author: HAMLIN, Justice ad hoc.

text:
    232 La. 28
    Wilson CHRISTO et al. v. EAGLE STAR INSURANCE COMPANY, Ltd.
    No. 42885.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Robert C. Taylor, Jimmie R. Major, Baton Rouge, for plaintiff-appellant.
    Huckabay & Wall, Baton Rouge, for def endant- app ellee.
   HAMLIN, Justice ad hoc.

Plaintiffs appeal from a judgment of the trial court, which disallowed their claims for damages resulting from an automobile collision and for attorneys’ fees.

The record discloses that on November 30, 1954, Wilson Christo, of Wakefield, Louisiana, purchased a new 1954 Mercury Custom Four-Door automobile from Audubon Motors, Inc., of Baton Rouge, Louisiana. After allowance for trade-in and a cash down payment, the original price of $3,254.56 was reduced to a balance of $1,905. The E. J. Gonzales Finance Co., of Baton Rouge, Louisiana, financed this amount, for which it held a chattel mortgage and a negotiable promissory note of Wilson Christo. The automobile was insured against collision by the Surety Insurance Agency, Inc. — Eagle Star Insurance Co., Ltd. being the real insurer.

It is admitted by all parties litigant that Wilson Christo permitted his cousin, Johnnie Lee Jackson, a minor of 20 years, to buy the car in his name. Since Jackson was a minor he was unable to contract for the purchase of an automobile, but he furnished the trade-in car and paid the cash, down payment.

These facts were known by Audubon Motors, Inc., and the salesman handling the transaction assisted Jackson in having his cousin, Christo, sign the application papers. The representatives of Gonzales Finance Company, likewise, knew that Jackson was a minor. The purchaser’s statement given to the E. J. Gonzales Finance Company specifically stated that Johnnie Lee Jackson would use and pay for the car.

The collision insurance coverage was negotiated by telephone. Mr. Gene Knight, Collection Manager of E. J. Gonzales Finance Company, conveyed the necessary information to Mrs. Sue Dwyer, Office Manager of the Surety Insurance Company, and the testimony is disputed as to whether Mr.' Knight told Mrs. Dwyer that the automobile would be driven by a minor. The testimony of the insurance company representatives is to the effect that had the true facts and circumstances been revealed, the company would never have issued the policy for the period 12/1/54 to 6/1/56 and accepted a premium of $143. The company witness stated that where drivers are under twenty-five years of age, the risk is affected.

Be that as it may, the policy was issued in the name of Wilson Christo, and the State of Louisiana, Department of Revenue, Motor Vehicle Division, issued a certificate of title to Wilson Christo on December 13, 1954.

Johnnie Lee Jackson took over control of the car and almost demolished it in a collision with another vehicle on December 24, 1954. Christo submitted a claim for damages, and the matter was referred to the General Adjustment Bureau, Inc. Liability was denied on March 25, 1954, and Wilson Christo and the finance company then brought the present suit.

In denying recovery, the trial judge said:

“I am of the opinion that plaintiffs are not entitled to recover under the policy of insurance issued by defendant for the reason that it was obtained by material misrepresentations, made with intent to deceive, and made by one acting as the agent of each of th« plaintiffs.”

We have presented for our determination the questions of whether plaintiffs made material misrepresentations, and, if such were made, were they made with intent to deceive.

LSA-Revised Statutes 22:619 provides, m part:

“A. * * * no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.”

In the case of New Zealand Insurance Co., Ltd. v. Holloway, D.C., 123 F.Supp. 642, 645, the above section was interpreted as follows:

“Under Louisiana law, no material misrepresentation or warranty made in the negotiation of an insurance contract shall be deemed material or defeat or void the contract unless the misrepresentation or warranty was made with intent to deceive. LSA-R.S. 22:619.
“The converse of (1) above is true, and if the misrepresentation was material and if it was made with intent to deceive, such misrepresentation will void the contract of insurance.
“The defendant Holloway, when he accepted the policy of insurance with full knowledge of its contents, and this he is presumed to have done, adopted as his own all the representations and warranties therein contained.”

Audubon Motors, Inc. and E. J. Gonzales Finance Company speculated as to recovery on the note held by the finance company. They knew full well that Christo was the obligor if any default occurred, and that legal proceedings would have to be taken against him and the car. Jackson’s responsibility to make the monthly payments was a private agreement between him and Christo. To the world, Christo was the owner of the car, and his financial responsibility was the concern of the finance company and Audubon Motors, Inc., not that of the insurer.

The insurer’s only concern was the fire, theft, and collision coverage of the car and the payment of the premium, for which payment it looked to the finance company. Any representation made as to the owner of the car was not material in this case. The testimony of record discloses no intention on the part of the finance company to deceive the insurer as to the real owner. All papers were available for the insurer’s inspection, but insurance was issued as the result of a telephonic conversation. The insurer cannot complain about the fact that Jackson was the driver of the car at the time of the accident and up until that time had been the only driver, because it is stated in the coverage as follows:

“Definition of Insured With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and also includes any person while using the automobile and anf person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * * ” (Emphasis ours.)

Therefore, we find no intent on the part of the motor company and the finance company to deceive the insurer as to the driver of the car, because by its own terms the contract stated that one other than the insured could drive the car with the insured’s consent. If Christo had been the real owner, in fact as well as in name, he could have permitted Jackson to drive.

A distinction is made between “Health and Accident Insurance” and “Vehicle Insurance” in Sections (2) and (3) of LSA-Revised Statutes 22:6. This distinction is recognized in Section B of LSA-Revised Statutes 22:619, as follows:

“In any application for life or health and accident1 insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”

For the reasons assigned, the judgment of the trial court is reversed and set aside, and it. is now ordered that this case be remanded to the trial court for determination of the actual damages suffered by plaintiffs and their right to attorneys’ fees.

HAWTHORNE, J., absent.


source: Caselaw Access Project

author: PONDER, Justice. McCALEB, Justice

license: Public Domain

text:
    232 La. 35
    STATE of Louisiana v. Arthur Mack HARRELL.
    No. 43172.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      . .Gravel, Humphries, Sheffield & Man-sour, Alexandria, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Sam L. Wells, Dist. Atty., Colfax, for appellee.
   PONDER, Justice.

The defendant has appealed from a conviction of negligently killing one John Keen and from a sentence thereunder of one year in the state penitentiary.

Although the defendant is relying on four bills of exception, we think the most important bill is the one taken to the overruling of a motion for a new trial based on the ground that there is no evidence of criminal negligence in the record to support the conviction.

The record shows that the defendant, a boy of 17, struck and killed a seven year old boy while driving along the highway to Winnfield. The defendant had been sent by his mother to get his aunt to help attend his father who was lying on his death bed in a coma. According to the evidence, the defendant was driving behind a Plymouth and saw the child standing on the other side of the road on the left shoulder. There was a Ford approaching from the other direction. The defendant testified that he slowed down and seeing no motion on the part of the child to cross, as the Ford approached he increased his speed. As the Ford passed the defendant, the child darted out behind the Ford and defendant struck and killed the boy.

The record shows that the defendant was travelling at a reasonable speed and slowed down to 25 miles per hour, he then accelerated his speed to between 35 to 40 miles per hour. The three eyewitnesses to the accident, the defendant, the driver of the Ford, and the sister of the deceased, all testified that as the defendant approached the child was standing on the shoulder of the road and showed no sign that he would cross until the Ford passed at which time he was well out of the line of vision of the defendant.

Much is said in the brief of the state filed in this court about a statement that the defendant made to the coroner’s jury to the effect that he speeded up to get by before the child came across.

Skid marks of the defendant's car measured 130 feet and the record shows that these skid marks were evident for 95 feet before the impact. There is no evidence that the brakes were not working satisfactorily.

A police officer testified that the defendant told him right after the accident that he saw the child, slowed to twenty miles per hour, then thinking that he could beat the child across the road, defendant stated to him that he speeded up. But the eyewitnesses to the accident all testified that the child was standing on the side of the road and made no move or took no step to cross until the Ford had passed.

We think that what the defendant meant in his statement before the coroner’s jury and to the police officer is that he - was being cautious and when he saw a child standing on the shoulder of the road with the Ford coming from the other way he speeded up thinking that the child would remain there. This may have been an error of judgment but it is not criminal negligence so as to warrant a conviction.

The term criminal negligence is defined in Article 12 of Title 14 of the Criminal Code, LSA-R.S. 14:12 thus: “Criminal negligence exists when, although neither specific nor general intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”

The trial judge concluded that the defendant had no brakes and speeded up to beat the child across the road and this he says is criminal negligence. But these conclusions are not borne out by the record. The -fact that the defendant skidded 95 feet before the impact and 130 feet in all proves that the car did have brakes and the conclusion that the defendant speeded up to beat the child across the road is unfounded in view of the testimony of the eyewitnesses to the accident that the child did not attempt to cross until he was out of the line of vision of the defendant by the passing of the Ford. There is no doubt that the defendant’s was a poor choice of action but it does not meet the test of criminal negligence defined in Article 12 of Title 14 of the Criminal Code and in State v. Dean, 154 La. 671, 98 So. 82, 83 as “A dereliction of duty under circumstances showing an actual intent to injure, or such a conscious and intentional breach of duty as to warrant an implication that the injuries were intended.”

We are apprised of the line of distinction set out in the cases between an insufficiency of evidence and a total lack of evidence of the fact or facts required to prove the guilt of the party accused. State v. Martinez, 201 La. 949, 10 So.2d 712; State v. Tucker, 204 La. 463, 15 So. 2d 854 and the cases cited therein. But where there is no evidence at all tending to prove a ‘particular .fact which is essential tó a valid conviction this court will set aside the conviction for want of proof of the guilt of the defendant. State v. Wells, 147 La. 822, 86 So. 268; State v. Edwards, 155 La. 305, 99 So. 229; State v. Gani, 157 La. 231, 102 So. 318; State v. Giangosso, 157 La. 360, 102 So. 429; State v. Dunnington, 157 La. 369, 102 So. 478; State v. Wilson, 196 La. 156, 198 So. 889; State v. Rogers, 152 La. 905, 94 So. 439; State v. Bush, 156 La. 973, 101 So. 382; State v. Gremillion, 160 La. 121, 106 So. 716; State v. Russell, 161 La. 167, 108 So. 324; State v. Daniels, 164 La. 737, 114 So. 636; State v. Singley, 195 La. 519, 197 So. 218; State v. Nomey, 204 La. 667, 16 So.2d 226; State v. Wooderson, 213 La. 40, 34 So.2d 369; State v. Brown, 224 La. 480, 70 So.2d 96 (and cases cited therein).

For the reasons assigned, the conviction and sentence are annulled and set aside and the defendant is hereby ordered discharged.

HAMITER, HAWTHORNE and SIMON, JJ., concur in the decree.

McCALEB, Justice

(dissenting).

This Court is without jurisdiction of questions of fact in criminal cases (see Section 10 of Article 7 of the Constitution) ; it is only where there is no evidence at all that we are authorized to set aside a conviction for want of proof of guilt. While the majority opinion recognizes that this is the law, it does not appear to me that it has been followed in this case for, concededly, since the killing resulted from defendant’s act in striking the child with the automobile, the question of whether defendant was criminally negligent was purely one of fact. And,, in view of defendant’s statement at the-Coroner’s inquest (which was admitted in evidence) that, when he first observed' the child, he slowed to 20 miles per hour but, subsequently, when he saw that the child had stopped, he speeded up to 35 or 40 miles per hour, it can hardly be said that there was not some evidence submitted from which a finding’ of criminal negligence could be deduced. In addition, a police officer stated that defendant told him that he speeded up because he thought he could beat the child across the road and the physical fact that the car skidded almost 100 feet is evidence of defendant’s lack of control.

But, even if there was no evidence to sustain the conviction, defendant should not be discharged; he should be given a new trial as it was only by virtue of his motion for a new trial that the question of lack of evidence could be considered.

I respectfully dissent.


text:
    232 La. 42
    J. Monroe BAMBER v. Patrick D. MAYEUX.
    No. 41296.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Gravel, Humphries, Sheffield & Mansour, Alexandria, for appellant.
    C. E. Laborde, Jr., Marksville, for plaintiff-appellee.
   HAMLIN, Justice ad hoc.

Defendant appeals from a judgment awarding plaintiff the sum of $2,271.50 claimed under an alleged oral contract, which is an amount in addition to the sum of $8,370 paid to plaintiff under a Veterans Administration loan for building defendant’s residence.

The trial judge correctly states the facts adduced from the evidence as follows:

“* * * When plaintiff was .approached by the defendant with a request that he was desirous of having him submit a bid for the construction of his home according to his plans and specifications, he did so, and' thereafter informed defendant he could or would construct it for the sum of $10,-475.00. According to plaintiff’s testimony, at the time he commenced the construction of it, he knew not whether the defendant had the money or from whom he w.as to obtain it nor did he know how it was to be financed but depended on defendant’s financial responsibility for payment. It was only after the work had begun that he was informed by defendant that he was going to apply for a loan with the Veterans Administration, but that he was going to have the home built independently of whether or not the loan would be made through the Veterans Administration. According to plaintiff’s testimony, he immediately began construction of it and after having completed the foundation entailing an expenditure of approximately $1,800.00 for labor and material necessary therefor, the defendant informed him that the Veterans Administration would not consent to make him a loan in excess of $8,370.00, contrary to what he applied for, to-wit: the sum of $10,475.00, and for which he had contracted with defendant. * * * defendant admitted the dwelling home was built in the same manner as originally called for in the plans and specifications, for which he had agreed to pay this latter sum.
* * * * * *
“On the trial of this case the defendant admitted that he had entered into an oral agreement with plaintiff to pay him the difference between the sum of $10,475.00 and the amount which he received from the Veterans Administration, to-wit: the sum of $8,370.00, and additions in the sum of $166.50 requested by defendant.
“* * * Mr. Charles A. Riddle, Jr., an attorney of the local bar, * * * testified he was the attorney who represented the Veterans Administration during the closing of this loan and * * looked after all the legal matters, such as the recordation of the mortgage affecting the security given on November 19th, and a mortgage * * * executed in favor of Mr. Carl A. Gray, Jr., as Administrator of Veterans Affairs, dated June 30, 1951, and that following this, the entire transaction was consummated in his office and at the time the Veterans Administration’s check was given to the plaintiff, in payment of the services rendered by him, the defendant was present and he openly admitted owing the plaintiff the difference, which in accordance with Mr. Riddle’s testimony was .around the sum of $2,000.00, more or less, but he does not remember the exact figure. According to Mr. Riddle’s testimony, both the plaintiff and defendant were in perfect accord. The defendant also admitted having consulted an attorney-at-law from the Alexandria bar, in the person of one Vincent Hazelton, and that after discussing the matter with him, he authorized his attorney (Mr. Hazelton) to attempt to effect a settlement with plaintiff by paying the amount of $2,275.00 on condition the defendant would deduct the sum of $166.50, which said amount he claimed to be required to make certain repairs and corrections on the home. Defendant also admits that he promised to pay the amount to plaintiff’s attorney, which promise was made quite some time after the loan transaction had been completed. Thus, the Court finds that the defendant in this cause, prior to the time of any negotiations between defendant and the Veterans Administration, promised to pay plaintiff $10,475.00 for the construction of a dwelling; that after said dwelling was constructed and a Veterans Administration direct loan was consummated between defendant and the Veterans Administration, defendant promised to pay the amount claimed by plaintiff in this suit to plaintiff in the office of the loan closing attorney, Mr. C. A. Riddle, Jr.; that after the dwelling had been completed and the above loan had been consummated, defendant, through his then attorney Mr. Vincent Hazelton, promised to pay said amount claimed in this suit to plaintiff’s attorney and defendant himself admits that he promised to pay said amount to plaintiff’s attorney, which latter promise was also made subsequent to the closing of the Veterans Administration loan. * * * ”

To plaintiff’s petition, defendant filed exceptions of no cause and no right of action, which were overruled.

The Veterans Administration filed an intervention to have plaintiff’s suit dismissed on the grounds that the oral contract sued upon was null and void, being in contravention of federal laws and regulations.- Section 512 of the Servicemen’s Readjustment Act of 1944, as amended, Public Law 346, 78th Congress, 38 U.S.C.A. § 694Í.' Plaintiff’s exception of no cause and no right of action was sustained, from which action no appeal has been taken.

After the case was tried on its merits, the trial judge concluded that plaintiff had proved a valid claim, such not being pro-, hibited nor stricken with nullity by the Servicemen’s Readjustment Act, Public Law 475, 81st Congress, 38 U.S.C.A. § 693 et seq.,- and Article 1892 of the LSA-Civil Code.

The same issues are raised on this appeal as were urged in the trial court. Defendant contends that the subsequent contract contravenes positive law, and plaintiff argues that the contract is supported by a moral obligation. Plaintiff also contends that the loan secured by the defendant was a direct loan, and that it is not subject to the strict provisions of the guaranteed loan.

In 38 U.S.C.A. § 694a (a) (3), it is provided :

“That the price paid or to be paid by the veteran for such property or for the cost of construction, repairs, or alterations does not exceed the reasonable value thereof as determined by proper appraisal made by an appraiser designated by the Administrator.”

The above section is found under the title, “Loans for homes; amount of guarantee.” The mandate is that there must be a compliance with Section 694a(a) (3) for the serviceman to secure a guarantee of his loan.

In 38 U.S.C.A. § 6942(d), we find:

“The Administrator is authorized to sell, and shall offer for sale, to any private lending institution evidencing ability to service loans, any loan made under this section at a price not less than par; that is, the unpaid balance plus accrued interest, and may guarantee any loan thus sold subject to the same conditions, terms, and limitations which would be applicable were the loan guaranteed under 694a(b) of this title.”

We cannot find any distinction between the provisions with respect to appraisement for guaranteed loans and those for direct loans. As we see it, the difference between a direct loan and a guaranteed loan is that in one instance the government is the direct lender and in the other it guarantees the loan. The risk is the same. The difference is that the government parts with the use of its money in a direct loan, and a public lending agency actually loans the money in a guaranteed loan. If the veteran defaults on a direct loan, the government loses its money; if he defaults on a guaranteed loan, then the government pays. It follows that in either case the Federal Government protects itself to the extent of demanding that the loan not exceed the appraised value of the property.

The case of Karrell v. United States, 9 Cir., 181 F.2d 981, 983, presents a factual situation similar to that herein contained. Under a guaranteed plan, the veteran promised to pay two amounts — the appraised value and an additional amount. Karrell, a promoter, was criminally charged and found guilty under Sections 697 and 715 of Title 38 U.S.C.A. The United States Court of Appeals, Ninth Circuit, stated:

“It will be seen that there is no prohibition in § 694a against the purchase of a housing unit for more than is borrowed provided the appraisal is equal to the money borrowed plus the amount paid in addition thereto.
* * * * * *
“It may be argued that since congress did not make it illegal for a veteran upon his own volition to pay more for a house unit than its appraisal value, it follows that the sum paid above the appraisal cannot be considered as a loss by the veteran. But the deal from start to finish is one under governmental paternal help to a person who has been taken from the normal pursuits to service for his country in a time of stress. He was entitled to the full protection of the statute and it is no far cry to hold that the sum paid to appellant outside of escrow does represent, at least in round numbers, the amount of money the veteran paid over and above the amount he would have paid had the purchase not been tinted by the methods used to conceal the actual facts.”

The above principle was upheld by the Supreme Court of California in Young v. Hampton, 36 Cal.2d 799, 228 P.2d 1, 4, 19 A.L.R.2d 830, by the following statement:

“ * * * By section 694a of that statute, the government endeavors to assure terms of payment which bear a proper relation to the veteran’s present and anticipated income and expenses. The requirement of the same section that the price to be paid by the veteran for-'the -cost of construction shall not exceed the reasonable value ás established by a designated appraiser was obviously enacted to protect the borrower from acquiring property at an exhorbi-tant price. That this was the legislative intent is manifest from the discussions at the time enactment of the statute was being considered. (Congressional Record, Vol. 90, Pt. 4, p. 4649 (May 12, 1944, to June 12, 1944).
“ * * * a contract which is contrary to the policy of the Servicemen’s Readjustment Act is also unenforceable. To hold otherwise would invite builders to exact similar secret contracts with the assurance that they would be upheld.”

See, also, Diamond v. Willett, La.App., 37 So.2d 338.

In view of the above jurisprudence, we find that the contract entered into between plaintiff and defendant, for an additional amount to be paid to plaintiff on the building contract herein involved, was in violation of the Servicemen’s Readjustment Act, supra, and cannot be enforced.

“The courts have, without exception, held that the security or other advantage given contemporaneously, prior, or subsequent to the execution of such a scaledown agreement in addition to the amount to be received by the creditor from the federal loan agency is void, being in contravention of law and against public policy. * * * ” Federal Farm Mortgage Corporation v. Hatten, 210 La. 249, 26 So.2d 735, 738.

In view of our determination under Servicemen’s Benefits, there is no need to discuss the other issues raised in this case.

For the reasons assigned, the judgment of the trial court is reversed and set aside, and it is now ordered that plaintiff’s suit be dismissed at his cost.

FOURNET, C. J., and SIMON, J., absent.

      . 38 U.S.C.A. § 694a(b) provides:
      “Any loan made under this subchapter' to a veteran who has not, after April 20, 1950, availed himself of the benefits of this subchapter for the purpose of purchasing residential property or constructing a dwelling to be occupied as his home, the proceeds of which loan are to be used for that purpose, may, notwithstanding the provisions of subsection (a) of section 694 of this title relating to the percentage or aggregate amount of loan to be guaranteed, be guaranteed, if otherwise made pursuant to the provisions of this sub-chapter, in an amount not exceeding sixty- per centum of the loan: * * * ”


author: SIMON, Justice. PER CURIAM.

text:
    232 La. 53
    STATE of Louisiana v. Joseph SHEFFIELD.
    No. 43126.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      Warren Hunt, Rayville, Joseph S. Guer-riero, Monroe, for appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Harry N. An-ders, Dist. Atty., Winnsboro, for appellee.
   SIMON, Justice.

Joseph Sheffield has appealed to this Court from his conviction and sentence to death for the crime of murder and relies upon eleven bills of exception for -the reversal thereof.

The accused was indicted on June 17, 1953, by the grand jury for Franklin Parish for the murder of John L. Waller on June 14, 1953, and was duly arraigned. ■ His offer to plead guilty to the said charge was refused by the trial court, and counsel was appointed to represent and assist him in his defense, and his trial therefor was regularly set for June 29, 1953, in the Fifth Judicial District Court. The jury returned a verdict of “Guilty as charged” against the said accused; and, on July 3, 1953, he was sentenced to death. No appeal was perfected from said verdict and sentence.

On November 3, 1954, counsel, . other than those initially appointed, in behalf of the defendant instituted a habeas corpus proceeding in the Federal Court for the Western District of Louisiana at Monroe, Louisiana. United States ex rel. Sheffield v. Waller, 126 F.Supp. 537. In response to this application a writ of habeas corpus was issued, ordering the Fifth Judicial District Court and the sheriff of Franklin Parish to grant the defendant a new trial within six months from the finality of said judgment or to release him.

The State of Louisiana, after exhausting all remedies before Federal appellate tribunals, filed an application on January 12, 1956, for an extension of time within which to try the defendant. The Federal District Court in Monroe thereupon issued an order amending its original judgment granting to the State of Louisiana an extension of 90 days, commencing January 18, 1956, for the retrying of the defendant,' “said extension to continue so long thereafter as is necessary to complete the prosecution, provided said prosecution is carried forthwith with due diligence”.

On March 19, 1956, the defendant was again tried for the crime charged, found guilty thereof and sentenced to death.

The bills of exception reserved at the second trial of the defendant are now before us for review.

Bill of Exception No. 1 was reserved to the overruling by the court of the motion by the accused for a change of venue.

Defendant contends that, by reason of prejudice existing in the public mind against him growing out of publication of articles and news items by the press concerning the trial and this charge, the citizens of Franklin Parish, wherein the crime was committed, had become so inflamed and prejudiced against him that it would be impossible to obtain an unbiased jury before whom a fair and impartial trial could be had as is guaranteed by the State and Federal constitutions.

A lengthy trial of and an exhaustive inquiry into this motion for change of venue was had. The defendant produced 18 witnesses and various newspaper articles in support of his contention. The State produced 31 witnesses. The evidence attached to this bill includes photostatic copies of newspapers available to the inhabitants of Franklin Parish which carried informative news accounts of this case. Our examination of the photostatic copies of the newspapers offered in evidence convinces us of the correctness of the trial judge’s conclusion. And, as stated in the judge’s per curiam, the newspaper coverage was not appreciably different from that ordinarily given by newspapers to comparable crimes, more particularly as is commonplace in the rural parishes of this state.

We can not conceive of the peaceful and law-abiding people of this state reading accounts of the crime of murder within their immediate vicinity without experiencing some, measure of resentment against such violence. But we look in vain for evidence of bias, or prejudice, or inflamed passion such as would violate or prejudice the constitutional and inviolate rights of the accused.

There is ample evidence in the record to show that the accused could obtain a fair and impartial trial in Franklin Parish. At no time from the date of the commission of the crime charged and at no time during the course of his trial had there been any evidence of antagonism, bitterness, rancor, or any feeling of hostility shown or demonstrated against the person of the defendant. Significant is the fact that almost two and one-half years had elapsed between the date of the crime charged and that of this trial.

Notwithstanding the positive testimony of the witnesses and the per curiam of the trial judge that the defendant could receive a fair trial in this court, counsel for defendant contended the contrary, based on his personal opinion and on his personal “feeling” of alleged resentment against Judge Ben C. Dawkins, Jr., for having given the defendant herein a new trial. Personal opinions and feelings of counsel can not be employed as a substitute for basic law and fact.

A close scrutiny of the record convinces us that the trial judge did not abuse his discretion in denying a change of venue. An application for a change of venue is addressed to the sound discretion of the trial court. State v. Roberson, 159 La. 562, 105 So. 621; State v. Collier, 161 La. 856, 109 So. 516; State v. Washington, 207 La. 849, 22 So.2d 193; State v. Leming, 217 La. 257, 46 So.2d 262; State v. Johnson, 226 La. 30, 74 So.2d 402; State v. Swails, 226 La. 441, 76 So.2d 523.

We find no merit in Bill of Exception No. 1.

Bills of Exception Nos. 2, 3 and 4 were reserved to the ruling of the trial judge refusing to sustain challenges for cause of prospective jurors made by the defendant to their respective qualifications.

Bill of Exception No. 2 challenged the qualification of pi'ospective juror Roy A. Stewart, who stated on his voir dire examination that he had formed an opinion as to the guilt or innocence of the defendant, but that said opinion was not fixed, had not been deliberately formed and could be changed by evidence; that he could disre’-gard his opinion and try the case strictly-on the evidence as he heard it from the-witnesses and apply the law as charged by the court to said evidence; that he had no bias or prejudice either for or against the accused; that he could render a fair and impartial verdict both as to the State and.' the accused.

Bill of Exception No. 3 challenged the qualification of prospective juror Waiter-Huff who, in his voir dire examination, testified that he had known the defendant and the deceased for about ten or twelve years, but that this acquaintanceship would' not influence him on the trial of the case;that he had formed some opinion as to the guilt or innocence of the defendant from what he had read and heard about the case, but that such opinion was not of a fixed nature and would yield to the evidence; that he was a personal friend of Sheriff Hiram Waller, a brother of the deceased, but that he could completely disregard his friendship with Sheriff Waller and decide the case strictly on the evidence as he heard it from the witnesses.

The well-settled law and jurisprudence of this state relative to the above challenges has been stated by us in the case of State v. Henry, 200 La. 875, 9 So.2d 215, 219:

“It is specifically declared in the Code of Criminal Procedure that a partial juror may be challenged for cause ‘but an opinion as to guilt or innocence of the accused, which is not fixed, or has not been deliberately formed, or that would yield to evidence,, or that could be changed, does not disqualify the juror.’ Article 351. It is only where a prospective juror’s opinion as to the guilt or innocence of the accused is so fixed that it would influence his verdict that he may be considered disqualified because of such-opinion and challenged for cause. State v. Brette, 6 La.Ann. 652; State Carriere, 141 La. 136, 74 So. 792; State v. Scruggs, 165 La. 842, 116 So. 206; State v. Carter, 167 La. 1080, 120 So. 864; State v. Flores, 169 La. 22, 124 So. 132. Even though he has formed an opinion as to the guilt or innocence of the accused from discussions participated in or from reading about the same in the newspapers, the prospective juror is competent if, having no prejudice against the accused, he can lay aside that opinion. Particularly is this so where he states under oath that he is able to and will try the case only on the evidence adduced during the course thereof. State v. Roberson, 159 La. 562, 105 So. .621. Furthermore, a prospective juror’s competence or incompetence cannot be limited to isolated answers given during the course of his examination. It must be judged from his entire examination. State v. Ford, 42 La.Ann. 255, 7 So. 696; State v. Rodriguez, 115 La. 1004, 40 So. 438; State v. Owen, 126 La. 646, 52 So. 860; State v. Briggs, 142 La. 785, 77 So. 599.” See, also, State v. Brazile, 229 La. 600, 86 So.2d 208.

In the case of State v. Atwood, 210 La. 537, 27 So.2d 324, 326 we held:

“The law is perfectly clear, as set forth in Article 351 of the Code of Criminal Procedure, that the relations, whether by friendship or enmity, between a prospective juror and the person injured are such that it must be reasonably believed that they would influence the juror in coming to a verdict, before a prospective juror is disqualified because of such acquaintance. * * *” See, also, State v. Wideman, 218 La. 860, 51 So.2d 96.

We find no merit in Bills of Exception Nos. 2 and 3.

Bill of Exception No. 4 challenges the qualification of prospective juror Jesse J. Hatton, who, on his voir dire examination, testified that he had formed an opinion as to *he guilt or innocence of the accused from what he had heard and read 'about the case, but that such opinion was not of a fixed nature and would yield to the evidence adduced at trial. Hatton was further challenged because, before it was known that he would be as prospective juror, he was summoned by the State and testified on the trial of the motion for a change of venue. We find nothing involved in the examination of this prospective juror on the trial of the motion for change of venue that would disqualify him as a juror; neither has the defendant pointed to anything of that nature.

Article 351 of the Code of Criminal Procedure, LSA-R.S. 15:351, sets forth the special causes for which a juror may be challenged, and the cause urged in this bill is not found therein. For this reason, as well as for the reasons set forth in Bills of Exception Nos. 2 and 3, we find no merit in-Bill of Exception No. 4.

Bill of Exception No. 5 was reserved to the overruling of a plea to the jurisdiction of the Fifth Judicial District Court. This plea is based on the contention that the United .States District Court for the Western District of Louisiana was without authority to amend its original judgment signed on January 10, 1955, ordering ’ the sheriff and other officials of Franklin Parish to try the defendant within six months from the finality of said judgment or to release him and by said amendment extend the time during which the accused could be tried. Defendant contends that the six-month period during which the Franklin Parish court had a right to try the defendant expired on January 10, 1956; that the application for an extension of time filed by the State on January 12, 1956 was filed too late and that thereby the Franklin Parish court lost the right to try the defendant and was bound to release him.

The State contends that the said judgment was not final until such time as it had exhausted its recourse to the appellate Federal courts, and that the finality of the said-judgment of the writ of habeas corpus became final on December 12, 1955, the date on which the Supreme Court of the United States denied the State of Louisiana leave to file a petition for writ of certiorari in that Court; United States ex rel. Sheffield v. Waller, 350 U.S. 922, 76 S.Ct. 217, 100 L.Ed. 807 that notwithstanding this fact, the State, in an abundance of caution applied to the Federal court for an extension of time in which to try the said defendant, which time was extended for 90 days, commencing January 18, 1956.

To support the contention that Judge Ben C. Dawkins, Jr., had no authority to grant said extension of time, defendant cites the provision of 28 U.S.C.A. § 2243, which section of the United States Code specifically refers to the issuance of the writ of habeas corpus and provides:

“The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.”

We find no law, and the defendant has failed to cite any law or jurisprudence to sustain his position that this Codal Article of the United States Code prohibits the order granting the extension of time herein complained of. It is our opinion that by virtue of the power granted by said Article, the United States District Court for the Western District of Louisiana had a right to dispose of the matter presented in the habeas corpus proceeding by fixing a time limit within which the accused must be retried or discharged, and, further, to amend said order extending said time limit, as within his discretion law and justice require. In compliance with said order, the defendant herein was brought to trial on March 19, 1956, within the time limit, as extended.

We find no merit to Bill of Exception No. 5.

Bill of Exception No. 6 was reserved to the overruling by the trial judge of the objection made by defendant to a question propounded by the district attorney on the redirect examination of a witness, Mrs Addie Hudson. The question was:

“Q. If Homer Hodge testified that he did not grab the gun in Sheffield’s hands until after the shot was fired, did you see anything different, or know anything different to that?”

The objection to the question was as follows :

“Your Honor, the form of questioning is illegal and incorrect in presuming that anything has been testified to before in this court by any witness, and asking the witness along those lines.”

It is noted that at the time of this objection the jury had heard all of the testimony given by Hodge, as well as all of the testimony given by this witness, Mrs. Hudson, on direct and cross-examinations. Following the question objected to, the ruling of the trial court thereon, and the reservation of this bill, Mrs. Hudson answered, “I just know what I saw.”

Counsel for defendant admits in his brief that this error standing alone would be insufficient to warrant the granting of a new trial, but that this bill, together with all other bills, tends to show that defendant was prejudiced.

We are unable to perceive in what manner the question and answer elicited thereby were prejudicial to the accused’s rights, and counsel has not specified adequate ground for said objection.

It is well settled that a bill of exception must state the grounds of objection or point out specifically the errors complained of in order that an opportunity may be given the trial judge to correct them, and that, if it is not sufficiently specific, it will not avail the party raising it. State v. Green, 36 La. Ann. 185; State v. Carroll, 160 La. 199, 106 So. 782; State v. Keife, 165 La. 47, 115 So. 363; State v. Antoine, 189 La. 619, 180 So. 465; and State v. Labat, 226 La. 201, 75 So.2d 333.

It is also well settled that considerable latitude must be left to the trial judge in ruling on the form of questions to witnesses; that a conviction will not be reversed because the trial court allowed leading questions except where a showing is made that there was a clear abuse of such discretion calculated to haye prejudiced the accused’s rights, and that, while counsel should not be permitted to lead a witness, a verdict will not be disturbed on that ground when the subject was relevant unless there was a clear abuse of discretion. State v. Allemand, 153 La. 741, 96 So. 552; State v. Hollingsworth, 160 La. 26, 106 So. 662; State v. Fuller, 164 La. 718, 114 So. 606; State v. James, 165 La. 822, 116 So. 199; State v. Labat, supra.

We find no merit in Bill of Exception No. 6.

Bills of Exception Nos. 7 and 8 were reserved to the trial court’s ruling relative the admissibility in evidence of two written confessions of the defendant taken at two different times. The objections are based on the contention that the confessions were not free and voluntary in that the officer taking the confessions talked at some length to the accused, both before and after the confessions; that they were not complete; and that the accused was not informed of his rights to counsel prior to his giving his confession.

The testimony of the witnesses attached to these bills reveals to our complete satisfaction that as a matter of fact said confessions were made freely and voluntarily and were not made under the influence of fear, duress, intimidation, menaces, threats, inducement, or promises.

We find no merit in objection to the admissibility of the confession on the ground that the district attorney, the officer receiving the confession of the accused, talked to him before and after said confession in view of the conversation had between them which is revealed by the record to be that the district attorney asked the accused questions relative to the location of the house at the site of the homicide, the number and location of the rooms thereof; that after receiving the first statement made by the accused and when the parties who were in the room at the time the statement was made were preparing to depart or were in the act of departing therefrom, the district attorney, in substance, asked the accused, “Joe, why in the world did you do this?” To which the accused answered, in substance, “I don’t know.” These questions and answers thereto were not incorporated in and made a part of the written confession. Nevertheless, the entire written confession went to the jury. Further, the State disclosed every fact and circumstance surrounding the making of this confession, as well as the conversations had between the district attorney and the accused, before taking of the written statement and after the conclusion of the written statement.

In the absence of proof to the contrary, the fact that a written confession does not incorporate all of the conversation had between the district attorney and the accused does not violate the rights of the accused preserved by LSA-R.S. 15:450, which reads as follows:

“Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.”

The substance of what defendant stated was incorporated in the written confession and proven beyond doubt by the evidence in this case. Written confessions to be admissible in evidence against the accused need not be in any particular form nor in exact language of the accused but are sufficient if the substance of the accused’s statement is taken down. State v. Brasseaux, 163 La. 686, 112 So. 650.

The objection to the admissibility of the confession on the ground that the statement itself does not show that all of the rights of the accused party were made known to him at the commencement of the taking of the statement, or that the accused was informed that at the time of giving the statement he was entitled to have a lawyer of his own choosing present, or that the court would be required to appoint a lawyer to assist him in the defense of his case is without merit.

An examination of the written confession shows that the accused party was fully informed of all of his rights. Further, the evidence taken on the hearing to determine whether or not the confession was admissible abundantly shows that the accused was informed by the district attorney that his statement would be used against him, both at the grand jury investigation of the matter and in court at the trial of the case if he was indicted, notwithstanding that the accused is not entitled to be informed that a voluntary confession might or will be used against him. State v. McGuire, 146 La. 49, 83 So. 374; State v. Burks, 196 La. 374, 199 So. 220; State v. Byrd, 214 La. 713, 38 So.2d 395; State v. Alleman, 218 La. 821, 51 So.2d 83.

We find no merit in Bills of Exception Nos. 7 and 8.

Bills of Exception Nos. 9 and 10 were reserved as a result of the rulings of the trial court on objections which grew out of the testimony of the defendant on his own behalf.

The defendant voluntarily testified as a witness in his own behalf and testified that the killing of the deceased was an accident. Upon cross-examination he was asked whether, in a conversation had between him and Sheriff Waller, brother of the deceased, he had made certain statements to the sheriff relative to the homicide. Counsel for defendant contends that said statements would relate to admissions or confessions against the interest of the accused and therefore were objectionable on the ground that they had not been covered by the district attorney in his opening statement. The trial court overruled the objection, and Bill of Exception No. 9 was reserved.

After the accused left the witness stand the State called Sheriff Waller to rebut the testimony given by the accused and to impeach his testimony. The defendant objected to the admission of the testimony of the sheriff on the ground that it consisted of evidence of cm oral confession allegedly made by the defendant which was not referred to in the opening statement by the district attorney, for which no proper foundation was laid, and which was not legally in rebuttal of any other testimony. The trial court overruled the objection, to which ruling Bill of Exception No. 10 was reserved.

As heretofore stated, the accused voluntarily submitted himself as a witness in his own behalf and testified on direct examination that the shooting and the killing of the deceased was the result of an accident. The State had already established its case in chief. The district attorney in his opening statement had fully informed the jury of his -intention of offering confessions made by the accused and in his presentation of the case in chief did offer said testimony. On cross-examination, the district attorney asked him questions relative to his conversation with the sheriff at the time of his arrest, for the obvious purpose of testing his credibility as a witness, of weakening or destroying his testimony on direct examination that the shooting was accidental. There is no doubt that such cross-examination for this purpose is proper. LSA-Revised Statutes 15:486 and 15:490; Marr’s Criminal Jurisprudence, section 627.

The jurisprudence is' clear that such cross-examination of the accused was prop■er for the double purpose of impeaching his testimony that he accidentally shot and killed the deceased if he answered the question in the affirmative, or of laying a foundation for impeaching him and showing him to have testified falsely if he answered the questions in the negative. State v. Pousson, 134 La. 279, 63 So. 902; State v. Stroud, 198 La. 841, 5 So.2d 125; State v. Mattio, 212 La. 284, 31 So.2d 801; State v. Rocco, 222 La. 177, 62 So.2d 265.

In the case of State v. Stroud, supra, the defendant was asked on cross-examination if he had made a certain statement in the city jail on the date of the shooting1 in the presence of Night Marshal Baker, to which question he answered in the negative, •after defense counsel objections had been overruled. After the defendant closed his case the State in rebuttal called Night Marshal Baker and asked him if the accused had made the statement. In passing upon the issue, this Court said [198 La. 841, 5 So.2d 127]:

“In Marr’s Criminal Jurisprudence, Volume 1, page 151, it is stated that the offense of shooting with intent to murder is composed of two ingredients; one, the shooting, and, second, the intent to commit murder. It is also stated that the gravamen of the crime lies in the intention with which the act of shooting is done. State v. Price, 45 La.Ann. 1430, 14 So. 250; State v. Brinkley, 180 La. 679, 157 So. 388.
“The statement made by the accused was relevant and material to show intention and animus on his part, especially in rebuttal of his plea that he shot in self-defense, that he only shot to stop Tarver, and that he was sorry he had to shoot him. The statement that the defendant wanted to get two or three ‘more’ of them at the mill was competent and material to show his intent ‘to get Tarver.’ Code of Criminal Procedure, Articles 444, 445, and 446.
“This is not a case where the prosecution reserved its main attack until after the defendant had closed his case. It is not an instance where important testimony was withheld by the prosecution until after the defendant’s case was closed so as to place him at a disadvantage. The State had already established, by eyewitnesses, its case in chief and had shown that Tarver was unarmed and had given no provocation at the time he was shot by the accused. The statement was introduced in evidence to rebut the defendant’s testimony tending to show that he shot in self-defense and that he had no intention of returning to the mill to attack Tarver. State v. Pousson, 134 La. 279, 63 So. 902. Moreover, the trial judge has discretion in matters of this kind and it does not appear that he abused his discretion in this case (Article 379, Code of Criminal Procedure), because the defendant had been placed on his guard concerning the statement when he was on the stand and he closed the case without making any attempt to corroborate his denial of having made the statement by placing either his brother-in-law or his wife on the stand.”

For the reasons above stated, we find no merit in Bills of Exception Nos. 9 and 10.

Bill of Exception No. 11 was reserved by the defendant to the overruling of his motion for a new trial. The motion was based on the ground that Sheriff Waller, who upon motion by the defendant had been recused from serving in his official capacity during the trial of the case and was sequested from the courtroom during the said trial, returned to the courtroom after the trial was concluded to listen to the arguments of counsel to the jury and remained during the greater part thereof. Defendant contends that the presence of said sheriff in the courtroom had some effect upon the jury that was prejudicial to the accused.

In his per curiam, the trial judge informs us that during the entire trial, until the last witness had been examined, Sheriff Hiram Waller was under sequestration, as were all other witnesses, except those excused from the rule by express consent of both counsel. When both the State and the defense had closed, the witnesses were excused from the rule, without objection; and court recessed until late in the evening so that the jury, court officers and others could go for their evening meal. When court reconvened for the final arguments, the court’s charge and the final submission of the case to the jury, of course the witnesses were not under sequestration. No objection was made to the presence of Sheriff Waller in the court. Therefore, the court was powerless to take any action with regard thereto, if any action was required.

We find no showing that any of defendant’s rights were jeopardized, or that he was in any manner prejudiced by the presence of Sheriff Waller in the courtroom at that particular phase of the case.

Another ground urged in the motion for a new trial was that the testimony of four witnesses taken during the trial of the motion for a change of venue was lost when the plastic plates on'which their testimonies were recorded by a sound — , scriber allegedly deteriorated, and that said loss of testimony renders the record incomplete. Defendant does not specify in what way said loss of testimony prejudices his rights, whereas, the trial judge in his per curiam states as follows:

“ * * * The testimony of defendant’s witnesses, N. G. Lee, John T. O’Brien, Roy McIntyre and Robert Garner, ' is missing from the record, because of a failure of the mechanical recording device to properly record same or because it was accidentally or inadvertently obliterated from the machine’s records. However, I took detailed notes on the testimony of these four gentlemen, as well as of the testimony of all other witnesses and their testimony was quite similar in import to that of the other of defendant’s witnesses. Each of these four gentlemen testified that in his opinion the defendant could obtain a fair and impartial trial in Franklin Parish.”

We find no error in the ruling of the trial court to Bill of Exception No. 11.

Defendant filed a motion in arrest of judgment on the ground that the record allegedly contains manifest error and for the reason that the record is incomplete. Defendant fails to point to any errors patent on the face of the record. Assuming, for the sake of argument, that the record is incomplete as urged, this complaint is contained in Bill of Exception No. 11, which we have already disposed of and are thus relieved of the necessity of reconsidering same.

Accordingly, for the reasons assigned, the verdict and sentence are affirmed.

On Rehearing

PER CURIAM.

To avoid any seeming conflict in our rulings on bills of exception 9 and 10 with the conclusions reached by us in the cases of State v. Hayes, 162 La. 310, 110 So. 486, and State v. Ward, 187 La. 585, 175 So. 69, we do not in any manner, expressly or by implication, overrule the holdings or the conclusions reached in the said two cited cases.

In the instant case the record clearly discloses that alleged incriminating statements of the defendant, the admissibility of which was objected to, were fully covered in the opening statement to the jury by the District Attorney.

The record further discloses that the said incriminating statements alleged to have been made as not being freely and voluntarily given and not having the proper foundation laid therefor, were clearly admissible being part of and included within the written and oral confessions of the defendant, which had been previously admitted by the court after the proper foundation therefor had been laid during the presentation of the State’s case in chief in accordance with law.


author: JANVIER, Judge.

text:
    Mrs. Frances R. OLIVIER et al. v. TRANSCONTINENTAL INSURANCE COMPANY.
    No. 20778.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.

      Fred S. Bowes, New Orleans, for plaintiffs-appeilants.
    Bienvenu & Culver, P. A. Bienvenu, Trial Atty., New Orleans, for defendant-appellee.
   JANVIER, Judge.

The automobile collision from which this suit results occurred in Jefferson Parish on the west side of the Mississippi River at the point at which the Fourth Street Highway forms a T-junction with Barataría Boulevard.

The accident occurred at about 9:30 o’clock on the night of March 6, 1954. The cars involved were a Buick sedan, owned and operated by Harold A. Olivier, and in which with him were his wife and their three minor children, and a Chevrolet car owned and driven by Joseph Breaux and in which with Breaux were Miss Shirley Theriot and her brother. Her brother has died since — not as a result of the accident— and therefore could not be produced as a witness.

The Olivier car had stopped at a filling station and refreshment stand located on the side of Barataría Boulevard at a point almost opposite the junction of that boulevard with the Fourth Street Highway.

After stopping at the filling station, Olivier intended to drive out Barataría Boulevard towards Lafitte and, as he left the filling station, he was facing directly across the Boulevard and in front of him was the automatic semaphore traffic light which controlled traffic at that intersection. At that time the light showed red so he waited a few moments for it to change. However, when the red light was automatically extinguished, the green light did not appear and he realized that it must be broken. He, therefore, waited a few moments to make certain that it was safe for him to enter and that the light to vehicles on the boulevard was unfavorable, and after waiting for this short time, he entered the boulevard under the light fixture and turned to his left to go towards Lafitte. In the meantime, the Chevrolet car of Breaux, which was on Barataría Boulevard, had been approaching the intersection at which Breaux intended to turn to his left into the Fourth Street Highway on his way towards Westwego. Thus, as Olivier turned to his left out Barataría Boulevard and as Breaux turned to his left, to proceed on Fourth Street, the two cars met in collision.

The exact point of the impact is in dispute. Olivier says that he had completed the turn to the left and had proceeded a short distance when the Breaux car crashed into the side of his Buick. Breaux says that the collision took place just under the traffic light and as the Olivier car entered the highway right in front of his car.

The Olivier car was practically demolished and Olivier, his wife and the three minor children sustained physical injuries.

Olivier had secured a policy of liability insurance from Transcontinental Insurance Company and Breaux had obtained a similar policy from Traders & General Insurance Company.

There was and is no doubt whatever about the negligence of Breaux who entered the intersection at high speed and turned without reducing his speed and without any regard whatever to the fact that the Olivier car was in or dangerously near to the intersection. Realizing this, Traders & General Insurance Company, Breaux’ insurers, decided that it would be best to attempt to settle by compromise the claim of Olivier for damages to his car and for his personal injuries, the claim of Mrs'. Olivier for her injuries, and the claims on behalf of the three Olivier children for their injuries. That company suggested to Transcontinental Insurance Company that they jointly attempt to settle the various claims, but the Transcontinental Company, feeling that Olivier had not been in any way at fault, refused to join in the making of those compromises. Traders & General Insurance Company negotiated for the settlement of all of those claims insofar as they were against Breaux or his insurer, the said Traders & General Insurance Company. Accordingly, that company agreed to pay a total sum of $1,000 in settlement of the claims of all of the Oliviers against Breaux or against it, and it obtained a signed release agreement from Olivier and Mrs. Olivier and also from Olivier as the administrator of the estates of his several minor children, and, under those release agreements, it paid the $1,000 to Olivier and the attorney for the Oliviers, and the said attorney has deposited the $1,000 in escrow, apparently to be held until all claims have been settled amicably or as the result of any judgments which may be rendered. In these several releases it is stated that Olivier received $800, Mrs. Olivier $50, and Olivier, for the use and benefit of each of his three children, $50, and in each settlement agreement there was a statement “specially reserving all rights against Transcontinental Insurance Company and other parties.”

After these settlements were effected, Mrs. Olivier, on her own behalf, and Mr. Olivier, as administrator of the estates of his three minor children, brought this suit against Transcontinental Insurance Company, alleging that the accident had re-suited from negligence on the part of Olivier and praying for judgments against said Transcontinental Insurance Company as follows: In favor of Mrs. Olivier for $7,645; in favor of the minor, Peggy Ann Olivier, $500; in favor of the minor Ruth Mathilda Olivier, $500; in favor of the minor, Harold A. Olivier, Jr., $1,000.

Transcontinental Insurance Company denied any negligence on the part of Olivier and, in the alternative that it should appear that there was any such negligence and that therefore there was any liability in it as a result of its being the liability insurer of Olivier, it averred that each of the claimants had been paid in full for such damage or loss as each had sustained and that therefore there remained no claim in any one of them.

The said Transcontinental Insurance Company specially averred that in effecting the said settlements, (totalling $1,000) which were erroneously averred to have totaled $1,200, there had been subterfuge in that the damage sustained by Olivier had not amounted to $712, which was stated as representing the cost of repairing that car, and that in reality the settlement agreements contemplated that of the total amount which the Olivier family had received, considerably more than $50 had been intended for the use of Mrs. Olivier and for the use of each of the three children, and that therefore each had been paid in full for such damage or loss as each had sustained.

After an extended trial there was judgment in favor of defendant, Transcontinental Insurance Company, the District Judge stating that the “plaintiffs herein have been paid in full for the injuries they received through the medium of a compromise entered into by and between the plaintiffs herein and the insurer of the said Joseph Breaux, that is, the Traders & General Insurance Company.”

The District Judge thus found it unnecessary to determine whether Olivier had been at fault since he found that, regardless of where the fault lay, Mrs. Olivier and each of the children had been paid in full by Traders & General Insurance Company.

From this judgment Mrs. Olivier, in her own behalf, and Mr. Olivier, on behalf of each of the children, have appealed.

We agree with the District Judge that this is an unusual proceeding, and we also agree that it “is permissible under the laws of the State of Louisiana.” It is unusual in that the father, on behalf of his minor children, is suing his own insurer. However, he is appearing not in his individual capacity, but solely in the capacity of representative of his minor children, and, in that capacity, is claiming on their behalf damages for injuries alleged to have been caused by the negligence of the holder of a liability insurance policy under which the insurer is liable directly to any one who may be injured by negligence of the insured. If, in those circumstances, the father, as representative of his children, may not present the claims of the children then no one may and by that peculiar circumstance the children are denied rights to which they are entitled and the insurer is unjustly relieved of the liability which it assumed in the issuance of the contract of insurance.

Since the District Judge decided that each of the insured persons has been fully compensated for losses and injuries sustained, it is best that we examine that phase of the matter before inquiring into the fault vel non of Olivier.

In the first place, we must examine the contention of the Transcontinental Insurance Company that the $50 which was paid to each of the present claimants does not represent the true amount which each actually received. This is based on the further contention that, though the settlement with Olivier himself is supposed to have included $712 as the cost of repairing his car, the truth is that the car was not worth ánywhere near that amount and that he therefore actually received some part of that amount, not because of the damage to his car, but because of the injury sustained by the other members of his family, and that the settlement was made in that way so that it would seem that the amounts paid to each of the other members of his family was small and that accordingly each might have some right to claim some additional amount from Transcontinental Insurance Company,

It is true that Olivier, in answer to a question propounded by counsel for Transcontinental Insurance Company, stated that the “book value” of his car might not have been more than $600, but he added that it was worth more than that to him.

It is also true that the evidence shows conclusively that the Traders & General Insurance Company exhibited little interest in the question of how the total amount paid in settlement should be divided and agreed to pay $1,000 as a globo settlement of all of the claims, and it is also true that the $1,000 which was paid as a result of the several compromises and sub-rogations, has never been distributed but is held in trust by counsel for plaintiffs. Nevertheless, we do not feel that the record justifies the conclusion that there was any such conspiracy which would result in a mulcting of the Transcontinental Insurance Company for losses and injuries for which payment had already been made.

We thus pass to a consideration of the question of whether the amounts shown in the several settlement agreements represent adequate compensation for the injuries of Mrs. Olivier and of the three children.

We first note that none of the injuries could have been particularly serious for the bill of the doctor for treating all five of the injured persons amounted to only $25 and each treatment required only one visit to the doctor. The injuries to the children were of such slight importance that we shall not discuss them in detail and shall merely state that $50 seems to have been adequate in each case.

In the case of Mrs. Olivier $50 does not appear adequate. She was two months pregnant and possibly there was some slight fear that there might be some detrimental effect upon this pregnancy. However, it is very evident from the testimony of the doctor who attended her that there was very little fear on his part of such a result. Mrs. Olivier says that she found it necessary to remain in bed for several days, but from the testimony of the doctor we think that there was little necessity for this. All in all we believe that, while $50 was not quite adequate, an additional amount of $200 should sufficiently compensate her.

We have not overlooked the fact that in Valence v. Louisiana Power & Light Co., La.App., 50 So.2d 847, 854, we allowed $750 to a plaintiff “as compensation for her mental anguish and worry over the fear that the unborn foetus might have been injured or that there might have-been an abortion.” Nor have we overlooked the fact that, as a result of the many cases cited in that decision, from $600 to $750 has been accepted as proper award for real fear of a possible abortion. However, in each of the cases cited there was real reason for that fear, whereas here we are convinced from the testimony of the doctor and of Mrs. Olivier herself that there was no justification for serious fear on that ground.

Mrs. Olivier, of course, is not entitled to anything more unless it appears that Olivier was at fault and that this fault on his part contributed to the result, and we thus return to a consideration of the facts as shown by the record.

Olivier says that, as he turned to his right to go under the traffic light and then to turn left on Barataría Boulevard, he noticed that the traffic light was red and that therefore he waited for it to become favorable. And while he says that he had completed the turn and had proceeded some distance along Barataría Boulevard before his car was struck by the Breaux car, we think that the truth is that he was struck almost directly under the traffic light and that consequently he had barely completed the turn. This would mean that, when he drove out into the boulevard, he must have been directly in the path of the oncoming Breaux car and that he should have seen that it was coming and that he could not complete the turn in time to avoid being struck by it. This fault on his part contributed to the accident and rendered his insurer liable solidarily with the insurer of Breaux.

It is conceded that the amount received by Mrs. Olivier from the insurer of Breaux must be credited against the amount due for her total damage. Therefore, since she has received $50, and we feel that $250 will compensate her for her total damage, she is entitled to judgment against the Transcontinental Insurance Company in the sum of $200.

We think that, under the circumstances, Transcontinental Insurance Company should bear all costs.

The judgment appealed from, insofar as it dismisses the suit of Mrs. Olivier, is annulled, avoided and reversed, and there is now judgment in favor of Mrs. Frances R. Olivier and against Transcontinental Insurance Company in the sum of $200, with legal interest from judicial demand, Transcontinental Insurance Company to pay all costs; in all other respects the judgment appealed from is affirmed.

Reversed in part; affirmed in part.


author: REGAN, Judge.

text:
    Mr. and Mrs. Dominick SARAGUSA v. C. W. FRYANT.
    No. 20753.
    Court of Appeal of Louisiana. Orleans.
    March. 25, 1957.
    Brierre & Claiborne, Louis Fenner Claiborne, New Orleans, for plaintiffs-appellants.
    Adams & Reese, New Orleans, for defendant-appellee.
   REGAN, Judge.

The plaintiffs, Mr. and Mrs. Dominick Saragusa, instituted this suit against the defendant, C. W. Fryant, endeavoring to recover the sum of $57,018.36, representing the amount of their combined claims for personal injuries, property damage, medical expenses, loss of earnings and other incidental expenses resulting from a collision on October 2, 1953, at about 5 :30 P.M. in the intersection of Canal and St. Patrick Streets between two vehicles operated respectively by Mrs. Saragusa and the defendant.

The defendant answered and denied that he was guilty of any negligence in the premises and, in the alternative, pleaded the contributory negligence of Mrs. Saragusa.

From a judgment in favor of defendant dismissing plaintiff’s suit, they have prosecuted this appeal.

The defendant, accompanied by his wife , related that he was driving in the left lane of the outbound roadway of Canal Street or towards the lake and approaching the intersection of St. Patrick Street, when he noticed the Saragusa automobile in the neutral ground moving very slowly and believed from all of its external manifestations that it was going to stop. Traffic was very heavy at that hour of the evening — cars were ahead of him, to his rear, to his side and he was driving at the same pace as the other vehicles. He momentarily shifted his eyes from the Saragusa car to the traffic ahead and almost simultaneously his vehicle was struck from the left side by the plaintiff’s automobile. After the impact his car moved approximately one hundred feet from the situs of the collision where it stopped.

Mrs. Saragusa, prior to the accident, asserted that she had been driving in the inbound roadway of Canal Street or towards the river and had just completed a left turn into the neutral ground zone which separates the two roadways of Canal Street at St. Patrick Street and was facing the outbound roadway of Canal Street. The evidence is conflicting as to whether at the moment of the accident, Mrs. Saragusa’s car was stopped entirely within the neutral ground, slightly protruding into the lake or outbound roadway of Canal Street or was moving slowly forward. She was alone in her vehicle when the accident occurred.

In any event the two cars collided near the downtown river corner of the neutral ground. The car operated by Mrs. Saragusa came to a stop a little beyond the center of the intersection. Both cars were severely damaged in the accident and Mrs. Saragusa received physical injuries as a result thereof. There was no reconventional demand filed on behalf of the defendant for the reason that his damages were paid in full by the plaintiffs’ insurer.

Plaintiffs contend that the defendant exemplified the grossest negligence in driving at an excessive speed in heavy traffic and that he possessed the last clear chance tp avoid the accident.

Defendant, on the other hand, denies that he was at fault and avers that Mrs. Sara-gusa was guilty of negligence in permitting her car to roll forward into the left side of his vehicle instead of bringing it to a complete stop in the neutral ground and thus permit traffic moving in Canal Street to pass in safety.

The foregoing elucidation reveals that only questions of fact were posed for the trial court’s consideration. The judge; a qua, obviously accepted defendant’s version thereof, and concluded that the proximate cause of the accident was Mrs. Saragusa’s negligence in permitting her car to continue its forward movement instead of bringing it to a complete stop in the neutral ground and thus permit traffic moving in Canal Street to pass in safety.

The only question which this appeal has posed for our consideration is whether that finding is so erroneous and unsupported by the evidence as to warrant a reversal by us.

We are of the opinion that no useful purpose would be served by again indulging in a discussion of the foregoing testimony or by endeavoring to reconcile the respective litigant’s version of the manner in which the accident occurred. The trial judge accepted the defendant’s yersion thereof and our analysis of the record convinces us that the .evidence preponderates in favor of the defendant to the effect that Mrs. Saragusa permitted her automobile to slowly roll into the side of defendant’s vehicle and the judgment is, therefore, correct.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

JANVIER, J., absent, takes no part.

      . Mrs. Fryant only knew that an accident had occurred after she felt the impact of the collision.


text:
    WASHINGTON FIRE & MARINE INSURANCE COMPANY et al. v. ALLSTATE INSURANCE COMPANY et al.
    No. 20767.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.

      Gamble & Gamble, Harry P. Gamble, III, New Orleans, for plaintiffs-appellants.
    Parnell J. Hyland, Porteous & Johnson, New Orleans, for defendants-appellees.
   JANVIER, Judge.

This suit results from an intersectional automobile collision which occurred at the corner of Loyola Avenue and First Street, in New Orleans, at about 8:30 o’clock on the morning of July 19,1954.

The plaintiff, Anthony N. Gremillion, was operating his Chevrolet automobile on First Street, going in the direction away from the Mississippi River, and defendant, Mrs. Ora P. Brown, was operating a Mercury car on Loyola Avenue in a downtown direction. The two cars met in the intersection. Gremillion sustained physical injuries and his car was damaged. ■

Gremillion had obtained a policy of collision insurance from Washington Fire & Marine Insurance Company under which that Company had agreed to pay all but $50 of such amount as might be required to repair his car should it be damaged in collision and accordingly that Company and Gremillion, on that basis, paid for the repairs to his car and he executed a conventional subrogation in favor of the said insurer up to the amount which it had paid, and then Gremillion and that Company brought this suit against Mrs. Ora P. Brown, her husband, John L. Brown, and Allstate Insurance Company, the liability insurance carrier of Mr. and Mrs. Brown, the Washington Fire & Marine Insurance Company praying for judgment in the sum of $133.36, which it had paid on account of the repairs of the Gremillion car, and Gremillion praying for judgment for $50 as his portion of the repairs of his car, and $2,389.76 for his physical injuries, medical expenses, loss of earnings, suffering, etc.

Defendants denied that there had been any negligence on the part of Mrs. Brown and averred that the accident had been caused solely by the negligence of Gremil-lion, and in the alternative they specially pleaded that Gremillion had been guilty of contributory negligence.

There was judgment in favor of defendants dismissing the suit of plaintiffs and they have appealed.

As Gremillion, on First Street, neared the corner of Loyola Avenue, he says that he brought his car almost to a stop because his passage was blocked by a garbage truck on Loyola Avenue; that he then looked to his left and saw the car driven by Mrs. Brown and that it was “half way of the block.” He says: “I had figured I had time enough to go across the street.” He did not again look at the car which was approaching but proceeded in his attempt to cross Loyola Avenue and saw the Brown car again only when it was “about 10 feet from me.”

In most respects Gremillion is corroborated by a passenger in his car, George Cozic.

Mrs. Brown says that as she, on Loyola Avenue, approached the intersection of First Street, there was another car ahead of her which was crossing and that she therefore brought her car to a complete stop, that she saw the Gremillion car which was standing still on First Street, that Gre-million was looking at his “partner”,. Cozic, and that, believing that Gremillion would permit his car to remain stationary and allow her to cross, she drove into the intersection and that just as she entered the intersection "it seemed. Mr. Gremillion had started out also,” and that before she could bring her car to a stop it crashed into the side of the Gremillion car.

Counsel for plaintiffs argue that Gremil-lion had preempted the intersection and that this is made evident by two facts. — first, because of the fact that the Brown car struck the Gremillion car, and second, because the impact occurred near the far side of Loyola Avenue making it evident that the Gremillion car had almost crossed when it was struck.

In the first place, as has so often been said, preemption does not necessarily mean entering first. There is no preemption if the car which should not enter because of the dangerous proximity of another car hastens into the intersection immediately in front of the other oncoming car. This is obviously what Gremillion did. He had brought his car to a stop or practically to a stop, evidencing an intention to allow the other car to pass and had then accelerated its speed, with the result that, though it did not preempt the intersection, it did get into it first. In the second place, there is considerable doubt over the question' of whether the impact occurred near the far side of Loyola Avenue, and it is by; no means certain that it did. Other evidence indicates that the impact took place on the near side of Loyola Avenue rather than- on the far side.-

In this state of the record it is not possible for us to conclude that the District Judge was manifestly in error. He reached the conclusion that the attention of Gremil-lion was “diverted” either to the garbage truck or to his passenger. Nor was he manifestly in error in concluding that when Gremillion saw the Brown car when it was a half block away, he “proceeded into the street,” and “never looked again.”

.It is impossible to determine just what-did cause the accident. It seems probable that each driver thought that the other would stop and permit free passage and that each started into the intersection without noticing that the other was about to enter. Certainly Gremillion was to some extent at fault and, if so, plaintiffs cannot recover however negligent Mrs. Brown may have been.

The judgment appealed from is affirmed at the cost of appellants.

Affirmed.


text:
    Roy J. GATTUSO v. Terry L. CALLAHAN et al.
    No. 20762.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.

      Morrison & Newell, Henry L. Newell, New Orleans, for plaintiff-appellant.
    Dufour, St. Paul, Levy & Marx, Leonard B. Levy, William M. Lucas, Jr., New Orleans, for defendants-appellees.
   JANVIER, Judge.

This suit results from a daytime inter-sectional collision of two automobiles at the corner of Derbigny and Tenth Streets in the City of Gretna on the West bank of the Mississippi River.

The streets cross at a right angle and the intersecting corner is what is generally termed “blind” since along the property line of both streets there is a fence which makes it impossible for the driver of a car on either street to see a car on the other until within a very few feet of the corner.

Mrs. Roy J. Gattuso, the wife of plaintiff, was driving the family Packard car on Tenth Street going in a westerly or upriver direction, and defendant, Terry L. Callahan, was operating his Oldsmobile on Derbigny Street, going in a southerly direction, so that as the two vehicles neared the intersection, the car of Callahan was to the right of Mrs. Gattuso. The Callahan car struck the Packard of Gattuso on its right side near the middle and that car suffered severe damage to that side, and the Callahan car sustained serious injury to its front.

Gattuso, alleging that the accident resulted from negligence on the part of Callahan and that Mrs. Gattuso had been in no way at fault, brought this suit against Callahan praying for judgment for $926.25, admittedly the cost of repairing the damage sustained by the Gattuso car.

Callahan denied that he had been in any way at fault, and, averring that the collision had been caused solely by negligence of Mrs. Gattuso, prayed that the suit of Gattuso be dismissed and then assuming the position of plaintiff in reconvention and averring that at the time of the occurrence Mrs. Gattuso had been engaged in the carrying out of a family mission, he prayed for judgment against Gattuso in the sum of $537.94 which, it is conceded, was the estimated cost of repairing the damage sustained by his Oldsmobile.

There was judgment dismissing both the main and the reconventional demands and Gattuso has appealed. Callahan neither answered the appeal nor appealed independently from the judgment insofar as it dismissed his reconventional demand.

As Mrs. Gattuso approached the intersection with the intention of turning to her left into Derbigny Street, she swerved slightly in that direction and then, noticing that a third car was on Derbigny Street attempting to enter Tenth Street, and realizing that this would make it difficult for her to enter Derbigny Street, she decided to continue on Tenth Street to the next corner and brought her car back to its original course on Tenth Street. As Mrs. Gattuso was entering the intersection with the intention of turning to her left' and looking at the third car, Callahan, in his Oldsmobile, was approaching the same intersection from her right, and when the two cars neared the center of the intersection, the Callahan car struck the Gattuso car and damage to both resulted.

Callahan contends that, since he was approaching from the right, he was entitled to the right of way as a result of LSA-R.S 32:237, subd. A. Gattuso, on the other hand, maintains that Mrs. Gattuso entered the intersection first and that thus she preempted it and that consequently Callahan should have stopped or reduced his speed sufficiently to allow her to continue across the intersection.

The record leaves no doubt in our minds that both drivers were at fault and that the negligence of each contributed to the unfortunate result.

Callahan was evidently operating his car at considerable speed since it is shown that, although he applied his brakes and skidded 42 feet, he still had sufficient momentum to strike the other car with considerable force and to cause the very extensive .damage already referred to.

On the other hand, it is clear that Mrs. Gattuso entered the intersection without making certain that no car was approaching from her right, since she says that she did not see the Callahan car until it struck her. When asked whether she had seen the Callahan car at any time before the crash, she answered, “No.”

She says that her speed was moderate. However, the two occupants of the third car, Mrs. Jane Heggelund and Mrs. Leon Hill, gave a different version. Mrs. Heg-gelund, referring to the speed of the Gat-tuso car, says:

“ * * * I don’t know the actual rate of speed but the car was travelling fast according to my estimation. She was not going slow by no means.”

She also said that Mrs. Gattuso evidently had not applied her brakes.

Mrs. Hill says that Mrs. Gattuso “wasn’t going outrageously fast but kind of fast.”

As already stated, the record convinces us that the two drivers, Mrs. Gattuso and and Callahan, drove into the intersection each without due regard for the possible presence of the other car and that thus both were at fault. It is evident that it would not be proper to say that the District Judge was manifestly in error in dismissing the suit of Gattuso. That judgment appears to us to be entirely correct.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.