text:
    James D. BLANCHARD et al. v. ASHBY CONSTRUCTION CO., Inc., et al.
    No. 4428.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.

      Guillory & Guillory, Eunice, for appellants.
    Jacque B. Pucheu, Eunice, for appellees.
   LOTTINGER, Judge.

This is a damage suit filed by James D„ Blanchard and his insurer, Allstate Insurance Company, against the Ashby Construction Company, Inc. and its insurer, the Inland Empire Insurance Company. Damages are sought by the Allstate Insurance Company in the amount of $241.31, being the amount allegedly paid Mr. Blanchard for repairs to his automobile ttnder the terms-of its insurance policy. The latter seeks-the amount of $100, being the amount allegedly paid by him under the deductible-provisions of the policy and the further amount of $109,883.24 for personal injuries,, pain, suffering and the like.

Judgment was rendered in the Court below in favor of both plaintiffs in the total' amount of $341.31 for property damage, as-prayed for, together with $3,500 to the plaintiff James D. Blanchard for pain and suffering, $170 for medical expenses and $35 for a back brace. From this judgment the defendant Ashby Construction Company, Inc. has appealed and the plaintiff James D. Blanchard has answered the appeal asking that the amount to him be increased to $12,805.

The accident occurred in the Parish of Jefferson Davis at about 5 :00 o’clock p. m. on March 17, 1955 on U. S. Highway No. 190 at a point approximately midway between the towns of Elton and Basile. The-weather was clear and the road straight, and dry. Just prior to the accident, the plaintiff was driving his 1952 Chevrolet automobile in an easterly direction behind a truck belonging to the Ashby Construction Company, Inc. which was likewise being driven in an easterly direction by the said defendant’s employee, one Tanzy Ar-doin.

Mary Lee Wernley, divorced wife of the-plaintiff, testifying in his behalf, stated that she was seated in the right front of the automobile which her husband was driving. She testified that her husband was from 150' to 200 feet from the truck ahead of him> when he pulled into his left lane and that he sounded his horn after he had gotten into the left lane. She stated further that as they started to go around the truck and just before they got to it, it pulled out in front of them. She stated that the right front side of the car was hit but that she did not remember what part of the back of the truck was hit.

On cross examination, this witness testified that just prior to the accident her husband was driving at about 55 miles per hour. They had come from Houston and were travelling in the direction of New Orleans. They had eaten lunch in Houston and the accident occurred at about 5:00 or 5 :30 in the afternoon at which time her husband was proceeding at a rate of about 55 miles per hour. She testified that she did not believe that he increased his speed when he tried to go around the truck and stated further that she did not notice another car ahead of the truck. She stated also that she thought that the truck pulled to its left in an attempt to pass a car (which she did not see) and that she did not see the truck’s turn indicator blinking before it turned left. She testified that she was awake at the time of the accident and was watching the road. She stated further that she did not tell him anything when the truck made its move to the left as it was too late and she could only reach out and put her hands on the dashboard. She approximated the distance when she first saw the truck as being about 2 blocks away and at about half a block away when her husband pulled to his left to go around it. They were about the length of a car from the truck when it began pulling to its left. She described the truck’s movement to the left as a sudden one or "rather fast.” She believed that the truck had gotten over into the left lane when her husband hit it. She stated that she was not sure whether or not it had crossed the center line and that she believed at the time of the collision that it was still going somewhat to the left. Their car was completely in the left lane at the time of the collision, although she thought it was at somewhat of an angle. She explained this further by saying that the front of their car was to the right and then went on to say that she thought they were going straight when they hit but that after the collision the front was somewhat to the right. She repeated that just before the collision, she thought that their car was going straight. Further, she thought that at the time of the collision the truck was also going straight. The road at the point of the collision was of concrete construction and straight for a fairly long distance in either direction. The accident occurred some 50 feet before they got to a bridge which had concrete posts on either side.

Eddie Brown, called as a witness on behalf of the plaintiff, testified that he was a body mechanic of some 20 years experience and owned his own body shop in Eunice, Louisiana. He stated further that he examined the car of the plaintiff which was damaged in the front end. He described the heavy part of the damage as being on the right front of the automobile and stated that his cost of repairing the car was $341.-31 including wrecker service. The right front fender, he stated, had to be replaced, whereas the left front fender was repaired. Further damage was done to the right door which he stated was caused from the fender having been pushed back into the door. He also stated that the left hood half had to be repaired but that this did not mean that that part of the automobile had come into contact with the other vehicle. When asked what part of the car had struck the truck, the witness testified that “The best we could determine, which is pretty close, it seemed like the truck, for this car, would have gone under this truck and that the tire of that truck would have grabbed this bumper and just actually squeezed this car underneath the bed as she was flat from the top coming down.” On cross examination the witness stated that it looked more like the car had been squeezed than had been hit, but that the blow was harder to the right side than to the left.

The plaintiff testified that just prior to the accident he was travelling east on Highway 190 at a speed of 55 miles per hour going in the direction of Eunice. He stated that the collision occurred when he was in the left or passing lane and after he had been in that lane, for approximately 400 feet, at which time he was still travel-ling at about 55 miles per hour. He stated that he sounded his horn as he crossed over into the left lane and that he sounded it again about 50 to 100 feet before reaching the truck. He stated that the truck, instead of remaining in its right hand lane, pulled into the left lane when he was some twelve to 15 feet from it. He said the two rear wheels were past the center line and that his car was going straight at the time. The truck, he stated, was at a slight angle as it had not yet completely made its full turn into the left hand lane. He stated that no signals whatsoever were given by the truck driver prior to his pulling to the left and that his automobile struck the truck with its right fender headlight and bumper. He stated that he was able to put his foot on the brake pedal but did not have time enough to actually apply his brakes prior to the collision. Further, his car was dragged quite some distance estimated by him at a couple of hundred feet. He stated that after the accident he could not drive his car as the right front fender was mashed against the tire preventing him from steering. He described the locality of the accident as being a very straight road with which he was very familiar. He stated that there were no hazards and that it was a clear day.

Tanzy Ardoin, called as a witness on behalf of the defendants, testified that on the day of the accident he was proceeding east on the Basile-Elton Highway driving a truck for the Ashby Construction Company. Just before the accident, there was an automobile in front of him. He first saw it when it was about 150 feet away at which time it was going slower than he was. He stated that the plaintiff’s car was about 400 or 500 feet behind him when he started to pass the car in the front at which time he had his signal lights on. He described his maneuver as pulling slowly to the left and after having looked in his mirror and seeing the plaintiff at about 400 or 500 feet behind him, he did not look again. The accident occurred after he had gotten completely in the left lane and was going straight ahead, at which time his right wheels had crossed the center line. When he first saw the plaintiff, he was in his right lane of traffic and had not gotten over to the left in any way. He stated further that the plaintiff did not blow his horn. He stated that the whole front end of the plaintiff’s car hit the back of his truck rather than just the right front end. His truck was struck in the rear but more to the left.

On cross examination, the witness testified that he did not give a hand signal but did give a signal with his blinker lights of his intention to pull to the left. At the time of the accident, there were about ten men in the “dog house” in the rear of the truck and two in the cab, with him. He stated that the accident occurred when he had proceeded 100 or 150 feet after making his left turn.

On recross examination, the witness stated that he did not blow his horn before passing the Pontiac automobile which was in front of him and repeated that after having parked the truck, his blinkers were still on.

Overy Cormier, called as a witness on behalf of the defendants, testified as follows : Just before the accident, he was seated in the “dog house” in the rear of the Ashby truck. The benches in the “dog house” run along each side of same and the men sit facing each other. This witness, at the time, was seated on the right hand side, second from the rear. The Blanchard automobile was about 400 feet to the rear when the truck started pulling to the left and when the collision occurred, the truck was all the way over into the left lane of traffic. He described the position of the truck as being “almost straight.” The collision was a little more to the left of the truck than center, the witness stated. He said that he did not hear the plaintiff blow his horn before striking the truck and that he had watched the plaintiff’s car from the time he first saw it until it actually hit the truck.

On cross examination the witness -sestified that he did not remember how many men were in the back of the truck with him, nor did he remember who was sitting closest to the. door of the “dog house.” He first saw the plaintiff when he was some 600 feet away. He did not know why the truck pulled to the left nor did he know that a car was in front of it. He did not notice after the accident whether the blinker light was working or not. He did not hear the horn of either the truck or the automobile.

On redirect examination, he repeated that he first saw the .Blanchard automobile some 500 or 600 feet behind the truck and stated that both vehicles started into, the left lane at about the same time. His testimony at this point was as follows:

“Q. Who started into the left lane first?- — Your truck or Mr. Blanchard? A. We started about the same. We were a little bit ahead of him but he kept coming and we were about the same and he kept following and when he got to us he didn’t have any more space to go around.
“Q. Now, let’s make it clear — I’ll ask you again. Did Mr. Blanchard get into the left lane or start into the left lane ahead of the truck? A. No, the way it is, we started to go a little ahead of him.”

Eszey Thibodaux, called as a witness on behalf of the defendants, testified that he was on the left side of the truck in the dog house, seated next to the back door thereof just before the accident. He said that he first saw the plaintiff’s car when it was about a quarter of a mile to the rear and in its'right hand lane of traffic. He saw it move over into the left lane when it was some 60 yards to the rear and it moved to the left before the truck did. When the accident occurred, the wheels on the driver’s side of the truck had crossed the center line and the wheels on the right hand side of the truck were “astraddle” of the center line. At the time of the collision, the truck was pretty straight and the accident occurred as the right hand fender struck the left hand side of the truck. He stated that he did not hear the plaintiff blow his horn before the accident. He did not notice any signal lights blinking after the accident.

John P. Lejeune, testifying on behalf of the defendants, testified that he also was riding in the “dog house” and was on the left or driver’s side just before the accident. He did not see the car until it hit the truck, and said that at the time of the accident he didn’t believe that the rear' wheels of the truck were quite across the center line. After the accident, when he got out of the truck, there was a signal light on the left hand side blinking. On cross examination, the witness stated that he did not know whether the blinking lights' were on when the truck started to turn to the left. He stated on redirect examination that he did not hear the plaintiff blow his horn.

The above and foregoing shows that there is utter and hopeless conflict in the testimony of the witnesses for the respective sides. The trial judge made the following factual findings:

“The primary question in my mind was whether or not the plaintiff was not also negligent.
“This question of fact is resolved in favor of the plaintiff. I do not believe that plaintiff was approaching at a high rate of speed because of the light impact and because of the relatively short distance that both vehicles travelled following the collision.
“From the physical facts stressed in the first part of this opinion I am of the opinion that plaintiff’s right front bumper and fender struck defendant’s left rear dual wheels at a point only three or four feet north of the center line of Highway 190. I am also of the opinion that defendant’s vehicle did commence its turn into the passing lane at a time when, without question plaintiff had preempted the passing lane, but also at a time when plaintiff could take no possible evasive action to avoid the collision. If defendant turned on his turn indicators, I am of the opinion that they were turned on at a time when they could serve no useful purpose in warning the plaintiff. The fact that Ardoin felt that he had ample time to pass a vehicle before plaintiff overtook him shows that he was not concerned with signaling his intentions.”

It is the well settled law and jurisprudence of our state that a person who attempts to make a left turn or who attempts to turn from a direct line on the public highways of the state must ascertain before turning that the turn can be made safely. LSA-R.S. 32:235, subd. A, and R.S. 32:236, subd. A. Considering all the facts and the law on the matter, we are of the opinion that the negligence of the defendant was the proximate cause of the accident.

With respect to quantum the trial judge concluded as follows :

“As to the quantum of damages plaintiff has sustained his burden of proving Three Hundred and Forty One and 31/100 Dollars ($341.31) damages to his vehicle. Two hundred and Forty One and 31/100 Dollars ($241.31) is awarded to Allstate and One Hundred and No/100 Dollars ($100.00) to the plaintiff. As to the personal injttries the facts are that immediately following the accident plaintiff did not realize he was seriously injured. Within a few'hours his back caused him a great deal of pain. He was seen by "Dr. McBride of Iota, Louisiana and given sedatives. On March 23, 1955, plaintiff visited Dr. Frank O. Mc-Gehee, orthopedic surgeon of Houston, Texas. Dr. McGehee diagnosed fractures of the 1st and 2nd transverse processes of lumbar vertebrae on the plaintiff’s left side. Physiotherapy and sedatives were prescribed. Plaintiff was also seen by Dr. McGehee on April 12th and April 18th. On each of these visits plaintiff was having pain but Dr. McGehee was of the opinion that the fracture of the transverse processes were all that was involved and that this would cause no permanent disability. Plaintiff was next seen on May 20th and reported symptoms which caused Dr. McGehee to think of the possibility of a nerve root irritation or a ruptured disk at the level of the 5th lumbar vertebra. On that date plaintiff was sent to Dr. Marshall Henry a neuro-surgeon of Houston, Texas. There is no testimony in the record nor are there any reports showing Dr. Henry’s findings. Plaintiff was next seen on June 1st at which time Dr. McGehee prescribed a back brace. On June 13th Dr. Mc-Gehee checked the fit of the back brace and noted in his records that plaintiff stated that he was much improved.
“In addition to plaintiff’s reporting to Dr. McGehee for the above listed examinations, plaintiff visited Dr. Mc-Gehee’s office for the prescribed diathermy treatments on the following dates: March 25, 1955; March 28, 1955; March 30, 1955; April 12, 1955; April 14, 1955; April 18, 1955; April 25, 1955; May 20, 1955; May 25, 1955; June 13, 1955.
“Plaintiff’s next visit to Dr. Mc-Gehee was on November 7th and on that occasion plaintiff gave a history of having sustained another automobile accident on October 11, 1955, wherein he had reinjured his back. Plaintiff then saw Dr. McGehee on the following dates: November 28, 1955; December 5, 1955; February 7, 1956; February 28, 1956; March 12, 1956; March 30, 1956.
“On March 6, 1956, plaintiff had a myelogram performed on the cervical region of his back and received a negative report.
“Dr. McGehee states that he is of the opinion that the pain plaintiff was experiencing in his low back region could be referable to the first accident. He does not know that plaintiff has a ruptured intervertebral disk, but neither has he ruled out the possibility. He felt that it would be desirable to have a myelogram performed which would show the condition of the lumbar vertebra of plaintiff’s back, but as of the date of the trial, it had not been performed.
“Dr. C. V. Hatchette examined plaintiff on behalf of the defendant on April 26, 1956. He noted in his records that plaintiff stated that he had fully recovered from the first accident when the second accident occurred. Dr. Hatchette was unable to find evidence of a ruptured intervertebral disk. He did not believe that a lumbar myelogram was indicated. He did find symptoms referable to the right low back region which he felt would be fully recovered in three months. He felt that the plaintiff was exaggerating his complaints.
“At the time of the accident plaintiff was employed as a salesman for Elliott Metal’s Inc. His job required that he drive several thousand miles per month; that he engage in various sporting activities to entertain his prospective clients. He specifically named golf, bowling and horse back riding as activities which he could perform before the accident but could no longer perform.
“At page 44 of the transcript plaintiff testified that as a result of the first accident he stayed in bed approximately three days but that he never did quit work.
“Plaintiff bears the burden of proving the extent of his injury and it cannot be said that he has proved that he has a ruptured intervertebral disk. Indeed, the fact that he missed so little work, and the fact that he did not visit the doctor from June of 1955 until sometime after the second accident several months later is very significant to this Court in determining the extent of plaintiff’s injury from the accident which is the subject of this suit.
“For the injury above described, together with the physical pain and suffering and mental pain and anguish this Court is of the opinion that plaintiff should receive damages in the sum of Three Thousand and Five Hundred and No/100 Dollars ($3,500.00). The medical expenses incurred with Dr. McGehee in connection with the first accident totaled One Hundred and Seventy and No/100 ($170.00) Dollars. The back brace fitted in June of 1955 cost Thirty-five Dollars ($35.00) and all of these above listed sums are allowed as damages. The evidence did not sustain the award of damages for plaintiff’s other claims.”

The issue presented is purely factual and we cannot conclude, from the record as made up, that the trial judge committed manifest error in either his conclusions with respect to liability or with respect to quantum.

For the reasons assigned, the judgment appealed from is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    John GUILLORY, Jr. v. FIDELITY AND CASUALTY COMPANY OF NEW YORK.
    No. 4431.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Nathan A. Cormie, Lake Charles, for appellant.
    Plauche & Stockwell, Lake Charles, for appellee.
   LOTTINGER, Judge.

This is a workmen’s compensation proceeding wherein the plaintiff seeks 400 weeks compensation at the rate of $30 per week for alleged permanent and total disability occurring on or about January 25, 1956 while employed as a laborer for Farns-worth & Chambers Company, Inc., the defendant’s insured. The petition alleged that the plaintiff was injured when he was attempting to start a gasoline engine and the crank struck him in the right side.

After the defendant filed an exception of vagueness the petition was amended to set forth that the injury sustained by the plaintiff was to his back in the lumbar 5 and 6 regions. The defendant then filed an answer in the nature of the general denial which also set forth that it had paid compensation at the rate of $30 per week for 2 weeks together with all medical expenses incurred by the plaintiff as a result of the alleged injury.

Following trial on the merits, judgment was orally rendered rej ecting the plaintiff’s demands. On rehearing, the original judgment was amended to allow plaintiff compensation at the rate of $30 per week for three weeks and two days subject to a credit of $60 for compensation already paid. The demands for medical expenses, penalties and attorney fees were rejected and the matter is now before us on an appeal taken by the plaintiff.

Dr. Emmett, a specialist in surgery, was the first to examine the plaintiff after the accident. He testified that the plaintiff complained only of his right side and abdomen, that there were no visible signs of trauma, bruises or contusions, but only subjective tenderness. Further the doctor stated that he saw Guillory about twelve times including three complete check-ups within a thirty day period. He interpreted x-rays of the kidneys and lumbar spine region and found them perfectly normal. Dr. Emmett was of the definite opinion that Guillory was not disabled:

“Q. So actually this period of time you observed Guillory and treated him, you were giving him the benefit of the doubt of what he said about himself, isn’t that right? A. Yes, Sir.
“Q. Then you concluded after this period of time that you could find nothing to account for what he was complaining of ? A. That’s right.
“Q. So, actually, Doctor, as far as your feelings were concerned, he would have been just as able to work at the time he came to see you as he was on the 24th if it wouldn’t have been for the fact that you were going through these tests to rule out and determine if there was anything you could discover to account for his complaints; isn’t that right? A. That is correct.”

Dr. Barham, a qualified surgeon who stated that he had in the past handled a large number of industrial cases, examined plaintiff on February 4, 1956, when Dr. Emmett was unable to see the plaintiff, but none to the lumbar region.

On August 10, 1956, Dr. Barham re-examined the plaintiff completely. Though there were then complaints of the back, the Doctor found the plaintiff had no disability and was able to return to work. Further the Doctor stated:

“Q. Even though he complained of pain in his back on August 10, 1956, and subj ective tests and what have you is one means of determining disability, you still feel like he was able to do work as of August 10th. A. John Gu-illory exaggerated his symptoms very much on August 10th, so no matter if you put pressure on his mid-back, lower back, on his sacrum, or even his coccyx, or the end of his spine, he flinched and said that he had pain. The other tests that we did to cross him up, when he should have had no pain he said that he had pain, and as a result of experience and seeing a.good many backs over a good many years, you learn to make a decision as to whether the patient has legitimate pain, or whether he is malingering. It was my opinion that John Guillory was exaggerating. He had no basis for the complaints, had no reason to say he had pain where I was examining him, and yet he maintained he had pain in his lower back.”

Dr. Frederick, a specialist in urology, examined the plaintiff at the request of Dr. Emmett for possible kidney stones. In the course of his examinations, the doctor was unable to find any injury to the plaintiff’s side though the accident was described to him. The doctor stated that he was primarily concerned in x-raying the plaintiff, but he still did not observe any external injury and probably would have noticed any evidence of injury because of the position in which the x-rays were taken. Further, the doctor found the plaintiff’s genito-urinary tract normal, thus, indicating no injury to that area.

Dr. Morin was asked to examine the plaintiff at the defendant’s request. He did so on September 5, 1956. At that time plaintiff complained of pain of the right side, right low back, and right leg. The doctor could find no objective signs as a basis for these complaints.

Dr. Schneider examined the plaintiff at the request of Dr. Price, the plaintiff’s physician. Dr. Schneider is an orthopaedic surgeon who has handled a large number of industrial cases. On July 10, 1956, the plaintiff complained of pain in the right side, right lumbar region, and right lower extremity. The doctor concluded that the plaintiff had no disability on either occasion that he examined him and that the tenderness complained of was not consistent with any type of disability. Further the doctor testified:

“Q. Isn’t it frequent in these cases that there is no objective symptoms responsive to the pain complained of? A. I think we have previously discussed that when I stated that many times we establish that factor as a diagnostic situation where we feel'that even though there are no definite objective findings there are enough corroborating subj ective findings — subj ective manifestations — to indicate disability. In this particular case I did not find that to be true as I previously stated.
“Q. Now, when you said disability, you mean disability from performing work of a reasonable nature? A. I mean disability of any type.
“Q. But you are not referring to pain alone, you are speaking of disability to use the physical function, or to use his back. A. Let me state that I did not find any factors present which I felt would evoke pain to promote disability on examination of this patient from the orthopaedic standpoint.”

Only Dr. Steve Price, a general practitioner, a witness for plaintiff, was able to observe any objective findings (muscle spasm) which he felt to be sufficient to say that the plaintiff was disabled. And he discharged Guillory in June, 19S6. Dr. Price further stated that the plaintiff returned to him on July 10, 1956, complaining of the same pains and the doctor could not find any objective signs to account for plaintiff’s complaints. He referred him to Dr. Schneider. Dr. Price found that the plaintiff could easily have returned to his usual and customary work in June, 1956, and actually discharged him at that time.

The lay testimony adds nothing to the plaintiff’s case and we are convinced from the medical testimony that he was not disabled at the time of the trial nor was he disabled on earlier examinations. We remain fully aware of the liberality which must be accorded cases of this type but the plaintiff must nevertheless prove his case by a preponderance of the evidence and this he has utterly failed to do.

For the reasons assigned the judgment appealed from is affirmed.

Judgment affirmed.


author: JANVIER, Judge. McBRIDE, Justice

text:
    The EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, Ltd., et al. v. EXCEL MACHINE WORKS, Inc., et al.
    No. 20822.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.
    Rehearing Denied June 24, 1957.

      John E. Fleury, Gretna, for defendant-appellant.
    James H. Drury, New Orleans, for plaintiffs-appellees.
   JANVIER, Judge.

Jessie N. White, employed by Eustis Engineering Company, hereinafter referred to as Eustis Company, as operator of a power plant on a drilling barge lying alongside other barges moored at the west bank of the Mississippi River opposite New Orleans, sustained injuries when the clevis or large hook, which was on the end of a cable used in pulling a large pipe from the bed of the river, became disengaged from the cable to which it was attached with the result that a large block or pulley fell from the top of a derrick and struck White on the head. He sustained a skull fracture which required two operations, and he was disabled for a few weeks. He then returned to work for his employer and has continued to do the same work in which he was previously engaged.

The employer, Eustis Company, had secured compensation insurance from Employers’ Liability Assurance Corporation, Ltd., and that company, hereafter referred to as Employers’ Company, paid to White compensation amounting to $100 covering the period of his disability, and it also paid various medical, hospital and other such bills made necessary by the accident.

Employers’ Company and White then brought this suit against Excel Machine Works, Inc., hereinafter referred to as Excel Company, and Michigan Mutual Liability Company, alleging that the latter was the liability insurer of the former and that the former had connected the clevis to the cable; that the connection had been defectively made and that the accident had resulted from this defective connection. Later it was conceded that the liability policy, which had been issued by Michigan Mutual Liability Company to Excel Company, did not cover the particular kind of liability which was involved here and, on joint agreement of counsel for all parties, the exception which had been filed by the “Michigan” Company was maintained and the suit as against that company was dismissed.

After filing an exception of vagueness, the Excel Company filed answer admitting that it had made the connection between the wire cable and the clevis, both of which had been furnished by the Eustis Company, that the accident had occurred, and that White had sustained injury. However, it denied that it was in any way liable for the injury to White, averring that the connection between the clevis and the cable had been made in accordance with specific instructions given to it by the Eustis Company. It also averred that the accident had resulted not from the defective connection between the clevis and the cable, but as a result of the fact that, in operating the machine by which the Eustis Company was attempting to pull the pipe from the bed of the river, White had applied to the cable too much strain and pressure and that the connection had pulled apart as a result of this negligent operation of the machine and that, since the machinery was operated by White, no recovery could be had. Excel Company further specially pleaded that White was guilty of contributory negligence in that he failed to make use of a metal helmet provided by his employer and which, if used, would have prevented the injury to his head, which resulted when the block or pulley fell upon it.

While we do not find in the record any exception or plea which expressly raises the issue, we note in the briefs of all parties, and we were told in oral argument, that defendant contends that, as a matter of law, it cannot be held liable to White or to the Employers’ Company for the reason that there was no privity of contract between White, the injured third person, and defendant, Excel Company. In other words, it is now contended by Excel Company that, since the work which it did was done for the Eustis Company and not for White, and since the work was completed by it and then was accepted by the Eustis Company, there is no right of action in White, a third person, to hold Excel Company liable.

After a trial on the merits, there was judgment against Excel Company in favor of White for $1,500 and in favor of Employers’ Liability Assurance Corporation, Ltd., for $580.57, for amounts paid to White in compensation and to the various doctors,hospitals, etc. for services rendered to White.

Our addition of the amounts paid in compensation, $100, and for medical and related bills, $465.57, totals only $565.57 and not $580.57. However, no objection was directed at this fact and we shall accept the total as $580.57 as stipulated. De minimis non curat lex.

From that judgment Excel Company has appealed suspensively and White has answered the appeal, praying that the amount awarded to him be increased to $10,000 as originally prayed for.

Since the contention, that White has no right to proceed against Excel Company because there was no privity of contract between him and that company, raises a question of law which, if decided in favor of Excel Company, would result in the dismissal of the suit without requiring that the facts of the matter be investigated, we shall first consider that question of law.

It is conceded that Eustis Company employed Excel Company to connect the cable and the clevis, and that when the work was completed, the cable and connected clevis were received by the Eustis Company. The question of whether a manufacturer who has manufactured a defective article, or a contractor who has done defective work, which defect in either case has caused damage to some other person, may be sued by that other person is a much discussed one, and on it there have been, for a long time, two divergent views. We think it unnecessary to discuss the question at length. We did so in Marine Insurance Company v. Strecker, La.App., 89 So.2d 517, 521, and, with one Judge dissenting, held that, under the facts shown there, the third person, who had been caused loss, could not maintain an action against the contractor. We said:

“ * * * there is no liability here since there was no contractual relationship between the contractor, defendant, and the tenant [the third person.]” (Brackets ours.)

However, a writ of certiorari was applied for and was granted by the Supreme Court, and when the matter was heard in that Court our opinion and decree were reversed (April 1, 1957) and, with one Justice dissenting, the Supreme Court held that there could be liability under those facts. The Court discussed the question of possible liability, of a manufacturer of an article, which, if defective, may be dangerous, and held that, if the manufacturer permits defects to be in the article, there may be liability to a third person injured as a result of the defects. The Court then said that there is a growing tendency to permit such third person to sue a manufacturer, or a vendor, or a contractor whether the defect be in the article or in the work performed by a contractor, and held that the contractor, under the facts shown in that case, might be held liable, saying:

“ * * * Several recent decisions have placed building contractors on the same footing as sellers of goods, and have held them to the general standard of reasonable care for the protection of anyone who may fore-seeably be endangered by the negligence, even after acceptance of the work. * * * ”

The Supreme Court has now granted a rehearing (May 6th, 1957) in that case and it may be that, on rehearing, it will adopt the views originally expressed by us.

Whatever may be the final decision there, we think that, in the case at bar, the facts present sufficient distinction to justify a holding that the injured third party may proceed directly against the contractor if it appears that the injury resulted from defective work of the contractor.

The distinction lies in the fact that here it is contended that the defect made itself apparent immediately after the work was delivered by the contractor, and that there was no possibility that it might be said that the injury did not result from that defect if there was a defect.

Another distinction lies in the fact that here, if there was a defect, it obviously resulted from the negligence of the contractor in the performance of the work, whereas in the Strecker case the defect was not in the work of the contractor, but was in a piece of hardware which the contract- or had purchased in the regular course of business from a hardware dealer.

'■ In view'of the fact that in this case the article caused the injury at the very first instant at which it was put to use, we conclude that there is a right in White and consequently in the Employers’ Company,, as subrogee, pro tanto to maintain an action against Excel Company. Consequently, if it appears that the injury resulted from defective work done by Excel Company for Eustis Company, White and Employers’ Company may recover. Let us then consider the facts.

Eustis Company was engaged in securing from the bed of the Mississippi River samples of the mud or earth into which must be driven pilings for the foundations of the Mississippi River bridge which is now under construction. These samples were to be tested in an effort to determine how deep the pilings should be driven. In securing these samples, large six inch pipes were driven into the bed of the river and then smaller pipes or tubes three inches in diameter were driven inside the six inch pipes. These smaller pipes were then drawn up and the earth or mud packed in them from the bed of the river and withdrawn was to be tested.

There was a drilling rig maintained on a barge and from this the pipes were driven and withdrawn when filled with earth. The larger pipes were then pulled up from the bed of the river. A crane was- employed and a cable was operated through a pulley or snatch block at the top of the crane and at the other end of the cable was the hook or clevis which was attached to the end of the pipe to be pulled up from the bed of the river.

This clevis was or should have been attached to the cable in the following manner : Through the upper part of the clevis, which upper part is about 2Yz inches thick, there is a hole which is tapered, being one-half inch in diameter at the top and about three-quarters of an inch in diameter at the bottom. The end of a half inch wire cable is inserted through the hole at the smaller end and out through the larger hole at the other end. About one and a half inches of cable is extended through the hole and the strands of the cable are then completely separated from one another into a kind of rosette and each is turned or doubled back along the body of the cable and the doubled end is then drawn and driven back into the hole in the clevis. Then there is driven into the doubled end of the cable a pin known as a dowel, which is tapered so that when the pin is inserted and it is driven in, it jams the cable so tightly in the tapered hole in the clevis that it is impossible for the cable to be drawn out when pressure is placed on the cable by the lifting machine.

After the pin is inserted molten babbitt metal is poured over the end of the cable and this metal in its liquid form permeates the entire end of the cable and makes it doubly secure. The tapered dowel pin, to which we have referred, is applied very much in the same manner as is the wedge which is driven into the smaller end of the wooden handle in the head of an ordinary hammer to expand the end of the handle and firmly fix it in the head.

The cable, as already stated, had been connected to the clevis by the Excel Company, and White had replaced an older cable with this one and had just commenced to exert pressure in an effort to remove one of the large six inch pipes from the bed of the river when the cable pulled loose fom the clevis, with the result that' the snatch block or pulley, which was at the top of the derrick or crane, fell fom its position and struck White on the head.

The entire question presented to us depends on a determination of whether the cable was properly attached to the clevis by the Excel Company. On behalf of that Company it is contended not only that it was properly connected, but also that that operation was performed exactly in compliance with the detailed instructions which had been given to the Excel Company by employees of the Eustis Company. Much evidence is devoted to the question of whether these instructions were given by the Eustis Company. We need not determine whether such instructions were actually given, for the reason that all parties agree that the connection should have been made just as we have described it, and a solution of the controversy depends not on whether the instructions were given, but on whether the cable was attached in the manner which all agree was correct.

There is no doubt at all that the cable did pull out of the clevis and that this was the cause of the accident. The cable did not break.

On behalf of Excel Company two witnesses testified that they had made the connection and that it was made exactly as described. John W. Denham, a blacksmith and welder of that company, says that he made the connection and that in doing so he was helped by Earl F. Lovas, a machinist in the employ of the Excel Company. However, the evidence produced by the plaintiffs is overwhelmingly convincing that, for some unexplained reason, a most important part of that operation was overlooked. The end of the cable was not doubled back when it was inserted through the hole in the clevis. It is shown that when the clevis pulled off the cable, its ends showed no signs of being doubled back or of the strands of the cable having been separated from one another.

Curtis L. Lundstom, Jr., employed by Eustis Company, when asked whether the cable, which had pulled out of the clevis, had “the strands bent down”, answered: “It definitely did not.”

James L. Gore, a civil engineer employed' by the Eustis Company, was present when the accident occurred and, though he did not see the end of this particular cable, said that if the strands of the end of the cable had been separated as they should have been ■ “they would have evidence of being frayed * * * »

Fred M. Henderson, a machine operator employed by Eustis Company, was present when the cable pulled out of the clevis. He examined the end of the cable after it had pulled out and says that there was no indication on its end that the wires had been separated and “V” shaped so that they could be pulled back into the tapered end of the hole in the clevis.

While the cable itself was not offered in evidence, there was produced a sample cable which all admitted was similar to that involved in the accident, and we are convinced from an examination of that cable that if the various strands had been separated and doubled back, even if it had pulled through the hole when pressure was applied to it, the end would not have remained in the original condition in which it was before the strands were separated. Witnesses who saw the cable after the accident say that its end was just as smooth as it would have been had the cable been merely cut off and inserted through the hole in the clevis and then affixed by the mere pouring of molten babbitt metal over it.

Furthermore it is shown that the babbitt metal which should have been poured over the junction and should have permeated the entire cable apparently was poured only over the top of it and was not more than about a quarter of an inch thick when the cable pulled away from the clevis.

But most important of all, we consider the fact that the record, which includes testimony of an employee of defendant itself, shows that if the cable had been properly attached to the clevis, the cable itself would have broken before the end of the cable could have pulled through the hole in the clevis.’

Denham, the employee of the company who made the connection, gave the following testimony:

“Q. If you had put it in there the way you described by inserting it through the clevis and bending the wires over and driving the dowel in and putting the babbitt in, would it have held up ? A. It should have until the cable broke.
“Q. Until the cable broke, isn’t that right? A. That is right.
“Q. In other words, it would be stronger than the cable itself, wouldn’t it? A. That is right.
“Q. In other words, this connection by this process of inserting the cable with ends frayed over into this conical part of the clevis, would be stronger? A. Should be.
“Q. Than the cable itself ? A. Should be.
“Q. So the cable should have parted somewhere down the line? A. That is right.
“Q. And not at that joint or connection ? A. That is right.
“Q. Before that thing would have pulled out, isn’t that right? A. That is right.
“Q. Did you ever know any of them to pull out in all the experience you have had fixing these things ? A. No, sir.”

Practically all witnesses corroborated this.

Inasmuch as defendant made the contention that the clevis pulled off the cable because too much pressure was applied to it by White, we merely answer that contention by stating that the evidence shows that very little pressure had been applied when the union between the cable and the clevis gave way.

All of the witnesses who were present say that very little tension was applied. Henderson, to whom we have already referred, said that the floating barge on which the derrick was located would “go down” slightly if much pressure had been applied in attempting to pull up the pipe and, at that particular time, the vessel did not “go down” at all. He stated that during the morning, when the earlier attempts were made to pull up that pipe, so much pressure had been applied that the barge had gone down noticeably.

Another contention of defendant is that, at the time of the accident, White was engaged in “dogging” the pipe, that is, in applying extreme pressure in jerks. In the first place, the evidence shows that at that time White was not engaged in “dogging” the pipe, and, in the second place, we again point to the fact that the record convinces us that, if the connection between the cable and the clevis had been properly made, the cable itself would have given way before it would have pulled out of the clevis and this is true whether White was engaging in “dogging” the pipe or in merely exerting pressure upon it.

The contention that White was guilty of contributory negligence in that he was not wearing the protective helmet which is provided by the Eustis Company cannot be accepted as sound. The record shows that the employees were not required to wear these helmets and we do not see that it could be said to be negligence on the part of White to fail to wear the helmet under the circumstances shown.

Counsel for defendant points to the fact that in spite of this occurrence, the Eustis Company has continued to employ the Excel Company in making similar connections, and it is argued that the Eustis Company must have felt that the Excel Company was not negligent in this case or it would not have continued to employ it for such work. For sometime in the past, the Excel Company had performed this same operation many times for the Eustis Company and its services in the past had always been satisfactory. The mere fact that on this one occasion there was carelessness would not justify the Eus-tis Company in refusing to ever again employ that company.

We have no hesitation in reaching the conclusion that the accident was caused by the negligence of Excel Company in not properly attaching the cable to the clevis, and accordingly, there is liability in the Excel Company to White for his injuries and to Employers’ Company for such amounts as it was required to expend as a result of the injury to White. '

At first it seemed that the accident would have a very serious and a permanent effect since it involved a skull fracture. Fortunately, however, it soon developed that the injury was not so serious as might have been expected. White was disabled for a little less than five weeks and though he was required to undergo two cranial operations, it is now obvious that there is no permanent disability and no danger of any future disability.

Dr. Howard Karr, when he last saw White, which was on January 26, 1954, reported that at that time White “was doing a full day’s work without difficulty.” He also said that though White had had headaches, they “were gradually going away.” And Dr. Karr completed his report by stating that White “had no residual disability.”

White himself stated that he had at first experienced excruciating pain and for about eight months had periodic headaches, but, with refreshing and commendable frankness, he stated that these headaches were disappearing and that he would not classify them as headaches. He said: “I wouldn’t exactly call them a headache, but now, maybe two or three sharp pains and that will be it.”

We have considered many cases in Louisiana involving skull fractures and find that there have been quite a number.

In Wilson v. Williams, La.App., 82 So.2d 71, a young girl five and a half years old, who sustained a fracture at the base of the skull and whose collarbone was fractured, was allowed $5,000. There was evidence of a ruptured eardrum and a slight concussion of the brain and for a short time there was serious doubt that she would survive.

In Webb v. Dunn, La.App., 15 So.2d 129, the Court of Appeal for the Second Circuit allowed $2,200 to a truck driver, who suffered a severe fracture at the base of the skull, had continuing headaches, and whose hearing might be permanently impaired.

In Blanke v. Miranne, La.App., 11 So.2d 264, we allowed $2,500 to a woman who suffered a fracture at the base of the skull with the loss of her sense of smell and of taste, which would not. be permanent.

In Lambert v. Cire, La.App., 179 So. 112, 116, we awarded $2,000 to a plaintiff who “sustained two linear fractures of the skull, one of the right temporal bone and the other of the left occipital .bone.”

In Young v. Carnahan Creamery, La.App., 157 So. 616, the plaintiff sustained a single fracture of the skull and a broken collarbone, but apparently there was no permanent effect, and the injury was treated as rather slight. ' He was allowed $1500.

In Harrison v. Shreveport Yellow Cab Co., La.App., 142 So. 724, the Court allowed only $1,000 to a plaintiff for a single skull fracture. He remained in the hospital only eight days.

In Guillot v. Baton Rouge Yellow Cab Co., 18 La.App. 202, 138 So. 219, the plaintiff sustained two fractures of the skull and his hearing was slightly affected. The Court of Appeal for the First Circuit increased the award from $2,000 to $3,000.

In Guinn v. Kemp, 18 La.App. 3, 136 So. 764, Mrs. Guinn sustained a fracture of the skull, puncture of the eardrum, permanently impairing her hearing and suffered severe pain for a week or ten days. However, the Court awarded only $1,200 for these injuries.

In Gauvereau v. Checker Cab Co., 14 La.App. 448, 131 So. 590, we allowed $2,-500 where the plaintiff sustained a single skull fracture and to some extent lost the sense of taste.

In Cusimano v. A. S. Spiess Sales Co., 153 La! 551, 96 So. 118, 120, a plaintiff was allowed $3,000 for a “fracture at the. base of the skull”. He was required to remain in a hospital about a week or ten-days and the Supreme Court said that though doubtless “the pain was great and the shock to the nervous system severe,” since the evidence was very meager, $3,000 was sufficient.

In Breen v. Walters, 150 La. 578, 91 So. 50, the plaintiff sustained a single skull fracture and was allowed only $1,000, but no application for an increase in the award' was made.

In several cases larger amounts have been awarded, but in each of them it was shown that there were other injuries and some permanent disability. See Miller v. Derusa, La.App., 77 So.2d 748; Brown v. Chicago, R. I. & P. Ry. Co., La.App., 14 So.2d 307; Pittman v. Hunter, La.App., 6 So.2d 786; Lowery v. Zorn, La.App., 157 So. 826.

The only residual with which plaintiff in the case at bar will suffer is a very slight depression in the skull which the doctors all agree will have no disabling effect.

Under all of the circumstances and considering the fact that a skull injury is necessarily serious, and the further fact that the plaintiff was required to undergo two operations and that he suffered from headaches for about eight months, we reach the conclusion that the amount awarded ($1500) is slightly insufficient and we have decided to increase it to $3,000, this, of course, in addition to the amount awarded to Employers’ Company.

The judgment appealed from is amended by the increase of the amount awarded to-plaintiff, Jessie N. White, to the sum of $3,000, with legal interest from judicial demand and, as thus amended, the judgment is affirmed; defendant to pay all costs.

Amended and affirmed.

McBRIDE, Justice

(dissents).

There was no contractual relationship •between plaintiff and defendant, the latter being an independent contractor. The general rule of law is that a contractor, manufacturer or furnisher of an article is not liable for negligence to a third person with whom he has no contractual relations. We discussed this proposition in Marine Insurance Company v. Strecker, supra, and I adhere to our views expressed therein and respectfully dissent.


author: McBRIDE, Judge.

text:
    Robert DUVIO v. Matt and Maybell THOMAS.
    No. 20866.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.
    Rehearing Denied June 24, 1957.
    Jorda S. Derbes, New Orleans, for plaintiff and appellant.
    Charles G. Merritt, New Orleans, for defendants and appellees.
   McBRIDE, Judge.

Plaintiff sues on a promissory note which was executed by defendants under the following circumstances. The parties entered into a written contract whereunder plaintiff undertook to furnish certain materials and perform certain plumbing work to defendants’ premises No. 2301 Lizardi Street, corner of Tonti Street, for the price and sum of $900. Defendants paid $300 on account of the contract price when the roughing-in work was completed, and the note sued on was given by defendants for the balance. The principal amount thereof is $689.88, which represents the balance of $600 on the contract price, plus capitalized interest of $89.88. Nothing was paid on the note and plaintiff now prays for a judgment for the principal amount, together with a penalty of $5 on each past due installment, and for 15 per cent attorney’s fees on both the principal and penalties.

Defendants admit signing the note, and their defense is that plaintiff was guilty of breach of contract and “the consideration for which the note was given no longer exists.” We consider this to be a plea of want or failure of consideration. Defendants then set forth that in five specific details (which need no enumeration here) plaintiff did not fulfill his contract and they owe him nothing on the note.

Plaintiff recovered judgment for $246 in the court below and he has taken this appeal.

We are dealing with a very confused record, and it is as difficult to understand some of the details of the plumbing contract as it is to comprehend the exact nature of defendants’ complaints. In addition, we are at a complete loss to understand how the trial judge arrived at the amount of the judgment.

However, after a painstaking analysis of the evidence, we conclude that while there has been a partial failure of consideration, as the trial judge undoubtedly found, still plaintiff is entitled to an increase in the amount awarded him.

The evidence shows that one of the items of work the contract contemplated was the installation of a water line, the cost of which was calculated to be $35. This water line was never installed in the premises by plaintiff. Nor did he install two hose bibs, the cost of which is admitted to be $16.

Defendants’ property is located in a section of New Orleans which, at the time the contract was entered into, had no public sewerage system and the residents of the vicinity were relegated to the use of septic tanks. It seems that plaintiff, for and on behalf of defendants, endeavored to secure the consent of the Sewerage & Water Board, which had jurisdiction of such matters, to connect defendants’ property with the sewerage system serving a schoolhouse located on Tonti Street, but the Board refused to grant permission for this to be done. Plaintiff, after negotiating with defendants and two other householders, entered into an agreement with them to lay a private sewer line on Lizardi Street with the idea in view of connecting therewith the premises of the persons for whom the private line had been constructed. Plaintiff’s testimony is that the cost of such private sewer line is from “$900 to $1,000” which was to be prorated among the owners of the three properties. The written contract between plaintiff and defendants, involved in the present suit, embraced defendants’ share of the cost of this private sewer line and the connection of their line thereto.

Just about the time plaintiff was about to complete the construction of the private sewer line, the Sewerage & Water Board, in a manner not clearly shown by the record, enlarged or made some sort of addition to the sewer line of the schoolhouse on Tonti Street, and plaintiff’s son, who was then engaged in performing the contract work at defendants’ premises, was informed by a representative of thfe Board that there was no objection to connecting defendants’ line with the sewer line of the schoolhouse. Plaintiff’s son then abandoned any thought of connecting defendants’ premises with the private sewer line on Lizardi Street and, without consulting defendants, took it upon himself to connect their line with the sewer system of the schoolhouse on Tonti Street.

Plaintiff, during the course of the trial in the lower court, voluntarily credited defendants’ account with the sum of $100 because of the above-mentioned deviation from the contract, but we -believe this credit is inadequate, and in all fairness defendants should have an allowance of the sum of $300. The private sewer line was to cost between “$900 and $1,000”'and defendants’ pro rata share thereof was one-third. Whereas plaintiff’s agent, his son, disregarded the contract provisions and did not connect defendants’ premises to the line on Lizardi Street, we can think of no reason why defendants should pay their proportionate cost thereof. The private line was of no benefit to them. It appears it would have required about 70 feet of pipe to connect onto the private line, whereas only 15 feet were necessary in making the connection on Tonti Street, and plaintiff is amply compensated for the laying of this 15 feet of pipe.

Therefore, defendants should be given an aggregate credit or offset of $351 against their note, which leaves a principal balance due of $338.88. No issue is made as to the $89.88, which apparently was the capitalized interest included in the principal of the note, and plaintiff is entitled to recover such balance, together with legal interest from judicial demand until paid. Where the consideration of a note partially fails and the amount of the failure is liquidated or can be definitely ascertained by computation, such partial failure should be allowed pro tanto against the note. 10 C.J. S. Bills and Notes § 523, p. 1150. He is also entitled to 15 per cent attorney’s fees as per the stipulation in the note.

But there can be no recovery of “late” charges. The note, payable in 36 monthly installments of $19.16, provides that the makers “promise to pay a late charge of five cents for each $1.00 (maximum $5.00) of each installment more than fifteen (15) days in arrears.” In other words, the makers agreed to pay a penalty of 96$ on each unpaid installment, which penalty by the terms of the note became due on the sixteenth day after the maturity date of each. This amounts to a stipulation for interest at a rate which exceeds 8 per cent per annum, the highest conventional rate which our law allows. LSA-C.C. arts. 1935 and 2924. Any agreement to pay a greater interest rate than 8 per cent per annum is null and void. Green v. Johnson, 14 La.App. 110, 129 So. 384.

For the reasons assigned, the judgment is amended so as to increase the amount thereof to $338.88, with legal interest from judicial demand until paid, together with 15 per cent attorney’s fees, and as thus amended and in all other respects, the judgment is affirmed. Defendants-appellees are cast for the costs of this appeal.

Amended and affirmed.


author: JANVIER, Judge.

text:
    The HOME INSURANCE COMPANY v. Joseph A. LASS, Sr. and Joseph A. Lass, Jr.
    No. 20903.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.
    Rehearing Denied June 24, 1957.

      McCloskey & Dennery, New Orleans, for plaintiff-appellant.
    George R. Blum, Donaldsonville, attorney for defendants-appellees.
   JANVIER, Judge.

In a “head-on” collision, .on the West bank River Road in the Parish of Jefferson, a 1949 Ford Tudor sedan, owned by Sidney Caire and driven by his son, Walton Caire, was so seriously damaged that it had to be sold practically for “junk”.

Caire had secured from the Home Insurance Company a policy of insurance as a result of which that company paid to him the $1200.00 it is admitted the car was worth prior to the accident, and secured from Caire a subrogation to any rights which he might have against any third person tort feasor who might have been responsible for the accident. The said insurance company then sold the car for $260.00 and brought this suit for $940.00 against Joseph A. Lassi Sr., and Joseph A. Lass, Jr., alleging that the collision with the Caire sedan had resulted from negligence of Lass, Jr., who was driving the truck which belonged to his father and which crashed into the sedan of Caire.

The plaintiff alleged that the accident had occurred in a sharp bend in the River Road and, as a result of the fact that as the Caire car was going around the curve to its left and was on the right or correct side of the road, it was struck “head-on” by the Lass truck; that young Lass was “not keeping a proper lookout” and was operating the truck on the left or wrong side of the road and was “attempting to take a sharp and blind curve at an excessive and unlawful speed.”

Defendants denied that the collision had resulted from negligence on the part of Lass, Jr.; averred that he was operating his truck on the correct side of the road and at a reasonable speed and “under full control” when the sedan of Caire “on the wrong side of the road” ran into defendant’s truck.

It was conceded that if there was any liability in defendants the amount thereof should be fixed at $940.00 which was the net loss resulting from the fact that the car had been worth $1200.00 and had been sold for $260.00.

There was judgment dismissing plaintiff’s suit and it has appealed.

Only an issue of fact is .involved, i.e., which vehicle was on the wrong side of the road.

Counsel for defendants assert in their brief that since only an issue of fact is involved and since that issue was resolved in favor of defendants, there should not be a reversal of the judgment, and in their brief they say:

“There are no physical facts which are determinative of the question and the matter therefore rests on the credibility of the witnesses.”

Counsel for plaintiff objects to this statement pointing out that there are several important physical facts which appear from the record and maintaining that those physical facts show that the sedan of Caire must have been on its right or correct side of the road when it was struck by the truck which, in negotiating the “blind curve”, must have swung far to its left across the center of the road and into the left front of the Caire sedan.

It is true that if we were forced to rely solely on the testimony of the eyewitnesses, it would be difficult to reach a conclusion as to just where the vehicles were when the crash occurred.

Lass, Jr., was alone in the truck and he says that he was on the right side of the road and that the Caire sedan was “more or less in the right hand lane coming around more or less in the center of the road.” What he meant was that the sedan was slightly to the truck’s side of the road and not on its correct side.

Both young Caire and his aunt, who was alongside him on the front seat, are positive that their car was well over to the right side of the road.

There are, as already stated, several significant facts which throw a great deal of light on the controversy. In the first place, there can be no doubt as to where the two vehicles came to rest after the impact. The sedan of Caire was far to its right side, in fact even beyond the right shoulder with its right wheels in the ditch alongside the shoulder. Young Caire says that as soon as he saw the truck he “pulled over to the shoulder of the road.” Lass, the driver of the truck, referring to the Caire car says: “The front wheels were in the ditch,” meaning the ditch on the side of the road which was proper for the Caire car and he said that his truck was across the road with its front end against the sedan.' In fact it was so far across the road -that one of its front wheels “could have been on the shoulder.”

Sergeant Joseph R. Capaci, the Highway Police officer who arrived shortly after the accident and made the usual inspection, says that the two vehicles had not been moved when he arrived; that the road was “wet” and “slick”; that the sedan was “off the road in the ditch,” on its correct side and that the truck “was across the highway,” meaning at a right angle across the highway with its front end against the sedan-which was off the highway to its right. The officer added that while there were no skid marks, “there were marks in the mud showing that the Ford automobile had gone into the ditch, and that it was struck off the paved portion of the highway.” He said too that the point at which the impact had occurred was indicated by “broken glass and debris” and that that was “off the paved portion of the highway.” He added: “It was right there where the car and truck came in contact, broken glass and mud.”

Lass, Jr., is obviously mistaken when he said that the collision had not occurred in the curve. He said: “ * * * I was just approaching it.” As a matter of fact, the evidence leaves no doubt at all that the impact occurred at the sharpest part of the curve and on the proper side of the road for the Caire sedan.

We can reach no other conclusion than that the truck of the defendant was on the wrong side of the road and swung too far to its left and into the Caire car.

It is contended that young Caire, the operator of the sedan, shortly after the accident, made a statement to the effect that he was late in getting to school. He denied having made the statement. Whether he made the statement or not is not particularly important because one of the witnesses for the defendant, Albert Blood, who says that he heard the statement made, says that what young Caire said was that “if he hadn’t been late he would have caught the bus and wouldn’t have taken the car,” which obviously meant that the accident would not have happened had he been in the bus.

Under all the circumstances we can reach no other conclusion than that the driver of defendant’s truck was at fault.

The judgment appealed from is annulled, avoided and reversed and there is now judgment in favor of plaintiff, The Home Insurance Company, and against defendants, Joseph A. Lass, Sr., and Joseph A. Lass, Jr., solidarily in the full sum of $940.00, with legal interest from judicial demand, and for all costs.

Reversed.


text:
    Emile M. DOLL v. Jack F. MALLARD et al.
    No. 20876.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.
    Rehearing Denied June 24, 1957.
    Frank P. Krieger, New Orleans, for plaintiff-appellant.
    Graham & Graham, New Orleans, for defendants-appellees.
   McBRIDE, Judge.

We previously adjudicated this matter on its merits. 77 So.2d 39. In our decree defendants-appellees were condemned to pay all court costs. Subsequently the defendants filed a rule in the lower court directed to Emile M. Doll, the plaintiff, ordering him to show cause why the amount of costs due by them should not be fixed and taxed at the sum of $82.80. Plaintiff made no appearance when this rule was called for trial on the return date, whereupon it was made absolute and the costs were taxed at said sum.

A few days later Doll filed a motion for a new trial in which he suggested to the court that the aforesaid judgment is contrary to the law and prejudicial' to his interests on several grounds: (1) that there is no party before the court having any interest in the subject matter of the rule; (2) that the rule disclosed no cause of action; (3) that the motion was not properly verified; (4) that the two-day notice of the filing of said rule was not given as required by Rule IX; (5) that there was no prayer for judgment against any party before the court, and (6) that no judgment had been prayed for against Emile M. Doll. The motion for a new trial was denied and Doll has taken this appeal from the judgment taxing the costs.

The only ground urged for reversal is that Doll had not been given a two-day notice of the filing of the rule as required by the aforementioned Rule IX of the trial court (the notice was served upon Emile B. Doll instead of Emile M. Doll), but we need not concern ourselves with the question of such notice vel non for the reason that the appellant has waived his right to make such complaint. It is well settled in our jurisprudence that when one who has not been properly served with citation or upon whom there was no service voluntarily makes his appearance in the case, he thereby waives any right to object to the insufficiency of citation or the lack of it. See Dart’s New Louisiana Digest, Vol. 3, “Citation and Appearance,” sec. 48, p. 378.

Doll in filing his motion for a new trial not only urged that he had not been served with citation, but also that the judgment was erroneous on five other grounds .as stated above. Once he urged these other •grounds in his motion for the new trial, it constituted a voluntary appearance which had the effect of effectively waiving any right he may have had to complain that the judgment was a nullity for the lack of notice or citation. We passed on this precise point in Keyes v. Dade, 8 La.App. 257, there saying:

“Exception to citation and return on petition is waived by voluntary appearance to urge motion for new trial on other grounds.”

We seriously doubt that Doll could have filed any sort of motion for a new trial without waiving his right to complain that he had not been cited. A motion for a new trial is not the correct remedy for annulling a judgment which is null for such reason. The Code of Practice provides that a judgment may be annulled where the defendant has not been legally cited and has not entered appearance or joined issue, but the nullity must either be demanded on appeal or by direct action by means of a petition as in ordinary suits. Arts. 606, 609 and 610.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

REGAN, J., absent, takes no part


text:
    Gloria DELESDERNIER, Wife of Paul MARCHAND, Jr. v. George W. DELESDERNIER, and Delesdernier Estates, Incorporated.
    No. 19815.
    Court of Appeal of Louisiana. Orleans.
    May 13, 1957.
    Rehearing Denied June 24, 1957.

      Duke, Porterie & Davison, New Orleans,for plaintiff and appellant.
    James I. McCain, New Orleans, for defendants, and appellees. ' .
   McBRIDE, Judge.

The provisions of Act 615 of 1954 amended LSA-C.C. art. 3519 respecting the abandonment or discontinuance of suit by adding thereto the following paragraph:

“Any appeal, now or hereafter pending -in any appellate court of the State, in which five years have elapsed without any step's having -been taken in the prosecution thereof, shall be considered as abandoned, and the court in which said appeal is pending shall'summarily dismiss such appeal."

This appeal was filed and docketed in this court on July 19, 1951. No steps were ever taken by any party in the prosecution thereof for more than five years. It was not until September 18, 1956, appellant moved that the cause be placed on our preference docket, and when the order was presented to the judge to whom the matter had been assigned, he refused to sign the same as his opinion was that the appeal had been abandoned.

On April 15, 1957, after due posting and notice to the attorneys for the parties, the appeal was called for dismissal under LS A-C.C. art. 3519, as amended, whereupon Mrs. Gloria Delesdernier Marchand, the-appellant, filed formal protest. This was done through present counsel who had not-theretofore appeared in the proceeding.

The purpose of the amendment to said codal .article is to prevent the clogging and congestion of the calendars and dockets of the appellate courts with appeals which might never be heard as the result of settlement, death of parties or otherwise. See State ex rel. Langenstein v. City of New Orleans, 228 La. 939, 84 So.2d 467.

Subsequent to the 1954 amendment of LSA-C.C. art. 3519, we amended our Rule XIX, 8 LSA-R.S., so as to read and provide as follows:

“Abandonment of Appeals
“Any appeal, now or hereafter pending, in which five years have elapsed without any steps having been taken in the prosecution thereof, shall be considered as abandoned and be dismissed in accordance with the provisions of Revised Civil Code Article 3519, as amended by Act No. 615 of 1954.
“Provided, that before any such appeal shall be so dismissed, the litigants and attorneys interested therein shall be given a thirty-day written notice that unless good and sufficient cause to the contrary is shown at or before a time to be fixed by the court, such dismissal shall take place; such notice shall be sent by ordinary mail to the attorneys of record of the parties and a copy thereof shall also be posted on the Bulletin Board in the Clerk’s Office. If the attorney for any party is deceased or his whereabouts unknown, or if any party be unrepresented by counsel, the posting of the notice in the Clerk’s Office shall be deemed good and sufficient notification.
“However, the right is reserved to the appellant or appellee in any case now pending in which no action has been taken for five years to move for the transfer of the case from the ordinary to the preference docket within a period of six months following the publication of this rule in the advance sheets of the Southern Reporter.”

The Courts of Appeal have authority to regulate appeals and the proceedings therein through the adoption of appropriate rules if they so desire. Art. 878.3, Dart’s Louisiana Code of Practice; LSA-R.S. 13:72; Const.1921 art. 7, sec. 27, Const. LSA; Cox v. Shreveport Packing Co., 212 La. 325, 31 So.2d 815.

Counsel for appellant in the protest suggests that the appeal was not abandoned and should not be dismissed, for the reason that it had been consign'ed to our ordinary docket upon filing and never had been reached or posted for hearing, and for the further reason that when the motion to transfer the cause to the preference docket was filed on September 18, 1956, this court had not yet taken steps to dismiss the appeal in accordance with the provisions of Paragraph 2 of Rule XIX, and therefore the motion was seasonable and constituted an active step in the prosecution of the appeal which prevented its being dismissed.

In support of her first ground of protest appellant cites the case of Veith v. Reynoir, 78 So.2d 543, decided by us March 14, 1955, in which we said that a case which had remained on the ordinary docket for more than five years and had never been called for trial should not be dismissed for want of prosecution as there was no requirement in our rules that the appellant must ask that such a case be transferred to the preference docket.

At the time we were considering the status of the Veith appeal we perceived a possible and very serious question as to the constitutionality of the 1954 Act which amended LSA-C.C. art. 3519 in that the amendment was to have retroactive effect but it afforded no reasonable space of time after its effective date within which an appellant could prevent his appeal from being dismissed by taking some affirmative step in its prosecution. Therefore, we decline to penalize Veith, whose appeal would have been annihilated by the retroactive effect of the amendment to the codal article which did not afford him a reasonable means or a method of saving his appeal.

As the result of the Veith case we thought it necessary to amend our Rule XIX and we adopted the amendment as above set forth, and particularly did we deem it necessary to supply by Paragraph 3 of the rule what the 1954 amendment to LSA-C.C. art. 3519 lacked, the giving of an opportunity to an appellant to prevent the dismissal of his appeal by moving that it be placed on the preference docket. A period of six months, which we deemed reasonable, following the publication of the rule in the Southern Reporter was granted. Such publication appeared in the advance sheets of March 24, 1955, 78 So.2d at page xxi. Said paragraph follows verbatim the language of Section 3 of Rule VIII of the Supreme Court, 8 LSA-R.S., relative to abandonment of appeals.

Notwithstanding publication in the Southern Reporter advance sheets on March 24, 1955, notifying parties at interest of the necessity of having their appeals placed on the preference docket, the present appellant filed her motion September 18, 1956, or not until about eighteen months after the publication of Rule XIX.

The second paragraph of the rule providing for a thirty-day written notice as a predicate for the dismissal of an abandoned appeal does not have the effect of extending to the appellant a right to proceed with the prosecution of the appeal up to the moment of the notification. All this court intended by providing for such thirty-day written notice was to give any party affected by LSA-C.C. art. 3519 an opportunity of showing to the court, if he can, any good reason why the appeal should not be dismissed, such as that the court had erroneously calculated the five-year period, that there actually had been an interruption of such period, etc.

It would be beyond our power to allow further or additional time to an appellant to prosecute the appeal after the five years of inaction had elapsed. The abandonment of the appeal results not from notification or the entry of the order of dismissal but from the operation of the 1954 amendment to LSA-C.C. art. 3519, and whenever the five-year period has elapsed, there is nothing the court can do save strike the appeal from the docket. Appellant is without further right to attempt to prosecute it. See Sandfield Oil & Gas Co., Inc., v. Paul, La.App., 7 So.2d 725, and the cases cited therein.

Not having taken advantage of the opportunity of having her appeal transferred to the preference docket before the five years had elapsed, or having taken other steps to interrupt the five-year period of inactivity,

The appeal is considered abandoned and it is forthwith dismissed.

Appeal Dismissed.


text:
    Paul TAUZIER v. Frank L. BONDIO, Individually and as Administrator of the Estate of Ralph Frank Bondio.
    No. 20673.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.
    Rehearing Denied June 24, 1957.

      Edgar Corey, New Orleans, for plaintiff-appellant.
    M. C. Scharff and Frank P. Lucia, New Orleans, for defendant-appellee.
   JANVIER, Judge.

Plaintiff, Paul Tauzier, a pedestrian, was struck and seriously injured by an automobile owned and operated by Ralph Frank Bondio, a minor 19 years of age, who, at the time, was living with his parents, Mr. and Mrs. Frank L. Bondio. As a result of the breaking of both the tibia and the fibia of plaintiff’s right leg, it became necessary that the leg be amputated.

Alleging that the accident had been caused solely by negligence on the part of young Bondio and that he himself had been to no extent at fault, Tauzier brought this suit against young Bondio and also against his father, Frank L. Bondio “individually and as administrator of the estate of his unemancipated minor son,” praying for sol-idary judgment against them in the sum of $25,002.50.

Defendants answered admitting the occurrence of the accident but denying that young Bondio had been at fault, and in the alternative, averring that the accident had been caused by the contributory negligence of Tauzier himself.

In the District Court there was judgment dismissing plaintiff’s suit and the matter is now before us on devolutive appeal.

The accident occurred at about 8:00 o’clock on the very rainy evening of March 4, 1950, near the corner of North Miro Street and St. Roch Avenue, in New Orleans. St. Roch Avenue is a double driveway thoroughfare having a neutral ground between the two roadways. North Miro Street has a single roadway and crosses St. Roch Avenue at a right angle.

Tauzier had alighted from a public bus and states that he was attempting to walk down North Miro Street across St. Roch Avenue and that he intended to go one block further along North Miro Street to Paris Avenue on which he lived.

Young Bondio was driving the automobile on North Miro Street and decided to turn to his left into the upper roadway of St. Roch Avenue, which roadway was 30 feet in width and was the roadway across which Tauzier was walking when he was struck. Tauzier had crossed the upper roadway of St. Roch Avenue and the neutral ground, and he says that, as he was walking from the neutral ground to the upper sidewalk of St. Roch Avenue, he noticed that there was a parked automobile which was standing alongside the curb of St. Roch Avenue and which directly blocked the pedestrian’s walkway on which he intended to continue his course up North Miro Street. He says that therefore instead of going directly across at the usual pedestrian lane, he found it necessary to turn a few feet to his left in order to pass around the front end of the parked car and then step from the roadway to the sidewalk of St. Roch Avenue and that thus when the accident occurred, though he was not at the pedestrian crossing, he was only about 10 or 15 feet to the left of it.

As Tauzier was crossing St. Roch Avenue, young Bondio in the automobile was proceeding up North Miro Street in the same direction in which Tauzier was walking and after he had completed his turn to the left, the lights of his car shown upon Tauzier who, Bondio says, was at that time about five feet from the front of the automobile. Tauzier was struck and knocked down. The fractures of his leg resulted and ultimately it was amputated.

It is contended by Tauzier that young Bondio was not maintaining a proper lookout ; that his attention was diverted to another pedestrian; that one of the lights of the car was broken; that the windshield wiper was not in operating condition, and that had Bondio been on the alert and had the car been properly equipped, the presence of Tauzier would easily have been discovered and the car brought to a stop before it could strike him.

Bondio, on the other hand, asserts that Tauzier was not crossing at or near the usual pedestrian lane but was at a point at which he, Bondio, had no reason to anticipate that a pedestrian would be crossing. He denies that the windshield wiper on the car was not working and he states that both of his headlights had been working and that one of them was broken by contact with Tauzier or with some object which Tauzier was carrying in his hand.

Bondio says that he could not discover the presence of Tauzier sooner than he did because his car was turning to his left and the lights therefore did not focus upon Tau-zier until the turn had been completed, and also because of the fact that it was raining rather heavily at the time; that the clothing of Tauzier was quite dark in color and, as already stated, because there was no reason for him to anticipate that Tauzier would be crossing some distance from the pedestrian lane.

Bondio says that when he first saw Tau-zier he was standing in the road. Tauzier, however, says that he was walking across and we have no doubt that his gait was as accelerated as he could make it, since it was raining “a slight downpour” and he had no raincoat or other protection against the weather. He was, to some extent, lame before the accident, but in spite of this we feel sure that he was going as fast as he could and that thus he was approaching the point at which he was struck from Bon-dio’s left so that the lights would not have shown upon him until the car had practically completed its turn.

There is a controversy over the question of just how far from the corner Tauzier was when he was struck. Bondio contends that he was 40 or 45 feet from the usual crossing.

The evidence leaves no doubt at all that Tauzier was carried to a residence on St. Roch Avenue which was 30 feet or more from the corner. Tauzier says that this was because he was first picked up by Bondio, placed in his car and driven a few feet from the point at which the accident had occurred, and that, since he insisted that he desired to go to the hospital in an ambulance, young Bondio, after driving for 25 or 30 feet, took him out of the car and into the residence in question. Bondio, on the other hand, says that he did not pick up Tauzier, and other evidence, especially that of Mrs. Carl Wonderly into whose residence Tauzier was carried, indicates that the accident occurred in front of her residence, which was at least 30 feet from the usual crossing.

Counsel for plaintiff seeks to convince us that young Bondio was not telling the truth in several instances, and he points to the fact that in the statement which Bondio made immediately after the accident, he placed the other pedestrian to whom his attention was partially diverted at one part of the intersection, whereas in his testimony in Court he placed this pedestrian at quite a different point.

Our conclusion is that young Bondio was not at fault. The car was being operated at a reasonable speed. Because of the rain and the color of the clothing of Tauzier and also because, as the record shows, that intersection was very poorly lighted, it cannot be said that he was at fault in not discovering the presence of Tauzier sooner than he did.

Counsel for plaintiff places great reliance on what he says is the similarity of the facts here to those found in Jackson v. Cook, 189 La. 860, 181 So. 195. The doctrine which was applicable in that case has, of course, been followed in many cases since, but we do not think it applicable here for the reason that although, when young Bondio commenced his turn, Tauzier was some distance away, at that time the headlights of the automobile were not focused upon him and there was no reason why Bondio should have discovered his presence sooner than he did.

The District Judge found Bondio without fault. We find no error in that conclusion.

Accordingly, the judgment appealed from is affirmed at the cost of appellant.

Affirmed.

REGAN, J., absent, takes no part.