

In the accident of June 7, 1954, both legs and her left hip were seriously fractured, the left thighbone being shattered by a compound comminuted fracture, as well as her body sustaining numerous generalized gashes and bruises. The impact and overturned car caused' Mrs. Crowther’s head to be caught outside and underneath the car door, her body “scrambled up inside” the vehicle; her agonized screaming attracted help so that the dirt was scraped away from her face to permit her to breathe. The car caught fire while Mrs. Crowther, fully conscious, was trapped beneath it; the fire was put out, and it took about ten men to roll the car from her body. She was in severe pain during this entire time and during the hour’s wait for the ambulance, nor could this excruciating pain be relieved by more than slight sedatives (due to a minor heart condition attributable to rheumatic fever, for treatment of which the Crowthers had been en route to New Orleans at the time of the accident). She remained in this state until about 10:00 P.M. that night when, finally, the surgeon was secured to perform an open reduction operation both on the left thighbone, where two metal plates and ten screws were applied, and upon the left hip, where fixation was accomplished through two large metal screws. Her right leg was put in a complete cast.

From the moment of her collision on July 7, 1954, right up through her final operation of November, 1955, at the Mayo Clinic, Mrs. Crowther suffered excruciating pain and anguish; and there is still, according to her complaint, some slight residual.

She was hospitalized at Raceland following the accident from July 7 through July 26, 1954, when she was transferred to her home in Lafayette by ambulance, being thereafter confined to her bed, still in a cast. Within about two weeks, she commenced running a fever which caused her hospitalization commencing August 19, and ending September 22d, for a condition of subacute bacterial endocarditis; despite appellants’ contrary assertion, the preponderant medical testimony is that this bacterial infection of the heart resulted from the entry of the infecting organisms through the compound fractui'es at the time of the accident, remaining dormant during the routine anti-biotic treatment during the initial hospitalization, but flaring up again on her return home. Her fever from this dangerous ailment ran as high as 103 to 104 degrees, and it was brought under control and cured only by her continuous hospitalization for 42 days during which she was treated with massive doses of penicillin (totalling 20,000,000 units) inserted in a continuous drip through a needle in her veins, which needle had to be changed every day or so as the vein previously utilized collapsed.

Mrs. Crowther was confined in a cast for 2i4 months, to a wheelchair about two months, to crutches about four months, and then to a full length weight bearing brace for about six months, terminating November 4, 1955, when another hip operation at Mayo’s Clinic in Rochester, Minnesota, was performed. A bracket hip reconstruction was at this time performed, reconstructing the fractured hip. She was hospitalized until November 26, 1955, and was not released from the painful body cast until January 30, 1956, or after 95 days. She was again hospitalized at the Mayo Clinic from January 29, through February 18, 1956, for further procedures. Except for another minor surgical procedure on May 4, 1956, involving removal of the screws placed in her hip during the November, 1955, operation, Mrs. Crowther has remained home, undergoing physiotherapic treatment approximately one hour per day.

Dr. Sullivan’s summary as to her present condition dated June 11, 1956, was admitted in evidence by stipulation of counsel:

“I last examined Mrs. Crowther on May 3, 1956 at the Clinic at which time I was very pleased with the results of her surgery performed on November 4, 1955. She has excellent motion, thus far, considering the original disability. Her abduction and rotation are limited about 25 per cent. Her chief limitation, however, is in flexion, at which time she now demonstrates about 45 degrees. She walks with a pivoting type of gait, but states that she has no pain, except over the trochanteric region, where the Steinmann pins could be felt deep in the muscle.
“X-ray examination of the old fracture of the femur looked satisfactory and it will be perfectly all right, so far as I can tell now. I would think that no further surgery will be necessary and we do hope that she continues to improve.
“I admitted Mrs. Crowther to the bt. Mary’s Hospital on May 3, 1956 and on May 4, 1956, I removed the two Stein-mann pins from her hip. She was planning to return home for removal of her sutures and I asked her, if possible, to return in about a year for a recheck examination.
“As I believe I mentioned while you were here, it is impossible to give the ultimate outcome in these cases, since many of them will go along quite well until degeneration of the hip occurs, at five or ten years following the injury. Many, of them, of course, go much longer and it is our hope that Mrs. Crow-ther will fall into this group and have a useful hip for the rest of her days.
“At the present time, however, I think I would give a permanent disability rating of approximately 50 per cent of the left lower extremity.”

The crippled gait requires the use of a cane in walking, although with the courage she manifested throughout this tortuous treatment Mrs. Crowther endeavors to walk without same for periodic intervals in'order to aid in her rehabilitation. The physiotherapy, various and sundry rehabilitating exercises, awkwardness constitute a constant inconvenience hampering her enjoyment of a normal life. Mrs. Crowther retains certain disfiguring scars about her legs.

The District Court’s summary stated:

“There is no dispute as to her having suffered extensive pain as a result of her injuries, nor can there be any as to the anguish of a young married woman in the full bloom of youth during her long period of immobilization as to the unhappy prospect of a shattered life. During that time her occupational social, recreational and marital life were in suspense, with only a bare hope of revival. Her utter discomfort during her appearance in Court in February, 1956 was completely evident and clearly unfeigned.”

Uncontradicted also is Dr. Sullivan’s estimate of a permanent residual crippling amounting to loss of 50% of the left leg, with an awkward and cumbersome gait, with the distinct possibility that degeneration (necrosis) of the hip will set in within five to ten years.

While the award of damages is of necessity somewhat arbitrary, and the discretion of the District Court should not ordinarily be disturbed in such matters, yet we are likewise enjoined that awards should be made so that there is some degree of uniformity in cases involving similar injuries, after taking into account the great variation in circumstances surrounding each injury. See, e. g., Higginbotham v. Frazier, La.App. 1 Cir., 92 So.2d 89. We are of the opinion that the District Court’s award of $70,000 for plaintiff’s agonizing suffering, mental anguish, crippling permanent injuries, possibility of necrosis, and other personal injuries is excessive with regard to awards previously made for comparable injuries and should be reduced to $45,000. Marler v. State, La.App. 2 Cir., 78 So.2d 26, cert. denied; Preuett v. State, La.App. 2 Cir., 62 So.2d 686.

For the above and foregoing reasons, the trial court’s award in favor of plaintiff is reduced to $45,000 plus legal interest, etc.; •and as thus amended, is affirmed in all other respects.

Amended; and as amended, affirmed.

ELLIS, J., dissents.

Rehearing denied; ELLIS, J., dissenting.


text:
    R. James CROWTHER, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Appellee.
    No. 4419.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Judgment amended and as amended affirmed.

      Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.
    Dugas, Bean, Bertrand & Smith, Lafayette, for appellee.
   TATE, Judge.

The facts and legal issues as to liability are discussed in the companion case, Guidry v. Crowther, La.App., 96 So.2d 71, rendered this date. For the reasons stated therein, the District Court correctly held defendant-appellant liable.

Appellant alternatively urges that excessive special damages of $12,739.39 were awarded to plaintiff. Plaintiff appealed from the judgment asking that the award be increased to include certain minor omissions.

There is no substantial dispute as to the sum of $5,600 awarded plaintiff Crowther, as head of the community, for the community’s loss of Mrs. Crowther’s earnings as a legal secretary; except that counsel for appellant correctly points out that through an error of computation an additional month’s salary ($200) was allowed. This item will accordingly be reduced to this extent.

There is likewise no substantial dispute as to most of the heavy medical expenses incurred. Counsel for appellant urges that the sum of $1,773.77 allowed for hospitalization and medical services because of the heart infection in August, 1954, should be disallowed on the ground that this condition was not a proximate consequence of the present accident. For the reasons discussed in Mrs. Fay Shack Crowther’s companion suit, Crowther v. Fenstermaker, La.App., 96 So.2d 91, we cannot sustain this defense. Counsel for appellant urges, correctly in our opinion, that the sum of $1,150 awarded for “future medical expenses” is not supported by the record, since no evidence was produced as to the probable cost of such future medical treatment, the necessity for which also is conjectural. While most probably recovery could have been allowed for the possibility of future medical expense, there is nothing in the present record to justify an amount for such award. The award will accordingly be reduced to omit this amount.

Plaintiff points out that through inadvertence the District Court failed to allow him the sum of $10 per week paid to a maid hired as a result of the disability of Mrs. Crowther caused by the accident, from October 4, 1954, through October 20, 1955. (Tr-232). The evidence is uncon-tradicted as to this loss. The award should be amended to allow plaintiff an additional $540 for this item.

Likewise, plaintiff urges that the District Court failed to allow him recovery for his personal injuries—the bruises of his ankle and knee, cut behind his right ear, and the stiffness and soreness sustained by him as a result of the accident. We feel that an award in the amount of $250 for these personal injuries would be in line with awards for similar injuries. See August v. Delta Fire & Cas. Co., La.App., 1 Cir., 79 So.2d 114.

Thus the award in favor of the plaintiff will be increased in these respects by a total of $790, whereas it is to be decreased in favor of defendant appellant b/ the total sum of $1,350 (see above). There is thus a net decrease in the amount of $560.

For the above and foregoing reasons, the judgment in favor of plaintiff is reduced by the net total sum $560; and as thus amended, is affirmed in all other respects.

Amended and affirmed.

ELLIS, J., dissents.

Rehearing denied; ELLIS, J., dissenting.


text:
    George Edward OLIVEIRA, Sr., for himself individually, and for and on behalf of his minor son, George Edward Oliveira, Jr., v. Robert James CROWTHER et al.
    No. 4420.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.
    Gilbert Bernstein, New Orleans, for plaintiff-appellee.
    Adams & Reese, New Orleans, Pugh, Lanier & Pugh, Thibodaux, for defendant-appellee.
   TATE, Judge.

The facts and legal issues are discussed in the companion case, Guidry v. Growther, La.App., 96 So.2d 71, rendered this date. For the reasons stated therein, the District Court correctly held appellant liable.

Appellants alternatively urge that the damages awarded were excessive.

The District Court awarded $700 for personal injuries, plus $42 of proven medical expenses, for “a complete fracture of the left 7th rib” from which young Olivei-ra suffered “a month and a half or two months, according to his testimony”. He stayed in bed two weeks at home as a result of the painful fracture.

The award is not manifestly excessive. See Rhymes v. Guidry, La.App. 1 Cir., 84 So.2d 634.

The judgment appealed from is affirmed.

Affirmed.

ELLIS, J., dissents.

Rehearing denied; ELLIS, J., dissenting.


author: McBRIDE, Judge.

text:
    HARDWARE MUTUAL CASUALTY COMPANY v. Frank BER, Doing Business As, Frank Ber Oldsmobile Company.
    No. 20868.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.

      Samuel S. Dalton, New Orleans, for plaintiff and appellee.
    Richard M. Mathews, New Orleans, for defendant and appellant.
   McBRIDE, Judge.

The plaintiff insurance company which carried comprehensive coverage on the 19S4 Oldsmobile automobile of Milford Friedrich, Jr., paid to its said insured the sum of $586.94, which allegedly represents the amount of damages sustained by the automobile. Plaintiff took from Friedrich a conventional subrogation of all claims which he may have against any person on account of said damage to the vehicle. Plaintiff brought this suit as Friedrich’s subrogee seeking to recover the amount of its payment to him, alleging that the automobile was damaged while in defendant’s possession and that defendant’s negligence was responsible therefor. Judgment was rendered in favor of plaintiff as prayed for and defendant appeals.

Friedrich purchased the car when new from defendant who is engaged in the automobile business and who also operates a service department in connection therewith. On August 16, 1954, at which time the car had been driven but 1,000 miles, the interior of the vehicle was damaged as a result of water or some other liquid having been applied in an attempt by defendant’s employees to clean the upholstery. Defendant answered the suit denying any and all liability and setting up several special defenses which need not be further alluded to. Nor is it necessary to discuss the exceptions filed by defendant.

We find the judgment to be clearly erroneous and it cannot be allowed to stand.

Friedrich had some negotiations with defendant with reference to the alleged damage, and it appears that defendant offered to install in the vehicle certain seat covers without charge which offer Friedrich accepted. Defendant did not carry these in stock and it was several weeks before their receipt from the manufacturer. In the interim Friedrich had a change of mind and refused to permit defendant to carry out the agreement to install the seat coverings in the car. Instead Friedrich contacted the Independent Appraisal Bureau and had that concern make a written estimate of the damage. Nothing in the record discloses the date on which the appraisal bureau examined the car, but there does appear in the transcript a certain estimate made by Independent Appraisal Bureau purportedly reflecting certain items of damage to the automobile in question together with the cost of parts and labor which aggregate the sum of $586.94. This estimate bears the date December 28, 1954, and thereon appears a notation that the speedometer of the automobile at the time showed it had been driven 10,686 miles. John D. Abadie, appraiser, made the estimate.

We do not know for whose account the Independent Appraisal Bureau acted in making the estimate of the damage, but, at any rate, Friedrich testified he received from the plaintiff a draft for the amount of the appraisal to cover his loss. However, a strange discrepancy exists which we believe should be mentioned in this connection. A photostatic copy of the subrogation and receipt Friedrich executed evidencing payment of the $586.94 by the insurer bears the date of August 16, 1954, which was on the day the alleged damage occurred.

Still another odd circumstance appears. Friedrich admits that after receiving the draft for $586.94 from his insurance company, he took the Oldsmobile to the establishment of Pontchartrain Motor Company and had the interior of the car repaired there. He insisted he did not remember the amount of the bill of Pontchartrain Motor Company for the work, but the record contains an invoice from that company reflecting that the job cost $79.26, which is dated February 19, 1955, and a notation appears that the mileage on the car as of that date was 12,461.

It might also be mentioned that neither the receipt and subrogation purportedly signed by Friedrich, the written estimate of Independent Appraisal Bureau, nor the bill of Pontchartrain Motor Company were ever offered in evidence.

There was no verbal argument before us as counsel submitted the matter on brief. In first considering the case we were of the opinion that perhaps Friedrich had not seen fit to have all the damage repaired and merely purchased seat covers from the Pontchartrain Motor Company in order to conceal the soiled and faded appearance of the seats rather than pay the expense of having the car re-upholstered. Of course, had he pursued this course he would have been perfectly within his legal rights.

However, Pontchartrain Motor Company repaired all damages to the automobile. Any doubt about this is dissipated by the testimony of Mrs. Friedrich who professed to know all about every important aspect of the case. She could or would not state the amount of the repair bill incurred with Pontchartrain Motor Company, but her testimony respecting the nature of the work runs thus:

“Q. Now, did Pontchartrain Motors repair the car? A. Yes, sir.
“Q. Did they repair it completely? A. To our satisfaction, they did.
“Q. And the Pontchartrain Motors completed their work and you accepted the car, were there still some damaged items in the upholstery? A. No.
“Q. All of the damaged items in the upholstery had been repaired ? A. As far as my eyes could see. Maybe somebody else’s eyes could see something else but as far as my eyes could see, it was all done.”

By virtue of the subrogation Fried-rich executed, plaintiff stood in his shoes and would be entitled to recover from the tort-feasor for all damages suffered by the car, but the subrogee was bound to prove the amount thereof with legal certainty to the same extent as though Friedrich had brought the suit. The amount paid by the insurer under the policy provisions to its assured is not the criterion. The estimate relied on by plaintiff was presumably made by Abadie, but neither this person nor any other witness whose testimony might have shown the correctness of the estimate was produced, and the only semblance of proof touching on this vital factor of the case emanated from Mrs. Friedrich who, referring to the estimate, stated “all of the parts there were damaged.” Furthermore, there is not one word of evidence in the record going to show that the amounts listed for the cost of parts and labor are reasonable, correct, or were necessary.

Even if there had been proof that the appraisal of the damage was true and correct as of the date the adjuster examined the vehicle, his estimate could not have served as a basis for a judgment for the simple reason the estimate of Independent Appraisal Bureau was apparently made four and one-half months after the date on which the accident is said to have occurred and at a time when the car had been driven an additional 9,000 miles. It is a matter of common knowledge that cushions and upholstery in an automobile deteriorate rapidly and a few months of added age to a car might well make considerable difference in the appearance of its interior. A recovery is to be measured by the amount necessary to repair the automobile and place it in the same condition as it was, such amount to be reckoned as of the date of the accident or some reasonable time thereafter. Four and one-half months afterward is an unreasonable time. See Sunseri v. Fabre, La.App., 92 So.2d 407.

For the reason above set forth, neither can the charges of Pontchartrain Motor Company for placing the car in a condition satisfactory to Friedrich be used as the basis for a judgment in plaintiff’s favor. The work was performed six months subsequent to the occurrence of the damage and after the vehicle had been driven almost 13,000 miles.

The instant case is almost identical with Royal Ins. Co., Limited v. Romain Motor Co., Inc., 10 La.App. 1, 120 So. 261, 262, which was a suit brought by an insurer-sub-rogee for damages, wherein we said:

“ * * * There is in the record no substantial proof of any damage to the motor, and the mere fact that an insurance company sees fit, in adjusting a loss with its assured, to agree with him on an arbitrary amount, not based on actual proof, does not render the party responsible for the loss liable for that amount, or, in fact, for any amount not actually proven. * * * ”

For the reasons above assigned, the judgment appealed from is reversed, and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed at its cost in both courts.

Reversed.


author: JANVIER, Judge.

text:
    Harold MEYNIER v. William H. PALERMO.
    No. 20931.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.
    Malcolm L. de la Houssaye and Lewis R. Graham, New Orleans, for plaintiff-appellee.
    Ernest J. Robin, New Orleans, for defendant-appellant.
   JANVIER, Judge.

Plaintiff, Harold Meynier, a painting contractor, brought this suit for $192. against William H. Palermo, one of the members of a partnership — Palermo and Oalmann — which partnership was engaged in the general contracting business and, as general contractors, had constructed a residence for Mrs. James K. Howies.

Although the partnership was the general contractor, one of the partners, Palermo, executed in his own name a subcontract under which the plaintiff Meynier undertook to do the painting and interior decorating in accordance with the plans and specifications.

Meynier complied with the terms of his contract and was paid the full contract price.

It then developed that there was a defect in the building in that, according to the architect, “the head room at the landing of the staircase was not sufficient,” and, after consultations between the architect, the contractors, and a representative of the owner, it was agreed that the necessary correction would he made and the record indicates that the architect, Mc-Cullar, agreed that he would pay the necessary cost of making the change.

When the construction change had been made, it was necessary that the new work be repainted and repapered and Palermo discussed the matter with the plaintiff, Meynier, and it was agreed that Meynier would do the repainting and repapering which had become necessary. This was done, and Meynier says that he was told by Palermo that, inasmuch as the architect, Myrlin McCullar, had agreed to be responsible for the cost, he should send his bill to McCullar, and Meynier prepared a bill for $65 and says that he sent it to Palermo for delivery to McCullar. Meynier admits that he made his bill out against McCullar, but says that he did so only because Palermo asked him to do so but that he at no time agreed that he would look to McCullar for payment inasmuch as he contends that he was employed by Palermo and intended to look to him for payment.

This bill was not paid, but it developed that the paper with which the new work was done did not exactly match the paper of the other part of the job and the owner refused to accept it. Accordingly it was agreed that Meynier would repaper the entire wall and ceiling, and he did this and then again prepared a bill against McCullar, this time for $160, and says that he sent it to Palermo for delivery to McCullar. Palermo says that Meynier did hot send either bill to him but sent them both directly to McCullar.

The second bill was not paid and this suit has resulted.

In the First City Court of the City of New Orleans there was judgment as prayed for for $192 in favor of Meynier and against Palermo, who has appealed sus-pensively.

It is not denied that Meynier did the re-' painting and repapering, but it is contended that it was understood that payment would be made by the architect Mc-Cullar and that Meynier would look to him alone. It is further contended that, in any event, Palermo should not be called upon to make payment, for the reason' that when he discussed the matter with Meynier and asked him to do the necessary repainting and repapering, he was not acting in his individual capacity but was acting for and representing the partnership, Palermo and Oalmann, and that, therefore, if there is any liability for the reemployment of Meynier, it is in the partnership and not in Palermo. And finally it is contended that if there is any liability in anyone, the amount of the indebtedness is not $192 and has not been definitely fixed in any agreement either verbal or in writing.

We think that the evidence is convincingly to the effect that Palermo did not state to Meynier that he was to look to McCullar and that, since it was Palermo who entered into the first contract which was in writing, Meynier, in the absence of a clear understanding to the contrary, was justified in believing that when Palermo asked him to do the necessary repainting and repapering, he was acting in the capacity of general contractor in which he had acted in making the original contract. And there can be no doubt at all that, when a general contractor employs a subcontractor to do any part of the work, the subcontractor looks to the general contractor for payment and the general contractor looks to the owner. It may well be that McCullar, the architect, is liable to Palermo for this indebtedness, but if he is so liable, then Palermo may look to him for such amount as he may be required to spend.

Palermo is liable to Meynier for the cost of doing the repainting and re-papering, but the record does not justify a judgment for $192. Meynier says that the oral agreement entitled him to this amount. However, when, at the request of Palermo, he prepared a bill for this work, he fixed the amount thereof at $160, and it was only when he found it necessary to 'bring suit that he added an additional $32, which he says represented a profit of 20% on the oral contract price.

The record does not justify this additional amount.

The judgment appealed from is amended by the reduction of the amount awarded to $160 and, as thus amended, it is- affirmed; plaintiff-appellee to pay costs of appeal ; defendant to pay all other costs.

Amended and affirmed.